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ALTHOUGH CLAIMANT DID NOT SUCCEED IN DEMONSTRATING HER CONDITION HAD WORSENED SUCH THAT SHE WAS ENTITLED TO INCREASED BENEFITS, HER COUNSEL’S FEES SHOULD NOT HAVE BEEN RESCINDED BY THE WORKERS’ COMPENSATION BOARD (THIRD DEPT). ​

he Third Department, reversing (modifying) the Workers’ Compensation Board, determined the rescission of the award of claimant’s counsel’s fee on the ground that the claim was unsuccessful was arbitrary and capricious. Claimant was unable to show her condition had worsened entitling her to increased benefits:

The initial application submitted by claimant’s counsel, which sets forth in detail the services rendered and the time spent in connection therewith, reflects that counsel represented claimant for a number of years, engaged in extensive correspondence with, among others, claimant, Petroski [claimant’s treating physician] and the carrier, reviewed various reports, attended hearings and successfully sought and obtained a reopening of this matter. Although counsel ultimately did not succeed in obtaining an increase in claimant’s loss of wage-earning capacity, the Board rescinded the fee award solely upon counsel’s unsuccessful efforts in this regard. Notwithstanding the Board’s broad discretion, this single-factor reasoning strikes us as arbitrary and capricious — particularly in view of the fact that claimant clearly received an economic benefit from counsel’s overall representation of her. Matter of Simmons v Glens Falls Hosp., 2022 NY Slip Op 00712, Third Dept 2-3-22

 

THE LENGTH OF THE SENTENCE WAS NOT PRONOUNCED; RESENTENCING IS REQUIRED (THIRD DEPT).

The Third Department, reversing County County, determined the failure to pronounce the length of sentence required resentencing:

“CPL 380.20 requires that courts must pronounce sentence in every case where a conviction is entered. When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . This statutory requirement is “unyielding” … . Here, although the term of imprisonment was recited — on the record and more than once — at the time of sentencing, County Court “did not pronounce the length of the term of [imprisonment] in open court” … . People v Belcher-Cumba, 2022 NY Slip Op 00691, Third Dept 2-3-22

 

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WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice:

… [W]hen the terms of the plea agreement were placed on the record, it was stated that the prison term to be imposed would be two years. County Court then, in discussing defendant’s second felony offender status, stated that the prison term was three years but, thereafter, informed defendant that, if he violated any jail rules prior to sentencing, it would not be bound by the promise of a two-year prison term. The record does not reflect that there was any clarification or correction regarding the misstatements as to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-year prison term was imposed. As “[t]he record thus fails to reveal that defendant was accurately advised of the essential terms and conditions of the plea agreement” … , we find that his plea was not knowing, voluntary and intelligent. People v Lumpkin, 2022 NY Slip Op 00477, Third Dept 1-27-22

 

PETITIONER POLICE OFFICER’S SITTING IN A DESK CHAIR (WHICH WAS SUBSEQUENTLY FOUND TO BE BROKEN), LEANING BACK, FALLING BACKWARD AND INJURING HIS HEAD CONSTITUTED AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, over a dissent, annulled the determination that petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law. Petitioner alleged he sat in a desk chair, leaned back and fell over striking his head. There was evidence the chair was broken:

Petitioner’s burden was to demonstrate that his disability arose out of an accident which, for purposes of the Retirement and Social Security Law, is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” … . * * *

In our view, the incident as described constitutes an accident. Contrary to the findings of the Hearing Officer, whether the chair was broken prior to or during the fall is of no moment, as either way petitioner was unaware of any defect. In either situation, the collapse of a chair back would be a sudden, unexpected outcome for anyone who simply sits and leans back. Matter of Crone v DiNapoli, 2022 NY Slip Op 00481, Third Dept 1-27-22

 

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THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT PRECLUDE THIS ACTION TO DETERMINE THE VALIDITY OF THE PURPORTED 2017 ELECTION OF THE BOARD OF DIRECTORS; THE PRIOR ACTION CONCERNED ONLY THE VALIDITY OF THE PURPORTED 2019 ELECTION OF THE BOARD OF DIRECTORS (THIRD DEPT).

The Third Department, reversing Supreme Court, held the doctrine of collateral estoppel did not preclude this Sullivan County action, which sought to determine whether a 2017 election of the board of dIrectors of plaintiff religious corporation was valid. A prior action in Kings County determined a 2019 election of the board of directors of the same corporation was a nullity:

As defendants’ amended petition and the order of Supreme Court … in the Kings County proceeding reflect, the issue to be determined therein was the validity of the 2019 election, not the validity of the 2017 election. Defendants sought in that proceeding to declare the 2019 election a nullity and, as a result, enjoin the individual plaintiffs, purportedly elected in 2019, from acting as the board of directors. Indeed, the court went out of its way during oral argument in that matter to so limit the issue when it stated that it “want[ed] to be very clear that [it was] making no determination in this case as to whether [defendants] have any right to control the corporation by virtue of any acts that predated the [June 2019 election.]” The court further clarified “that [it] take[s] no position on the validity of any actions that [defendants] claim[] to have taken in 2017 and thereafter,” and added that the allegations relating to the 2017 election was part of “[t]he Sullivan County matter” which “is not before [it],” and that the proceeding “has nothing to do with the Sullivan County matter.” More importantly, the order signed by the court was so circumscribed, and granted the amended petition “to the sole extent that it [sought] to invalidate” the 2019 election. Congregation Machne Ger v Berliner, 2022 NY Slip Op 00483, Third Dept 1-27-22

 

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DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a dissent, determined the judicial estoppel doctrine applied and plaintiff’s motion to dismiss the workers’ compensation affirmative defense in this personal injury action should have been granted. Plaintiff was injured on the job. In the Workers’ Compensation proceeding defendants argued plaintiff was an not an employee. In this action defendants argued he was an employee and his recovery is limited to Workers’ Compensation:

… [T]he record makes clear that defendants, through Old Republic [insurance company], consistently advanced in the Workers’ Compensation Law proceeding the theory that plaintiff was not its employee. Old Republic, as the workers’ compensation carrier for defendants, was subsequently discharged from this proceeding. As such, defendants achieved its desired result after asserting the lack of an employer-employee relationship. Although the record is not explicit as to the basis for the discharge of Old Republic from the Workers’ Compensation Law proceeding, “[t]he policy behind judicial estoppel would not be served by limiting its application to cases where the legal position at issue was ruled upon in the context of a judgment” … .

In this action … defendants have taken a contrary position — i.e., plaintiff was employed by defendants as a special employee and, therefore, his sole remedy for compensation was to pursue workers’ compensation benefits. Allowing defendants to argue in this action that plaintiff was their employee, after they had disavowed an employer-employee relationship in the Workers’ Compensation Law proceeding and received a benefit from this position, would subvert the equitable policy behind the doctrine of judicial estoppel … . Walker v GlaxoSmithKline, LLC, 2022 NY Slip Op 00484, Third Dept 1-27-22

 

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THE EVIDENCE SUPPORTED THE DEFENSE VERDICT IN THIS ALL-TERRAIN VEHICLE ACCIDENT CASE; TWO DISSENTERS ARGUED THE 14-YEAR-OLD DEFENDANT DRIVER ACKNOWLEDGED HIS NEGLIGENCE ON THE STAND (THIRD DEPT).

The Third Department, over a partial dissent, determined the jury verdict finding the 14-year-old defendant driver of an all-terrain vehicle (a Gator) was not negligent was supported by the evidence. The Gator overturned and the 16-year-old passenger was injured. The defendant’s and plaintiff’s descriptions of the accident conflicted. The dissenters argued the defendant acknowledged he was negligent when he testified:

The jury heard … conflicting testimony regarding how defendant was driving at the time of the accident, whether that driving was what led to the Gator tipping over and whether defendant had any reason to believe that his actions posed a risk of harm given the acknowledged stability of the Gator and the fact that he and plaintiff had already performed several donuts without incident. It was for the jury to resolve these factual questions and determine whether defendant “fail[ed] to use that degree of care that a reasonably prudent person would have used under the same circumstances” and engaged in conduct posing a reasonably foreseeable risk to others … . ….

From the dissent:

… [D]efendant testified that he was 14 years old on the day of the accident, that he was operating the John Deere Gator Utility Vehicle (hereinafter Gator) and performing a “donut” at the time of the accident. He described a donut as “the action of turning the wheel of the vehicle while pressing the accelerator in order to get the back wheels to spin out.” He stated that he knew that the Gator was not intended as a recreational vehicle and also testified that, although he was aware of the manufacturer’s safety warnings pertaining to limitations on speed, the use of seat belts and the prohibition of anyone younger than 16 years old driving the vehicle, he disregarded many of those warnings at the time of the accident. Finally, he testified that, although he had always operated the Gator safely in the past, his parents were angry with him after this accident “because [he] was driving [the Gator] in a manner that was inconsistent with [his] entire past.” When asked if this manner was unsafe, defendant simply stated “yes.” Wright v O’Leary, 2022 NY Slip Op 00485, Third Dept 1-27-22

 

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PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AS THEY SOUGHT TO VACATE A CONSTRUCTION CONTRACT; THE CONSTRUCTION PROGRESSED TO THE POINT WHERE THE COURT MUST DISMISS THE APPEAL AS MOOT (THIRD DEPT).

The Third Department determined the petitioners’ appeal of the denial of a declaratory judgment seeking to vacate the award of a construction contract by the Office of State Comptroller (OSC) must be dismissed as moot. The petitioners did not seek to maintain the status quo by injunction and the work had progressed too far:

… [T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Where a change in circumstances involves the substantial completion of construction, “courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness … . Matter of Bothar Constr., LLC v Dominguez, 2022 NY Slip Op 00346, Third Dept 1-20-22

 

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SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). ​

The Third Department determined defendant SUNY Albany’s motion for summary judgment in this inadequate-security case was properly denied. Claimant was assaulted in her dorm room by a person who was not authorized to be in the dormitory. The Court of Claims held the school was not protected by government immunity because building security was a proprietary function (akin to a landlord’s duty), as opposed to a governmental function, and therefore government immunity did not apply. There was evidence the lock on the dormitory door was not adequate and the sexual assault by an intruder was foreseeable:

As the Court of Appeals has recognized, “[a] governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions” and “any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the [governmental entity’s] alleged negligent action falls into, either a proprietary or governmental capacity” (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In Miller, a student at a state university was raped by an intruder in the laundry room in her dormitory. The Court of Appeals permitted the claim of negligence — stemming from the defendant’s failure to lock the entrance doors to the dormitory — to go forward in the defendant’s proprietary capacity as a landlord. As in Miller, claimant’s allegations that defendants failed to, among other things, install proper security devices, including locks, clearly implicate defendants’ proprietary function as a landlord, and the Court of Claims therefore correctly rejected defendants’ claim of governmental immunity. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Criminal conduct is foreseeable if it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . P.R.B. v State of New York, 2022 NY Slip Op 00348, Third Dept 1-20-22

 

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THE NUMBER OF FIREFIGHTERS WHICH MUST BE ON DUTY DURING A SHIFT IS A HEALTH AND SAFETY ISSUE, WHICH IS ARBITRABLE PURSUANT TO THE COLLECTIVE BARGANING AGREEMENT, NOT A JOB SECURITY ISSUE (WHICH IS NOT ARBITRABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the number of firefighters which must be on duty during a shift is not a job-security issue and is therefore arbitrable pursuant to the collective bargaining agreement (CBA):

Respondent contends that Supreme Court erred in concluding that its grievance concerned nonarbitrable job security clauses as the clauses relate only to minimum shift staffing requirements and do not guarantee employment to bargaining unit members during the life of the CBA, a hallmark of a no-layoff job security clause. Respondent further asserts that minimum staffing requirements set forth in … the CBA pertain to health and safety concerns and are properly the subject of arbitration.

… [T]he CBA “does not purport to guarantee a[n] [officer] his or her employment while the CBA is in effect, nor does it prohibit layoffs” … . “It also does not protect officers ‘from abolition of their positions due to budget stringencies'” … . … [T]he CBA only sets forth “minimum staffing on particular shifts” … . Matter of City of Ogdensburg (Ogdensburg Firefighters Assn. Local 1799, A.F.L., C.I.O., I.A.F.F), 2022 NY Slip Op 00237, Third Dept 1-13-22

 

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