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THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined (1) the built-in water heater plaintiff was attempting to shut off was a “structure” within the meaning of Labor Law 240(1); (2) plaintiff (Eherts) was engaged in repair, a covered activity, not routine maintenance; and (3) the Labor Law 200 cause of action should not have been dismissed. The plaintiff determined it was important to turn off the water heater to prevent damage because of a suspected water main break. To access the built-in water heater it was necessary to step on suspended shelves. The shelf plaintiff stepped on gave way and he fell:

The situation here is not one of a stand-alone hot water heater accessible at floor level. To the contrary, the record shows that the hot water heater is situated above one of the store’s refrigerated units. The heater does not directly rest on top of the freezer, but on a platform suspended a few inches above the freezer by cables attached to the ceiling. The heater has a gas turnoff adjacent to it and an electric breaker switch on the actual heater. There is a shelf that runs along the top of the freezer unit that protrudes out about three feet from the freezer, approximately 12 feet above the floor surface. To access the heater, it was necessary to place a ladder against the shelf, and step over the shelf to reach the heater platform. In our view, this configuration constitutes a structure within the embrace of Labor Law § 240 (1)  … . …

The events here did not occur during a routine scheduled maintenance call. Instead, on New Year’s Day, Eherts was responding to an isolated and unexpected event, i.e., to address a low/no water pressure issue at the store caused by a municipal water main break. His direct response was to take preventative measures to, among other things, avoid damage to the hot water heater by shutting the system off. Eherts v Shoprite Supermarkets, Inc., 2021 NY Slip Op 06587, Third Dept 11-24-21

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY IN THIS FOIL PROCEEDING; RESPONDENT HAD AGREED TO ALLOW PETITIONER TO VIEW THE ELECTRONIC FILES USING ITS VIEWING PROGRAM, BUT HAD DENIED, FOR NO GOOD REASON, PETITIONER’S REQUEST TO TRANSFER THE FILES TO A FLASH DRIVE (THIRD DEPT).

The Third Department determined petitioner was entitled to attorney’s fees because petitioner substantially prevailed on certain requests for documents after commencing an Article 78 proceeding. With respect to one of the requests, although respondent had agreed to allow petitioner to view the requested electronic files using respondent’s viewing program, respondent, without good reason, denied petitioner’s request to place the files on a flash drive:

We agree with petitioner that Supreme Court erred in denying its request for counsel fees. As relevant here, a court in a FOIL proceeding “shall assess, against such agency involved, reasonable [counsel] fees and other litigation costs . . . in any case . . . in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access” to the records sought … . “‘A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation'” … .

Petitioner substantially prevailed in the litigation. Through use of the judicial process, petitioner received documents responsive to demand Nos. 2-5 in the medium it desired and obtained a certification under demand Nos. 6-8 pertaining to multifamily homes … . Contrary to Supreme Court’s finding, the fact that the disclosure under demand Nos. 2-5 stemmed from a mutual accord between the parties does not change the analysis, as “the voluntariness of an agency’s disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed” … . Moreover, respondent did not have a reasonable basis for the precommencement denial of the records responsive to demand Nos. 2-5, as evidenced by its subsequent production of said documents in electronic form. Matter of Aron Law PLLC v Town of Fallsburg, 2021 NY Slip Op 06593, Third Dept 11-24-21

 

THE WIFE’S TEMPORARY MAINTENANCE ARREARS SHOULD HAVE BEEN CALCULATED FROM THE DATE OF THE WIFE’S APPLICATION FOR MAINTENANCE, NOT THE PRIOR DATE WHEN SHE BECAME UNEMPLOYED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the temporary maintenance awarded the wife should have commenced on the date of her application for temporary maintenance, not the prior date when she became unemployed:

We … agree with the husband that Supreme Court erred in ordering him to pay arrears retroactive to the wife’s date of unemployment, rather than the date of her application for temporary maintenance. The submissions demonstrated that the wife lost her job and the court made temporary maintenance retroactive to that date, November 26, 2019, yet the wife did not file her motion seeking temporary maintenance until April 2020. As applications for pendente lite relief are to be calculated from the date of the application …, the court’s calculation of arrears from the date of the wife’s unemployment was error. Carter v Fairchild-Carter, 2021 NY Slip Op 06594, Third Dept 11-24-21

 

CLAIMANT’S REQUEST FOR RECLASSIFICATION BASED UPON A CHANGE IN CONDITION FILED AFTER THE EXPIRATION OF CLAIMANT’S CAPPED INDEMNITY BENEFITS WAS NOT UNTIMELY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant’s request for reclassification based upon a change in condition was not untimely:

“The Board’s unilateral position that a permanently partially disabled claimant must seek reclassification prior to the exhaustion of his or her permanent partial disability award runs in direct contravention to the plain language of Workers’ Compensation Law § 15 (6-a), which provides that, subject to limitations not relevant here, ‘the [B]oard may, at any time, without regard to the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a change in condition'” … . Thus, the Board improperly refused to consider the three C-27 forms that were submitted by claimant’s physicians because they were filed shortly after the expiration of claimant’s capped indemnity benefits. Accordingly, claimant must be provided with an opportunity to seek reclassification based upon each and every one of the C-27 forms that were submitted by his physicians, irrespective of whether they were filed after the expiration of his indemnity benefits, as well as any additional, current medical evidence and/or testimony in support of his request for reclassification … . “If, after further development of the record, claimant is reclassified, there would at that time be no bar to him receiving, for example, retroactive permanent total disability benefits from the date when he was found to have been totally disabled” … .  Matter of Phillips v Milbrook Distrib. Servs., 2021 NY Slip Op 06402, Third Dept 11-18-21

 

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THERE WAS NO PROOF IN THE RECORD SUPPORTING THE FINDING THAT THE MISSOURI CONVICTION WAS THE EQUIVALENT OF A NEW YORK FELONY; THEREFORE THE RISK-LEVEL ASSESSMENT WAS REDUCED BY 10 POINTS (THIRD DEPT).

The Third Department, reversing County Court and remitting the matter, determined there was no proof in the record to support the finding that a Missouri conviction was the equivalent of a New York felony. The 15 points assessed for the foreign conviction was reduced to 5 points:

The Missouri statute under which defendant was convicted requires that a person “knowingly possesses a controlled substance” (Mo Ann Stat § 579.015 [1] … ), with no minimum drug quantity required … . Although criminal possession of a controlled substance is, most often, a felony in New York (see Penal Law §§ 220.21, 220.18, 220.16, 220.09, 220.06), the felony provisions all contain a weight element or require an intent to sell or a predicate conviction, whereas possession of a quantity of a controlled substance below the felony threshold constitutes a class A misdemeanor (see Penal Law § 220.03). Here, the facts and conduct underlying the Missouri conviction of criminal possession of a controlled substance are not in the record and, thus, it is unclear if the conduct underlying that conviction would constitute a felony in New York … . Accordingly, we are constrained to conclude that the record only supports the assessment of 5 points, not 15 points, under risk factor 9. Deducting 10 points from the total score of 110 results in a score of 100, placing defendant in the classification of a presumptive risk level two sex offender. However, the People expressly argued that, if defendant were found to be a risk level two sex offender, an upward departure would be warranted. In light of our holding that defendant is a presumptive risk level two sex offender, the matter must be remitted for County Court to consider whether an upward departure is warranted … . People v Smith, 2021 NY Slip Op 06403, Third Dept 11-18-21

 

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CLAIMANT’S UNEMPLOYMENT INSURANCE BENEFITS PROPERLY REDUCED TO ZERO BECAUSE CLAIMANT’S PENSION EXCEEDED THE AMOUNT OF THE BENEFITS (THIRD DEPT).

The Third Department determined the amount of unemployment insurance benefits for claimant, a professional violinist, was properly reduced to zero based upon claimant’s pension:

Consistent with the provisions of Labor Law § 600 (1) (a), the benefit rate of a claimant who is receiving a governmental or other pension “shall be reduced . . . if such [pension] payment is made under a plan maintained or contributed to by [the] base period employer and . . . the claimant’s employment with, or remuneration from, such employer after the beginning of the base period . . . increased the amount of . . . such pension” … . “Under the plain language of the statute, the specified reduction shall be made where a claimant’s base period employer made a pension fund contribution during the base period which increased the claimant’s pension” … .

… [T]he record establishes that, during the relevant base period, claimant received a pension benefit that, in turn, was fully funded by the contributing employers. The record further makes clear — and claimant does not dispute — that the work performed by her during the base period and the corresponding contributions made by her employers increased the monetary value of her pension. Under these circumstances, and given that the prorated weekly amount of claimant’s pension benefit exceeded her weekly unemployment insurance benefit (see Labor Law § 600 [1] [b]), the statutory reduction was triggered, and claimant’s unemployment insurance benefit rate was properly reduced to zero … . Matter of Morganstern (Commissioner of Labor), 2021 NY Slip Op 06416, Third Dept 11-18-21

 

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CLAIMANT, A MEMBER OF THE CITY BOARD OF ASSESSMENT AND REVIEW (BAR) HIRED TO REVIEW THE FAIRNESS OF PROPERTY TAX ASSESSMENTS, WAS NOT AN EMPLOYEE OF THE CITY AND THEREFORE WAS NOT ELIBIBLE FOR UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a City Board of Assessment and Review (BAR) member, was not an employee of the city and therefore was not entitled to unemployment insurance benefits. BAR members determine the fairness of property tax assessments:

… [C]laimant acknowledged … that neither the City Assessor nor any other City entity has control over BAR’s review and determination of grievances or the means by which such determinations are reached (see RPTL 523, 525, 526). Rather, the City Assessor merely provides BAR with the necessary property information, and once BAR reaches its determination, the role of the City Assessor is limited to adjusting the tentative assessment roll — as necessary — before the assessment roll is finalized (see RPTL 526 [5]). Notably, although the City Assessor could return a determination to BAR to correct “technical” errors, the City Assessor could not alter or modify the determination reached by BAR (see RPTL 526 [5]). Finally, the record reflects that the City Assessor could neither sanction nor terminate a member of BAR.

Based upon the foregoing, the Board’s finding of an employment relationship is not supported by substantial evidence. Matter of McLaughlin (City of Albany–Commissioner of Labor), 2021 NY Slip Op 06119, Third Dept 11-10-21

 

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NOTING THE SPLIT OF AUTHORITY BETWEEN THE 2ND AND 4TH DEPARTMENTS, THE 3RD DEPARTMENT SIDED WITH THE 2ND AND HELD THAT, WHERE THE PROPERTY OWNER IS DECEASED, JURISDICTION OVER THE PERSONAL REPRESENTATIVE OF THE DECEDENT IS REQUIRED FOR AN IN REM TAX FORECLOSURE PROCEEDING (THIRD DEPT).

The Third Department, in a complex tax foreclosure case involving many other parties and many other issues, in a full-fledged opinion by Justice Lynch, over a dissent, determined the city could not proceed against property owned by a deceased party without jurisdiction over the personal representative of the decedent’s estate. The court noted a split of authority between the Second and Fourth Departments. The Fourth Department held that a tax foreclosure is an in rem proceeding (against the property) and the death of the owner is therefore irrelevant. The Third Department sided with the contrary ruling by the Second Department(requiring jurisdiction over the personal representative). The two-justice dissent argued the Fourth Department’s approach is the correct one:

Supreme Court properly granted Paul’s motion to vacate the default judgment. Paul is the adult son of Paywantie Allicock (hereinafter decedent), who purchased the property at 82 James Street in the City of Schenectady, Schenectady County (hereinafter the property) in 2004 and resided there with her son until she passed away in May 2015. Paul continues to reside at the premises. At issue is whether petitioner duly acquired jurisdiction over the property for purposes of this RPTL article 11 in rem foreclosure proceeding, commenced in April 2019. Pertinent here, there is a split between the Second and Fourth Departments as to whether a tax foreclosure proceeding may include a parcel where the owner is deceased at the time the action is commenced (compare Matter of Foreclosure of Tax Liens, 165 AD3d at 1116, with Hetelekides v County of Ontario, 193 AD3d 1414, 1419-1420 [2021]). We ascribe to the viewpoint expressed by the Second Department that such a proceeding may not be commenced until such time as the petitioner first acquires jurisdiction over the personal representative of the decedent’s estate … . Matter of City of Schenectady, 2021 NY Slip Op 06120, Third Dept 11-10-21

 

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THE PLEA AGREEMENT COULD NOT BE FULFILLED BECAUSE THE DEFENDANT WAS NOT ELIGIBLE FOR THE PROMISED SHOCK INCARCERATION PROGRAM; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED BY A MOTION, THE MATTER WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was invalid because the plea agreement could not be fulfilled. Defendant was promised participation in the shock incarceration program, but a prior violent felony conviction rendered him ineligible. The court noted that the argument the plea was not voluntary (because the promise could not be fulfilled) was not preserved for appeal by a postallocution motion. The appeal was considered in the interest of justice:

There is no dispute that, in light of defendant’s prior violent felony conviction, he was not in fact eligible for participation in a shock incarceration program … . Nor is there any question that a judicial mandate for shock incarceration was part and parcel of defendant’s plea agreement … . “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . As the promise made here cannot be honored, and given defendant’s insistence that his plea was involuntary, we deem vacatur of the plea and remittal to County Court for further proceedings to be the appropriate remedy  … . People v Regan, 2021 NY Slip Op 06007, Third Dept 11-4-21

 

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DEFENSE COUNSEL SUBMITTED EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL BUT COUNTY COURT DID NOT RULE ON IT; MATTER REMITTED FOR FINDINGS OF FACT AND CONCLUSIONS (THIRD DEPT).

The Third Department, remitting the matter, noted that defense counsel submitted evidence in support of a downward departure from the presumptive risk level but County Court made no findings on the request:

The record reflects that defendant’s counsel submitted various evidence, including a letter from a social worker who apparently was treating defendant and information regarding, among other things, defendant’s consistent compliance with probation, in support of the request for a downward departure. As County Court did not set forth on the record any findings or conclusions on that request, we are unable to assess the court’s reasoning. As such, we reverse and remit the matter for County Court to determine whether a departure from the presumptive risk level indicated by defendant’s point total is warranted and to set forth its requisite findings of fact and conclusions … . People v Hoffman, 2021 NY Slip Op 06013, Third Dept 11-4-21

 

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