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HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the judgment and ordering a new trial, determined expert evidence and lay-witness testimony should not have been excluded from this negligent-supervision-of-a-student trial. The student had some physical disabilities and a “504 plan” had been developed for her pursuant to the Americans with Disabilities Act (ADA). The plan did not explicitly call for extra supervision. The student was injured when she was practicing jumps in gym class while the teacher was working with other students. The school district successfully argued to the judge that any evidence that the “504 plan” was inadequate to protect the student amounted to discrimination because the plan did not call for extra supervision. That argument was rejected by the Third Department:

… [A] school district’s written 504 plan does not operate as a supervision ceiling in all respects and circumstances.The central purpose of Section 504 is to assure that students with disabilities receive equal treatment in relation to their peers … , that is, that they receive support, based on their individual needs, so that they may also meaningfully access a given educational experience … . This stands in stark contrast to defendant’s reliance upon federal antidiscrimination law as a shield from liability. Plainly put, if two kindergarteners have difficulty performing a skill in a mainstream physical education class, adequate support should be provided to both of them — not, illogically, only the one who does not have a 504 plan. Yet that is precisely what defendant’s argument devolves to. Jaquin v Canastota Cent. Sch. Dist., 2023 NY Slip Op 01039, Third Dept 2-23-23

Practice Point: Here the injured student had certain disabilities and the school district put in place a 504 Plan pursuant to the Americans with Disabilities Act to accommodate for her disabilities. The plan did not call for extra supervision. The student was injured while unsupervised in gym class. The school district successfully argued evidence that more supervision was needed conflicted with the 504 plan. The argument was rejected and a new trial ordered.

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).

The Third Department, reversing Family Court, determined the record did not support a finding that father (respondent) neglected the child based on mother’s drug use when she was pregnant:

Respondent argues that Family Court erred when it found that, knowing that the mother was abusing drugs while pregnant with the daughter, respondent failed to exercise a minimum degree of care when he failed to report the mother’s drug use to her probation officer In its decision, Family Court found that respondent made “some efforts to intervene as to the mother’s drug use,” by enrolling her in an inpatient drug treatment facility, attending drug treatment sessions and drug court proceedings with the mother and preventing her from residing with the son and limiting her contact with him. Indeed, the court stated that respondent had “failed to do the one thing that would have ensured that [the mother did] not have access to drugs while pregnant, reporting her to her probation officer,” and it found that this single failure constituted neglect. Under the circumstances of this case, we disagree.

Respondent testified that … he … learned that the mother had a warrant for her arrest due to her issues with probation. … [H]e and the mother agreed that the mother would engage in an inpatient treatment program to address her addiction and that she would then turn herself in to probation. … [F]our days after entering inpatient treatment, the mother signed herself out and absconded. … [P]etitioner failed to prove by a preponderance of the evidence that respondent failed to exercise a minimum degree of care required of a reasonable and prudent parent … . While respondent could have contacted the mother’s probation officer and reported her drug use, a warrant for the mother’s arrest was already in place, and respondent seemingly lacked any information to assist probation in locating her. Matter of Leo RR. (Joshua RR.), 2023 NY Slip Op 01041, second Dept 2-23-23

Practice Point: Father made efforts to intervene re: mother’s drug use during pregnancy. The record did not support a finding that father neglected the child because he did not report mother’s drug use to her probation officer.

 

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE MURDER FIRST DEGREE CONVICTION (THIRD DEPT).

The Third Department, affirming defendant’s convictions in this arson-murder case, noted that the two murder second degree counts were conclusory concurrent counts of the murder first degree count and must be dismissed:

… [T]he judgment must be modified, as the two counts of murder in the second degree upon which defendant was convicted are inclusory concurrent counts of the count of murder in the first degree, upon which he was also convicted (see CPL 300.40 [3] [b]). We therefore reverse his convictions for murder in the second degree and dismiss the corresponding counts in the indictment … . People v Truitt, 2023 NY Slip Op 01028, Third Dept 2-23-23

Practice Point: Here the murder second degree counts were dismissed as inclusory concurrent counts of murder first degree.

 

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​ THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender, determined the proof of the Massachusetts conviction which was the basis for the second felony offender status was deficient:

… [T]he People offered a copy of a “warrant” transferring defendant from local custody to state prison, as well as a copy of defendant’s public docket report. Both documents reflect defendant’s conviction in Massachusetts of armed robbery, bear the seal of the Massachusetts Superior Court and contain the signature of a court official attesting that such documents are true copies. However, the People’s submissions “lacked the certificate, under seal, showing that the attestor was the legal custodian of the records and that this signature was genuine as required by CPLR 4540 [c]” …  As a result of such failure, we vacate defendant’s adjudication as a second felony offender, as well as the resulting sentence, and remit this matter to County Court for a new second felony offender hearing, at which time the People will have an opportunity to overcome the technical deficiencies in their proof … . People v Caraballo, 2023 NY Slip Op 01029, Third Dept 2-23-23

Practice Point: To prove a foreign conviction the relevant document must be certified in accordance with CPLR 4540 (c).

 

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DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner could appeal the 2006 level three sex offender risk level classification, despite his failure to appear at the hearing, because he was not given 20-days notice prior to the hearing:

Although the hearing took place on June 25, 2003, defendant was only advised of it in a letter dated June 11, 2003.Accordingly, defendant’s due process rights were violated given that he was not afforded the minimum 20-day notice as required by statute … . The People respond that defendant explained in a letter sent after the June 2003 hearing that he chose not to attend that hearing because he did not think he would be classified at risk level three. This letter, however, postdated the hearing and any explanation made therein does not amount to a waiver of the right to appear at the hearing. Furthermore, defendant’s posthearing explanation does not obviate the notice requirements that defendant must be statutorily given prior to the hearing. People v Lockrow, 2023 NY Slip Op 01030, Third Dept 2-23-23

Practice Point: Here defendant was not given the required 20-day notice of the upcoming SORA risk level hearing, which violated his due process rights. He therefore could appeal the upward departure to level three.

 

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COVID STIMULUS PAYMENTS WERE ADVANCE TAX REFUNDS MEASURED BY THE NUMBER OF CHILDREN, NOT PAYMENTS FOR THE BENEFIT OF THE CHILDREN; THEREFORE THE PAYMENTS WERE SUBJECT TO EQUITABLE DISTRIBUTION IN THIS DIVORCE PROCEEDING AND SHOULD NOT HAVE BEEN AWARDED TO MOTHER AS CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the COVID stimulus payments were advance tax refunds constituting marital property subject to equitable distribution in this divorce/family offense proceeding. Family Court had ordered father to turn over the stimulus payments to mother as temporary child support:

… [F]ather argues that the federal stimulus payments are subject to equitable distribution and, therefore, Family Court did not have jurisdiction to direct him to remit them to the mother. We agree. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . In response to the global pandemic, Congress enacted several economic stimulus payments which created advance refunds of tax credits. As relevant here, the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) … provided eligible individuals an “advance refund amount” of the applicable tax credit of $500 for each qualifying child … . Thereafter, eligible individuals were entitled to an additional “advance refund” of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020 … .

… [T]hese federal stimulus payments were not paid “for the benefit of the minor children,” but they were the parties’ advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and which was partially measured by the number of children the tax filers had listed as dependents … . Generally, a tax refund is marital property and subject to equitable distribution by Supreme Court … . Although, within the context of a family offense petition, Family Court may issue an order for temporary child support (see Family Ct Act § 828 [4]), and there could be appropriate circumstances where a party’s tax refund may be seized to satisfy child support obligations … , those circumstances are not present here. Matter of Josefina O. v Francisco P., 2023 NY Slip Op 01031, Third Dept 2-23-23

Practice Point: COVID stimulus payments were advance tax refunds subject to equitable distribution in a divorce proceeding which should not have been awarded to mother as child support.

 

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.

 

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