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THE RECORD DOES NOT REFLECT THE MEASURES TAKEN BY THE HEARING OFFICER TO DETERMINE THE BODY CAMERA FOOTAGE REQUESTED BY THE PETITIONER DID NOT EXIST; DETERMINATION ANNULLED AND NEW HEARING ORDERED (THIRD DEPT).

​The Third Department, annulling the misbehavior determination, held that petitioner-inmate’s request for body camera footage was improperly denied:

We … find merit to petitioner’s contention that his request for body camera footage was improperly denied. Upon petitioner’s request for such footage at the hearing, the Hearing Officer responded that the correction officer’s body camera was turned off and, therefore, such footage did not exist. The record does not reflect the measures taken or the basis upon which the Hearing Officer concluded that the footage did not exist … . As such, petitioner’s request for the body camera footage was improperly denied and, under these circumstances, the appropriate remedy is remittal for a new hearing … . Matter of Dorcinvil v Miller, 2022 NY Slip Op 06972, Third Dept 12-8-22

Practice Point: Here the petitioner-inmate requested body camera footage. The hearing officer denied the request, saying that the body camera had been turned off. Because the record did not reflect the steps taken by the hearing officer to defermine the footage didn’t exist, the determination was annulled and a new hearing was ordered.

 

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THE INSURANCE POLICY EXCLUDED COVERAGE FOR BODILY INJURY INTENDED OR EXPECTED BY THE INSURED; HERE THE INSURED UNINTENTIONALLY STRUCK COLE, WHO WAS ATTEMPTING TO BREAK UP A FIGHT BETWEEN THE INSURED AND A THIRD PERSON; BECAUSE THE INJURY TO COLE WAS UNINTENDED, THE INSURER WAS REQUIRED TO DEFEND THE INSURED IN COLE’S PERSONAL INJURY ACTION AGAINST THE INSURED (THIRD DEPT). ​

The Third Department determined plaintiff insurer was required, under the terms of the policy, to defend the insured, LePore, in the personal injury action by Cole against LePore. LePore was fighting with another and Cole was injured attempting to break it up. The policy excluded coverage for bodily injury intended or expected by the insured. The complaint alleged LePore negligently and carelessly struck Cole when LePore was trying to strike another person:

Plaintiff contends that no coverage exists under the insurance policy because LePore intended to cause physical harm to another person. An insured, however, may be indemnified for an intentional act that causes an unintended injury … . To determine whether a result was accidental, “it is customary to look at the causalty from the point of view of the insured, to see whether or not, from [the insured’s] point of view, it was unexpected, unusual and unforeseen” … . In describing the incident at issue, LePore stated that she did not intend to hit Cole. The record also contains evidence that Cole was inadvertently hit. In view of this, a sufficient basis exists to conclude that Cole’s injuries were not expected or intended within the embrace of the policy exclusion … . To that end, LePore can be indemnified under the policy, not because she acted negligently, but because her intentional act caused unintended harm. …

Plaintiff may be correct that LePore committed an intentional tort based upon [the transferred-intent] doctrine. … Plaintiff, however, erroneously conflates tort principles with contract principles — the latter of which governs the interpretation of insurance policies … . Vermont Mut. Ins. Group v LePore, 2022 NY Slip Op 06978, Third Dept 12-8-22

Practice Point: Here the insurance policy excluded coverage for bodily injury intended or expected by the insured, LePore. Cole was injured when LePore unintentionally struck her as Cole tried to break up a fight between LePore and another. Because LePore injured Cole unintentionally, the insurer was obligated to defend LePore in the personal injury action brought by Cole.

 

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BEFORE SENTENCING DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER, THE COURT DID NOT MAKE A FINDING WHETHER THE TEN-YEAR LOOK-BACK FOR ANY PREDICATE VIOLENT FELONY WAS TOLLED BY A PERIOD OF INCARCERATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL; MATTER REMITTED FOR RESENTENCING (THIRD DEPT). ​

The Third Department, remitting the matter for resentencing, determined the court did not make a finding about whether the 10-year look-back for a predicate violent felony was tolled by periods of incarceration. The issue survives a waiver of appeal and, because the issue is clear from the record, was properly raised for the first time on appeal:

To qualify as a predicate violent felony, the sentence for the prior violent felony “must have been imposed not more than [10] years before commission of the felony of which the defendant presently stands convicted” (Penal Law § 70.04 [1] [b] [iv]). “In calculating this 10-year look-back period, ‘any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such 10-year period shall be extended by a period or periods equal to the time served under such incarceration'” … .

The instant offense occurred on March 3, 2018. Prior to sentencing, the People filed a predicate statement indicating that defendant had previously been convicted of a violent felony in 2004 … . The People also submitted a presentence report which demonstrated that defendant was convicted of additional felonies in 2010 and 2014, but — as the People concede — neither the predicate statement nor the presentence report established the time periods during which defendant was incarcerated during the time between the two violent felonies in order to toll the 10-year look-back period … . People v Faulkner, 2022 NY Slip Op 06957, Third Dept 12-8-22

Practice Point: Before sentencing defendant as a second violent felony offender, the sentencing court did not make a finding whether the ten-year look-back for a predicate violent felony was tolled by a period of incarceration. The issue survives a waiver of appeal and was properly raised for the first time on appeal. The matter was remitted for resentencing.

 

PETITIONER CHIROPRACTOR ACKNOWLEDGED RECEIVING PAYMENTS DIRECTLY FROM A MEDICAL EQUIPMENT PROVIDER IN VIOLATION OF THE WORKERS’ COMPENSATION LAW; BECAUSE THERE WERE NO CONTESTED FACTS, THE WORKERS’ COMPENSATION BOARD HAD THE POWER TO REMOVE PETITIONER FROM THE LIST OF AUTHORIZED MEDICAL PROVIDERS WITHOUT HOLDING A HEARING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch (too detailed to fully summarize here), determined petitioner chiropractor was not entitled to a hearing before the Workers’ Compensation Board removed petitioner from the list of authorized medical providers. Petitioner acknowledged taking payments directly from a supplier of medical equipment, which is a violation of the Workers’ Compensation Law. Petitioner’s only argument on appeal was his entitlement to a hearing before removal from the list. After analyzing the applicable statutes, the Third Department determined, absent any contested facts about the statutory violation, petitioner was not entitled to a hearing:

… [W]e agree with respondent that the chair [Workers’ Compensation Board] has authority independent of the CPC [chiropractic practice committee] to conduct an investigation, find that the provider is disqualified from rendering care under the Workers’ Compensation Law for statutorily specified acts of misconduct and, upon such a finding, remove the provider from the list of authorized chiropractors (see Workers’ Compensation Law § 13-l [10], [12]; see also Workers’ Compensation Law § 13-l [10] [g]). * * *

In an instance where questions of fact attend the asserted charges of professional misconduct or incompetency, a hearing would be in order. Here, however, petitioner has admitted and documented his receipt of payments from [the medical equipment supplier] for treatment rendered to workers’ compensation claimants in direct violation of Workers’ Compensation Law § 13-l (10) (g). Under these circumstances, no hearing was warranted and respondent’s decision to remove petitioner from the list of authorized providers was not arbitrary and capricious. Matter of Levi v New York State Workers’ Compensation Bd., 2022 NY Slip Op 06850, Third Dept 12-1-22

Practice Point: In the absence of contested facts about whether petitioner-chiropractor violated the Workers’ Compensation Law by taking payments directly from a medical equipment provider, the Workers’ Compensation Board properly removed petitioner’s name from the list of authorized providers without first holding a hearing.

 

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THE COURT DID NOT CONDUCT ANY INQUIRY TO DETERMINE WHETHER A THREE-YEAR-OLD CHILD HAD THE CAPACITY TO TESTIFY; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction in this sexual abuse case, held the court should have conducted an inquiry of a three-year-old child to determined the child’s capacity to testify. The child was the alleged victim of the sexual abuse:

It is undisputed that, prior to the child giving unsworn testimony, County Court did not conduct any form of inquiry or examination of the child to determine whether the child possessed sufficient intelligence and capacity to give unsworn testimony … . Without such inquiry or examination, the court could not make any determination as to whether the child was competent to give unsworn testimony. Indeed, there is no indication that the court made any findings or specific determination of the child’s competency … . In view of the foregoing, the court erred by failing to conduct an inquiry of the child that satisfied the commands of CPL 60.20 (2) … . The People contend that the initial questioning by the prosecutor and the child’s responses thereto concerning pedigree information satisfied the strictures of CPL 60.20 (2). Even if we agreed with the People that such questioning was procedurally proper, the colloquy between the prosecutor and the child fails to disclose that the child “understood the difference between a truth and a lie and was competent to testify” … . People v Reed, 2022 NY Slip Op 06657, Third Dept 11-23-22

Practice Point: Here the court did not conduct any inquiry to determine whether a three-year-old child had the capacity to testify. The child was the alleged victim of the charged sexual abuse. The conviction was reversed.

 

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EVIDENCE OF ABUSE OR NEGLECT OF ANOTHER CHILD IS ADMISSIBLE IN A MODIFICATION OF CUSTODY PROCEEDING; ALTHOUGH CHILD PROTECTIVE SERVICES RECORDS REGARDING NEGLECT ARE HEARSAY, THE HEARSAY IS ADMSSSIBLE IF CORROBORATED (THIRD DEPT).

The Third Department, reversing Family Court in this modification of custody proceeding, determined it was error to exclude Child Protective Services (CPS) records regarding mother’s alleged neglect of another child. Family Court excluded the records because the proceeding was not a neglect proceeding and because the evidence was hearsay. The Third Department noted that evidence of abuse or neglect is admissible in a custody proceeding and hearsay is admissible if corroborated:

The agency records that the father sought to admit are not in the record and, thus, not before this Court. A review of the father’s modification petition reveals that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the [mother’s] home[,]” that the subject child has indicated there is domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition states that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the [mother’s] home and that he goes without meals.” Based on the foregoing, Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. In this respect, although this is not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence . As such, this case must be reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions. Matter of Sarah QQ. v Raymond PP., 2022 NY Slip Op 06659, Third Dept 11-23-22

Practice Point: Evidence of abuse or neglect of another child is admissible in a modification of custody proceeding. Although agency records concerning neglect are hearsay, the records would be admissible if the hearsay is corroborated.

 

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THE THREATS ALLEGEDLY MADE TO PETITIONER WERE NOT MADE IN PUBLIC AND THERE WAS NO EVIDENCE THE THREATS WERE MADE WITH THE INTENTION TO CAUSE A PUBLIC DISTURBANCE; THEREFORE THE FAMILY OFFENSE PETITION ALLEGING DISORDERLY CONDUCT SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the alleged threats against petitioner were made privately and did not create a public disturbance. In addition, there was no proof the alleged threats were made with the intent to cause a public disturbance. Therefore the petition alleging disorderly conduct as a family offense should have been dismissed:

… “[A] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] . . . [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20 [1]). Pursuant to both CPL 530.11 (1) and Family Court Act § 812 (1), “‘disorderly conduct’ includes disorderly conduct not in a public place.” Yet, “even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct” … . * * *

… [P]etitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same … . In this respect, petitioner’s evidence does not establish that respondent’s actions were public in a manner that would support such a finding … . Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat … ; however, the record reveals that respondent appears to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene … . Further, although the police were called on one instance, without a police report in evidence, it is impossible to determine which one of the parties — or if, in fact, a neighbor — had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance. Matter of Kilts v Kilts, 2022 NY Slip Op 06660, Third Dept 11-23-22

Practice Point: To prove the family offense of disorderly conduct, the conduct must occur in public or must have been motivated by the intention to cause a public disturbance. The petitioner did not meet her burden of proof and the family offense petition should have been dismissed.

 

THE NINE YEARS OF PENSION CREDITS THE HUSBAND EARNED BEFORE THE MARRIAGE ARE HIS SEPARATE PROPERTY; HOWEVER THE MARITAL FUNDS USED TO PURCHASE THOSE CREDITS DURING THE MARRIAGE ARE SUBJECT TO EQUITABLE DISTRIBUTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this divorce proceeding, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the pension credits earned by the husband during the nine years prior to the marriage were his separate property. But the marital funds used to purchase those credits during the marriage were subject to equitable distribution:

“[A] pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date” … . “Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. Thus, that portion of a pension based on years of employment during the marriage is marital property” … . In effecting the intent of Domestic Relations Law § 236 (B), the Court of Appeals held that “these post-divorce benefits were marital property to the extent that they were compensation for past services rendered during the marriage” … . Accordingly, “it becomes evident that an employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property” … . * * *

… [C]ompensation for past services earned prior to the marriage is separate property. The nine years of premarriage … credits were earned outside the marriage and are based on the fruit of the titled spouse’s sole labors. As they are not due in any way to the indirect contributions of the non-titled spouse … , the wife’s contention that she is entitled to an equitable share of any “appreciation” in the value of credits that have been classified as the husband’s separate property is unpersuasive. The acquisition of the separate pension credits cannot serve to transform such property into a marital asset.

… [A]s marital funds were utilized to purchase the pension credits, said funds are subject to equitable distribution. Szypula v Szypula, 2022 NY Slip Op 06664, Third Dept 11-23-22

Practice Point: The husband earned nine years of pension credits before the marriage. Those pension credits are husband’s separate property. During the marriage the pension credits were purchased with marital funds. [T]hose funds are subject to equitable distribution.

 

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FAMILY COURT’S BEST INTERESTS RULING IN THIS MODIFICATION OF CUSTODY PROCEEDING DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD; THE APPELLATE DIVISION AWARDED PRIMARY PHYSICAL CUSTODY TO MOTHER (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody should have been granted:

Having concluded that Family Court’s determination lacks a sound and substantial basis in the record, we are empowered to make our own independent determination of the child’s best interests, and our authority in that regard is as broad as that of Family Court … . In reviewing the record, we note that the mother testified without contradiction that she does not abuse alcohol or drugs, and while she previously struggled with her mental health, the hearing evidence showed that she has overcome that challenge and achieved a stable home life. By contrast, we find problematic the evidence of the father’s regular drinking in the child’s presence and his apparent lack of candor during the DWI assessment, as well as the dirty and unkempt condition of his apartment. We also find significant the strong position of the appellate attorney for the child in support of the mother’s petition … . In light of the foregoing, we hold that the child’s best interests are served by having the parents continue to share joint legal custody but awarding primary physical custody to the mother, with parenting time for the father as the parties shall mutually agree … . Matter of Brittni P. v Michael P., 2022 NY Slip Op 06667, Third Dept 11-23-22

Practice Point: The appellate court, reversing Family Court, held the evidence did not support Family Court’s best interests ruling continuing primary physical custody with father. The appellate court undertook its own analysis of the record and awarded primary physical custody to mother.

 

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PURSUANT TO LABOR LAW SECTION 511, THE NEW YORK CITY SUPPER CLUB WAS NOT THE EMPLOYER OF THE MUSICIANS, DANCERS AND OTHER PERFORMERS WHO ENTERTAINED AT THE CLUB; THEREFORE THE CLUB WAS NOT OBLIGATED TO MAKE UNEMPLOYMENT INSURANCE CONTRIBUTIONS ON BEHALF OF THE PERFORMERS (THIRD DEPT).

​The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the musicians, dancers and other artists who performed at a New York City supper club (Griffs) were not employees of the club under Labor Law 511. Therefore the club was not obligated to make additional unemployment insurance contributions with respect to those performers:

Pursuant to Labor Law § 511 (1) (b) (1-a), the term employment includes “any service by a person for an employer . . . as a professional musician or a person otherwise engaged in the performing arts, and performing services as such for a . . . restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by [the Labor Law]” … . “The statute, which was designed to extend the availability of unemployment insurance and workers’ compensation benefits to those in the performing arts, creates a rebuttal presumption of employment” … — a presumption that may be rebutted by a written contract establishing that the performer in question is the employee of another covered employer … . …

… [T]he sole contested issue is whether a provision contained within the written agreements executed by the performers established that they were “employee[s] of another employer covered by [the Labor Law]” (Labor Law § 511 [1] [b] [1-a]). To that end, paragraph No. 8 of the performers’ contracts with Griffs provides, in relevant part, that Griffs “is not nor shall become [the performers’] employer, as other corporations employ them” … . Matter of Griffs Global Corp. (Commissioner of Labor), 2022 NY Slip Op 06670, Third Dept 11-23-22

Practice Point: Under Labor Law 511 the musicians, dancers and other performers who entertained at the New York City supper club were not employees of the club because their contracts stated they were employees of other corporations. Therefore, the club was not required to make unemployment insurance contributions on behalf of the performers.

 

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