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THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT).

The Third Department determined the record on appeal was insufficient and ordered a new hearing with a stenographer. The hearing was electronically recorded. Counsel ask a witness 80 questions but only four answers were audible. Matter of Jereline Z. v Joseph AA., 2022 NY Slip Op 02848, Third Dept 4-28-22

Practice Point: If a hearing is electronically recorded but most of a significant witness’s answers are inaudible, the appeal cannot be considered. Here a new hearing with a stenographer was ordered.

 

PETITIONER WAS CHARGED WITH MAKING A COMMENT TO A FELLOW EMPLOYEE AT A SOCIAL GATHERING, WAS FOUND GUILTY AND WAS TERMINATED; THE EMPLOYEE TESTIFIED THE REMARK WAS MADE AT THE WORKPLACE; THEREFORE PETITIONER WAS FOUND GUILTY OF CONDUCT THAT WAS NEVER CHARGED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the determination terminating petitioner’s employment with the state, found that petitioner’s due process rights were violated because he was found guilty of conduct that was never charged. Petitioner was charged with making a comment to a fellow employee at a social gathering. But the employee testified the remark was made at the workplace:

Pursuant to Civil Service Law § 75 (1), a civil service employee “shall not be removed or otherwise subjected to any disciplinary penalty . . . except for incompetency or misconduct shown after a hearing upon stated charges.” “The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence” … . “The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged” …  Fundamentally, the determination made in a disciplinary proceeding “must be based on the charges made” and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon … . Matter of Kiyonaga v New York State Justice Ctr. for the Protection of People with Special Needs, 2022 NY Slip Op 02850, Third Dept 4-28-22

Practice Point: Pursuant to the Civil Service Law, a state employee charged with official misconduct is entitled to due process, including notice of the charges. Here the petitioner was charged with making a comment to a fellow employee at a social gathering. The employee testified the remark was made in the workplace, conduct that was never charged. Petitioner was improperly found guilty of misconduct that was never charged and was terminated. The determination was annulled.

 

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THE CURRENT GOVERNOR AND LIEUTENANT GOVERNOR, AS WELL AS FORMER GOVERNOR CUOMO, ARE NECESSARY PARTIES IN THIS SUIT PURSUANT TO THE STATE FINANCE LAW CHALLENGING THE CONSTITUTIONALITY OF THE SALARY INCREASES FOR THOSE PARTIES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the action under the State Finance Law challenging the constitutionality of the salary increases for governor and lieutenant governor should have included the current Governor and Lieutenant Governor, as well as former Governor Cuomo, as necessary parties:

CPLR 1001 (a) provides that “[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” When such a person “has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned” … . This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected … .

… [T]he interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials … ;. We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant’s argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant’s request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b] …). Arrigo v DiNapoli, 2022 NY Slip Op 02845, Third Dept 4-28-22

Practice Point: Pursuant to CPLR 1001, parties within the jurisdiction of the court must be added as necessary parties if the ultimate ruling could have an adverse effect on them.

 

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THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:

… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22

Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.

 

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ALTHOUGH INFORMATION PROVIDED FOUR DAYS BEFORE TRIAL PURSUANT TO A DEFENSE SUBPOENA INCLUDED BRADY MATERIAL, THE MAJORITY CONCLUDED THE DEFENSE HAD A MEANINGFUL OPPORTUNITY TO USE THE INFORMATION TO CROSS-EXAMINE THE PEOPLE’S WITNESSES; THE DISSENTER DISAGREED (THIRD DEPT).

The Third Department, over a dissent, determined that the People’s failure to turn over Brady material in this sexual-offense prosecution, which the defense received four days before trial pursuant to a subpoena, did not require reversal:

“‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant’s constitutional right to a fair trial is not violated when, as here, he [or she] is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case” … .. Defendant, by way of a subpoena, received the records from the victim’s evaluation four days before trial. Defendant asserts that these records contain two pieces of allegedly exculpatory information. The first is that a physical examination of the victim, performed three months after the incident, was “normal” and did not reveal any corporeal injury. The second is that the victim, during an interview related to the physical examination, disclosed allegations of prior sexual abuse by two different individuals, which defendant asserts were fabricated.

From the dissent:

… [I]n my view, the withheld evidence was clearly material and defendant was prejudiced. As a result of the Brady violation, defendant was denied an opportunity to pursue other strategies with defense counsel. He was denied, among other things, the opportunity to investigate and interview other potential defense witnesses well in advance of trial, or to develop a more detailed argument on the issue of whether he could cross-examine the victim and call certain witnesses without running afoul of the Rape Shield Law (see CPL 60.42). With more time, he also could have called the examining physician or retained his own medical expert to review the records. Learning of the existence of potential witnesses such as the victim’s brother and the mother’s landlord a mere four days before trial provided defendant no opportunity to locate and interview these witnesses and possibly incorporate their testimony into his defense. Moreover, as County Court noted, defendant, under these circumstances, was under no obligation to seek an adjournment of the trial. People v Sherwood, 2022 NY Slip Op 02455, Third Dept 4-14-22

Practice Point: Although the Brady material was not provided until four days before trial pursuant to a defense subpoena, reversal was not required because the defense had a meaningful opportunity to use the material in the cross-examination of the People’s witnesses. The dissenter disagreed.

 

CLAIMANT DELIVERY DRIVER WAS NOT AN EMPLOYEE OF NEL, A BUSINESS LOGISTICS COMPANY WHICH ASSIGNED CLAIMANT TO DELIVER AUTO PARTS FOR ITS CLIENT, ANY-PART AUTO STORES (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant was not an employee of NEL, a business logistics company, and NEL was, therefore, not liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Claimant was a delivery driver who was assigned by NEL to deliver auto parts for Any-Part Auto Stores:

The record reflects that, after NEL initially referred claimant to Any-Part, NEL did not retain any supervisory authority over him. NEL did not provide any training, set delivery goals for claimant, conduct performance reviews or evaluations, require any proof of delivery or require any contact from claimant on a day-to-day basis. Any-Part assigned the deliveries to claimant and handled any complaints. Claimant used his own vehicle, NEL did not reimburse him for any expenses and claimant was not restricted from working for others. Under the parties’ written agreement, claimant could refuse an assignment, but, once he accepted an assignment, he was required to complete it. Per the agreement, claimant was permitted to hire other individuals to perform the work if claimant could not, and claimant was responsible for ensuring that those individuals comply with state and federal regulations, including licensing and insurance requirements. … . Matter of Pasini (Northeast Logistics, Inc.–Commissioner of Labor), 2022 NY Slip Op 02464, Third Dept 4-14-22

 

THERE WAS NO INDICATION ON THE FORM AND NO REGULATION REQUIRING CLAIMANT TO SUBMIT A SEPARATE RB-89 FORM FOR EACH CLAIM; THE BOARD THEREFORE ABUSED ITS DISCRETION WHEN IT REFUSED TO REVIEW THE WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION ON THAT GROUND (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined it was an abuse of discretion to deny claimant’s application on the ground that a separate copy of the RB-89 form was not submitted for each claim:

We note … that the requirement that a party submit a copy of the RB-89 form when referencing multiple claims, or that failing to provide a copy for each claim could result in review being denied on one of the claims, is not included on the form, in the instructions to the form or in the Board’s regulations. Although the Board may certainly adopt the formatting requirement that applicants provide a copy of their RB-89 form for each claim referenced therein, we find, under the circumstances presented here, that the Board’s denial of claimant’s application for review of the WCLJ’s decision on the 2017 claim for failing to provide the Board with an additional copy of their RB-89 form was an abuse of the Board’s discretion … . Matter of Olszewski v PAL Envtl. Safety Corp., 2022 NY Slip Op 02469, Third Dept 4-14-22

 

THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY OF “CREATING A DISTURBANCE” (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held the evidence did not demonstrate petitioner-inmate was guilty of “creating a disturbance:”

Pursuant to the relevant regulations, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility” (7 NYCRR 270.2 [B] [5] [iv]). Such disruptive conduct includes, as relevant here, “loud talking in a mess hall, program area or corridor” (7 NYCRR 270.0 [B] [5] [iv]). The misbehavior report, which was the sole evidence relied upon by the Hearing Officer, provided, in relevant part, that petitioner was observed “arguing” with another incarcerated individual “in the dorm hallway . . ., which drew the attention of the [incarcerated individuals] nearby.” The misbehavior report does not reflect that petitioner was screaming … or otherwise speaking in a loud or boisterous manner … , nor does it establish that petitioner’s behavior triggered an affirmative response on the part of the incarcerated individuals observing the alleged argument … . Similarly, petitioner was found not guilty of fighting, and there were no other established disciplinary infractions that would give rise to a reasonable inference that his conduct was disruptive … . In short, as the misbehavior report fails to identify the manner in which petitioner’s conduct disturbed the order of the facility, we cannot say that respondent’s determination is supported by substantial evidence … . Matter of Hogan v Thompson, 2022 NY Slip Op 02470, Third Dept 4-14-22

 

ALTHOUGH CLAIMANT WAS STRUCK BY A VEHICLE WHILE HE WAS RIDING HIS BICYCLE TO WORK (USUALLY NOT COMPENSABLE), HIS INJURY WAS FOUND COMPENSABLE BY THE WORKERS’ COMPENSATION LAW JUDGE (WCLJ) UNDER THE “SPECIAL ERRAND” EXCEPTION; BECAUSE THE WORKERS’ COMPENSATION BOARD DID NOT ADDRESS THAT ISSUE, THE MATTER WAS REMITTED (THIRD DEPT). ​

The Third Department, remitting the matter to the Workers’ Compensation Board, determined the Board did not address the basis of the Workers’ Compensation Law Judge’s (WCLJ’s) ruling that claimant was entitled to benefits. Claimant was struck by a vehicle while riding his bicycle to work. Although travel to work is usually not covered by Workers’ Compensation, the WCLJ found that “claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations.” That issue was not addressed by the Board:

In finding that the claim was compensable, the WCLJ found that claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations. The Board, however, did not address the exception relied upon by the WCLJ but, instead, found that the outside employee exception did not apply in concluding that the accident did not arise out of or in the course of claimant’s employment. Whether an exception to the general rule applies turns on the Board’s fact-intensive analysis of the particular circumstances of a given case … , and “[t]he courts are bound by the . . . Board’s findings of fact which, including the ultimate fact of arising out of and in the course [of employment], must stand unless erroneous in law and regardless of whether conflicting evidence is available” … . The fact that claimant was not an outside employee, as found by the Board, is not dispositive as to whether the special errand exception applies, which was the basis of the WCLJ’s finding that claimant was entitled to workers’ compensation benefits. As the Board has made no findings of fact with regard to whether the special errand exception applies, the matter must be remitted to the Board for further proceedings in regard to this particular issue…. . Matter of Waters v New York City Tr. Auth., 2022 NY Slip Op 02474, Third Dept 4-14-22

​Practice Point: Although injury while traveling to work is usually not covered by Workers’ Compensation, there are exceptions, including the “special errand” exception which was deemed to apply here by the Workers’ Compensation Law Judge.

 

BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT, HE WAS ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award because he was not eligible for a nonschedule award due to retirement:

A nonschedule award “is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant’s future wage-earning capacity” and is mathematically derived from a claimant’s average weekly wages and wage-earning capacity … . On the other hand, an SLU award is designed to compensate for a claimant’s “loss of earning power” as a result of anatomical or functional losses or impairments … and, as such, “‘is not allocable to any particular period of disability'” … and is “independent of the time an employee actually loses from work” … . That said, “[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award,” because SLU and nonschedule awards “are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation” … . “However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award” for the permanent impairments sustained in the same work-related accident … . …

… [T]here is no dispute that claimant is not entitled to a nonschedule award based upon his nonschedule classification because he voluntarily retired in April 2020 and was therefore not attached to the labor market at the time of classification … . Thus, as “no initial award [wa]s made based [up]on [claimant’s] nonschedule permanent partial disability classification” … , he “is entitled to an SLU award for the permanent partial impairments to [his] statutorily-enumerated body members” … . Finally, and contrary to the position taken by the Board, the fact that claimant voluntarily retired, and was therefore not attached to the labor market, does not preclude him from receiving an SLU award, because “it is axiomatic that a claimant’s lack of attachment to the labor market, voluntary or otherwise, is irrelevant to a determination as to entitlement to an SLU award” … . Matter of Gambardella v New York City Tr. Auth., 2022 NY Slip Op 02475, Third Dept 4-14-22

Practice Point: This Workers’ Compensation case includes a clear explanation of a “nonschedule award” versus a “schedule loss of use (SLU)” award.

 

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