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A WORKER WHO WAS INJURED IN NEW YORK BUT LIVES IN NEW JERSEY CAN SEEK TREATMENT FROM A NEW JERSEY DOCTOR WHO IS NOT AUTHORIZED BY THE WORKERS’ COMPENSATION BOARD, EVEN IF THE NEW JERSEY PHYSICIAN IS ALSO LICENSED IN NEW YORK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined claimant, who was injured in New York but resided in New Jersey, was not required to seek treatment from a New Jersey doctor who was authorized to provide treatment by the Board, even where, as here, the New Jersey doctor is also licensed in New York:

“Generally, a workers’ compensation claimant who is injured in New York is entitled to treatment by a physician of his or her choice so long as the physician is licensed to practice in New York and has been authorized by the Board to provide care and treatment to claimants” … . Nevertheless, under our established precedent, “claimants who were injured in New York but [reside in] other states are entitled to receive treatment from qualified physicians in their [home] state” … , as the statutory authorization requirements “could not have been intended to prohibit the retention of a physician in another State in appropriate circumstances” … . We find no basis to deviate from our precedent here, where claimant received medical treatment in his home state of New Jersey from a New Jersey licensed physician.

… 12 NYCRR 323.1 provides … that a New York licensed physician is permitted to seek authorization from the Board to provide medical services under the Workers’ Compensation Law and, being so permitted, “must obtain such authorization prior to treating injured workers under the Workers’ Compensation Law” … . We do not, however, read this provision to require a physician who provides medical services in another state and under a license obtained in that state to nevertheless seek authorization from the Board prior to treating a claimant merely because he or she also happens to be licensed in New York. Matter of Gomez v Board of Mgrs. of Cipriani, 2023 NY Slip Op 00900, Third Dept 2-26-23

Practice Point. A worker who resides in New Jersey and was injured in New York can seek treatment from a New Jersey doctor who is not authorized by the Worker’s Compensation Board, even if the New Jersey doctor is also licensed in New York.

 

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THE JUDGE’S LAW CLERK WHEN DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS MADE WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED AND PROSECUTED; THE APPEARANCE OF A CONFLICT OF INTEREST REQUIRED REVERSAL AND REMITTAL; ALTHOUGH THE ISSUE WAS NOT BEFORE COUNTY COURT, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction, determined the fact that the judge’s law clerk was District Attorney at the time of defendant’s indictment and prosecution presented the appearance of a conflict of interest:

… [T]he law clerk here does not appear to have been directly involved in defendant’s case during her term as District Attorney, nor do the allegations contained within defendant’s CPL 440.10 motion implicate the law clerk’s conduct in her former capacity as District Attorney. That said, it has been observed that “[a] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function” … , and it is well settled that “[n]ot only must judges actually be neutral, they must appear so as well” … . Accordingly, it was an improvident exercise of County Court’s discretion to rule upon defendant’s CPL 440.10 motion under these circumstances … . People v Thornton, 2023 NY Slip Op 00460, Third Dept 2-2-23

Practice Point: Although the issue was not raised in County Court, the Third Department considered the issue in the interest of justice and reversed the denial of defendant’s motion to vacate his conviction because of the appearance of a conflict of interest. The judge’s law clerk was the District Attorney at the time defendant was indicted and prosecuted.

 

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THE MAJORITY HELD THE RECORD WAS SILENT ON WHETHER THE POLICE, WHO DID NOT APPLY FOR A NO-KNOCK WARRANT, ENTERED THE APARTMENT WITHOUT PROPER NOTICE TO THE OCCUPANTS AND THE ISSUE WAS NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUE CAN BE ADDRESSED ON APPEAL UNDER INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS), THE RECORD SUPPORTED AN UNAUTHORIZED NO-KNOCK ENTRY AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the issue whether the police did not give proper notice to the occupants prior to entering and searching premises was not preserved for appeal. The two dissenters argued the issue can be addressed by the appellate court under the ineffective-assistance argument (no motion to suppress based on failure to provide proper notice before entering) and the seized evidence should have been suppressed. The police did not apply for a no-knock warrant and, according to the dissent, entered the apartment using a battering ram before announcing their presence:

… [T]he record is silent as to what the police said or did prior to effectuating entry into the apartment. Thus, without resort to inappropriate speculation, it simply cannot be concluded from the record before us that the police failed to knock and announce their presence before forcefully entering the apartment. * * *

From the dissent:

In our view, the record confirms, by the police officers’ own trial testimony, that they did not provide any advance notice prior to entering the apartment where defendant was ultimately apprehended. The record shows that members of the involved emergency response team (hereinafter ERT) entered the apartment through a rear door into a kitchen area that led to a living room. When asked how the door was opened, Jason Blowers — a police officer with the City of Johnstown Police Department — explained that “the breacher opened the door, the mechanical breach . . . . He hit the door with a ram.” Sergeant Michael Pendrick, the first member of the ERT to enter the apartment, confirmed as much, testifying: “[a]s we approached the rear apartment door . . . another officer had breached the door, the door popped open.” People v Hayward, 2023 NY Slip Op 00461, Third Dept 2-2-23

Practice Point: The majority found the record silent on whether the police, who did not apply for a no-knock warrant, entered the apartment without giving proper notice to the occupants and held the issue was not preserved for appeal. The two-justice dissent argued the issue could be addressed on appeal as ineffective-assistance (failure to move to suppress) and the evidence demonstrated the police entered with a battering ram before announcing their presence.

 

THE BOARD’S RULING THAT CLAIMANT WAS AN EMPLOYEE OF THE DELIVERY SERVICE WAS UPHELD; THE DISSENT ARGUED THE FACTS WERE MOST SIMILAR TO ANOTHER DECISION INVOLVING THE SAME EMPLOYER WHERE THE COURT FOUND NO EMPLOYER-EMPLOYEE RELATIONSHIP (THIRD DEPT).

The Third Department, over a dissent, upheld the Unemployment Insurance Board’s ruling that claimant was an employee of the delivery service (NEL) entitled to unemployment insurance benefits:

… [A]fter claimant applied to be a delivery driver, NEL conducted a screening process that included a verification of claimant’s driver’s license, a Department of Motor Vehicles background check and proof by claimant of relevant insurance coverage. Thereafter, NEL and claimant executed a written “Owner Operator Agreement,” wherein claimant was required, among other things, to provide a safe vehicle, maintain relevant licenses and insurance and to provide NEL with invoices for completed client engagements in order to be paid. Claimant and NEL negotiated a set rate of pay and claimant was responsible for all expenses, including the cost of fuel and equipment, but NEL provided that claimant’s pay could be increased during times of high fuel prices by way of a fuel surcharge. Claimant was required to pay an administrative fee to NEL for each day of provided services. Claimant could refuse any assignment and could subcontract out an accepted assignment. If an accepted assignment could not be completed, claimant was required to notify NEL, and it was then NEL that provided another delivery driver. NEL also provided claimant with the client’s address and the time that claimant was to report there. Any complaints made to NEL’s client regarding claimant were forwarded to NEL, which NEL handled.

It is true that claimant bears some similarities to the claimant in Matter of Pasini (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1187 [3d Dept 2022]). The facts here, however, are more in line with Matter of Legros (Northeast Logistics, Inc.—Commissioner of Labor) (205 AD3d 1245 [3d Dept 2022]) and Matter of Rivera (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1185 [3d Dept 2022]), where the finding of an employment relationship was upheld. That said, although there is evidence in the record that could support a contrary determination, in view of the evidence credited by the Board, substantial evidence supports the finding that an employment relationship exists … .

From the dissent:

Given the distinct similarity between the circumstances here and in Pasini, it is my view that the record lacks substantial evidence of the requisite control to establish an employer-employee relationship. Matter of McIntyre (Northeast Logistics, Inc.), 2023 NY Slip Op 00465.Third Dept 1-2-23

Practice Point: This case illustrates the importance of precedent based on similar facts in unemployment-insurance cases. Here the majority held the facts were similar to another case involving the same employer where an employment relationship was found. The dissent argued the facts were most similar to another case involving the same employer where no employment relationship was not found.

 

PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the two falls by petitioner police officer were not compensable “accidents” within the meaning of the Retirement and Social Security Law and petitioner was not entitled to accidental disability retirement benefits. The opinion discusses in some depth the difficulties of determining what is and what is not an “accident” in this context:

… [P]etitioner testified … he was assigned to the midnight shift and was in his patrol car when, at approximately 1:00 a.m., he became suspicious upon observing a light coming from the second floor of a house that was under construction. According to petitioner, it was “very dark” around the house due to the lack of streetlights in the area. Petitioner took a flashlight and began walking around the perimeter of the house, illuminating the second floor of the house as he walked, in accordance with police protocol. As he continued walking the perimeter of the house, petitioner fell in a three-foot-deep hole in the ground that had been dug alongside the house. As petitioner’s regular employment duties included conducting investigations in the dark, the risk that he might fall due to an unseen condition while engaged in such activity is an inherent risk of that employment … .

… [P]etitioner testified that, at approximately 2:00 a.m. … , he was investigating a report of a “suspicious party going through cars in a parking lot.” According to petitioner, it was drizzling that morning, and the area of the parking lot was dark. Petitioner was using a flashlight and, as he descended a wooden stairway that connected the parking lot to a baseball field, he was illuminating the field with the flashlight when he slipped and fell. Petitioner testified that, after his fall, he observed “green algae [and] mold,” as well as leaves, on the stairs. “When carrying out some police duties, an officer on foot may encounter, as part of the work being performed, a vast array of conditions, many of which are not easily traversed and can cause a fall. Encountering such conditions while actively engaged in police duties often is not an unexpected event, and the Comptroller may find a fall caused thereby to be an inherent risk of the job” … . Matter of Compagnone v DiNapoli, 2023 NY Slip Op 00354, Third Dept 1-26-23

Practice Point: This opinion should be consulted when trying to determine what constitutes a compensable “accident” within the meaning of the Retirement and Social Security Law.

 

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DEFENDANT’S RAPE CONVICTION BASED SOLELY ON HIS UNCORROBORATED ADMISSION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). ​

he Third Department, reversing defendant’s conviction on one count of rape in the second degree, determined there was no corroboration of defendant’s admission to having sex with the victim. Therefore, the conviction was not supported by legally sufficient evidence:

After reviewing the record, we find no evidence corroborating defendant’s admission that he and the victim engaged in sexual intercourse “a few times” in August 2017. Due to the lack of corroboration, the evidence is legally insufficient to support that conviction, and the charge under count 1 must be dismissed … . People v Bateman, 2023 NY Slip Op 00249, Third Dept 1-19-23

Practice Point: A conviction which rests solely on an uncorroborated admission is not supported by legally sufficient evidence.

 

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CONFLICTING EVIDENCE OF DECEDENT’S TESTAMENTARY CAPACITY AND PETITIONER’S UNDUE INFLUENCE PRECLUDED SUMMARY DISMISSAL OF RESPONDENT’S OBJECTIONS TO THE WILL SUBMITTED FOR PROBATE BY PETITIONER (THIRD DEPT). ​

The Third Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the respondent’s (decedent’s niece’s) objections to the probate of the will submitted by petitioner (decedent’s agent) should not have been dismissed. Decedent, in a 2011 will, made respondent the sole beneficiary of his estate. Subsequently decedent executed a 2015 will making petitioner the sole beneficiary of his estate. The Third Department found summary judgment dismissing respondent’s objections was inappropriate because there was conflicting evidence of decedent’s testamentary capacity and petitioner’s undue influence:

… [T]he witnesses affirmed that beginning in late 2014, decedent’s personal hygiene declined, he acted unusual, was confused and forgetful. The medical records, spanning from the fall of 2014, including a contemporaneous record four days subsequent to the execution of the 2015 will, are replete with observations that decedent refused to care for himself resulting in numerous hospitalizations for hyperglycemia, hypoglycemia and urinary tract infections. The records contain multiple entries that decedent suffered from an altered mental state, confusion and was incoherent. This evidence is sufficient to raise an issue of fact regarding decedent’s testamentary capacity … . * * *

Much of the evidence submitted by respondent on the issue of testamentary capacity is also relevant to the issue of undue influence … . Respondent’s witnesses all affirm that while residing at the assisted living facility, decedent was lethargic, frequently complained of being ill, slept a good deal, was unresponsive and was in a weakened state. Decedent’s closest friend described him as being easily manipulated, and stated that he was especially vulnerable to petitioner, with whom he was infatuated. In presenting evidence demonstrating decedent’s physical decline, coupled with his increasing confusion and personality changes, respondent has raised an issue as to whether decedent was unduly influenced by petitioner … . Matter of Linich, 2023 NY Slip Op 00250, Third Dept 1-19-23

Practice Point: Summary judgment is rarely appropriate in a contested probate proceeding. Here conflicting evidence of decedent’s testamentary capacity and petitioner’s undue influence precluded summary judgment dismissing respondent’s objections to probate.

 

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THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the petitioner (Schenectady County Department of Social Services) did not demonstrate father (respondent) had abandoned the children and, in fact, had improperly prevented father from visiting the children. The abandonment petition should have been dismissed:

… [P]etitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights … . The record demonstrates that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent has been an active participant during the entire proceeding … . Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The record further reflects that respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic.

… There are several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with [*3]the children due to his late confirmation of the scheduled visit or arrival — including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. * * *

Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker — who relied on text messages from the coordinator, who did not testify at the hearing — petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children. Matter of Syri’annah PP. (Sayyid PP.), 2023 NY Slip Op 00252, Third Dept 1-19-23

Practice Point: Here the caseworkers took steps to affirmatively prevent father from seeing his children. The abandonment petition should have been dismissed for failure to demonstrate father’s intent to forego his parental rights.

 

ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s custody modification petition should not have been dismissed. Mother’s allegations that father had not abided by the visitation terms (visits must be in a public place) and father used drugs during visitation adequately alleged a change in circumstances:

To establish a change in circumstances, the party must demonstrate “new developments or changes that have occurred since the previous custody order was entered” … . Testimony at the fact-finding hearing established, by a preponderance of the evidence … that the father was not abiding by the visitation terms as set forth in the prior order…. . Specifically, although the prior order required that the father’s visitation occur in a public place, the preponderance of the proof demonstrated that much of it was occurring in private residences or hotels. Moreover, there was also testimony that the father was using drugs during the child’s visits. Given the circumstances of this case, the father’s failure to comply with the visitation terms as set forth in the prior order constitute a change in circumstances … . Matter of Harvey P. v Contrena Q., 2023 NY Slip Op 00257, Third Dept 1-19-23

Practice Point: Failure to abide by visitation terms can constitute a change in circumstances which will support a modification of custody.

 

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ALTHOUGH THE RECORD SUPPORTED FATHER’S PERMANENT NEGLECT AND THE TERMINATION OF FATHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING ABSENT FATHER’S CONSENT; MATTER REMITTED (THIRD DEPT). ​

The Third Department determined that although the record supported terminating father’s parental rights based upon permanent neglect, Family Court should not have dispensed with the dispositional hearing absent the consent of the parties:

Both petitioner and the attorney for the child share the position that Family Court properly dispensed of the matter without a separate dispositional hearing and, alternatively, that there is sufficient evidence in the record for this Court to render a disposition. However, Family Ct Act § 625 (a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Here, the court stated that there was “no need for a further or separate dispositional hearing” before rendering its determination that respondent had permanently neglected the child and terminating his parental rights. However, there is no indication that respondent affirmatively consented to dispense with the hearing and, “absent consent, the requirement of a dispositional hearing may not be circumvented” … . Matter of Harmony F. (William F.), 2023 NY Slip Op 00259, Third Dept 1-19-23

Practice Point: Here, even though the record supported Family Court’s termination of father’s parental rights, in the absence of father’s consent, Family Court should not have dispensed with the dispositional hearing.

 

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