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THE RECORD DOES NOT DEMONSTRATE THE HEARING OFFICER MADE REASONABLE EFFORTS TO SECURE THE TESTIMONY OF AN EYEWITNESS TO THE FIGHT WHICH RESULTED IN THE MISBEHAVIOR REPORT CHARGING THE PETITIONER; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the determination and ordering a new hearing, determined the hearing officer did not make reasonable efforts to have a witness to the fight, Johnson, testify at petitioner’s misbehavior hearing. Petitioner requested the witness’s testimony as part of his defense:

The record reflects that, although Johnson agreed to testify at the hearing, the Hearing Officer denied Johnson as a witness stating, without any elaboration, that Johnson was unavailable. Although the Hearing Officer indicated that he made four attempts to procure Johnson as a witness, the record does not indicate, other than on that particular day and time, when those attempts were made by the Hearing Officer or the nature thereof. Furthermore, the Hearing Officer did not complete a witness denial form setting forth any further detail regarding his attempts to contact Johnson or the reasons for Johnson’s unavailability. Under these circumstances, we find that the record does not sufficiently reflect whether reasonable and diligent efforts were made by the Hearing Officer to secure Johnson as a witness … . Because the Hearing Officer articulated a good-faith reason for denying the witness, we find that petitioner’s regulatory right to call a witness was violated and, therefore, remit the matter for a new hearing … . Matter of Douglas v Annucci, 2021 NY Slip Op 06020, Third Dept 11-4-21

 

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THE WORKERS’ COMPENSATION BOARD ABUSED ITS DISCRETION BY IGNORING UNCONTRADICTED EVIDENCE OF THE EXTENT OF CLAIMANT’S IMPAIRMENT (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the uncontested evidence demonstrated claimant’s shoulder was 35% impaired, not 15% impaired as found by the Board:

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board’s discretion and our review of that decision is limited to whether there was an abuse of that discretion … . Upon our review of the Board’s decision, we find that such discretion was abused here. Although the C-4.3 form notes that claimant’s left shoulder is 15% impaired, it directs that the orthopedic surgeon’s findings are set forth in the attached medical narrative. The substance of the attached medical narrative clearly sets forth in detail that claimant sustained a 35% SLU of the left shoulder — attributing 15% to full thickness rotator cuff tear, 10% distal clavicle excision and 10% mild loss of internal and external rotation. The carrier, who received the medical narrative along with the C-4.3 form, specifically accepted the medical opinion without objection. “Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered” … . Matter of Taylor v Buffalo Psychiatric Ctr., 2021 NY Slip Op 06021, Third Dept 11-4-21

 

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ALTHOUGH DEEMED HARMLESS, IT WAS ERROR TO HAVE THE DEFENDANT SHACKLED DURING A PORTION OF THE TRIAL (THIRD DEPT).

The Third Department determined defendant should not have been shackled during the trial, but deemed the error harmless:

Defendant … contends that County Court erred in allowing him to be shackled during a portion of the trial. It is well settled that “a defendant has a right to be free of visible restraints during criminal proceedings unless the trial court states a case-specific reason for their use” … . The use of shackles has been deemed appropriate “for reasons of security, to prevent disruption of the trial, harm to those in the courtroom, escape or release of the accused, or the commission of other crimes” … . The record discloses that, in making its determination, County Court considered the nature of the crime with which defendant was charged, deferred to the correction officers’ recommendations and referenced defendant’s verbal outbursts throughout the morning. These are insufficient reasons to restrain defendant … .

… [W]e are satisfied that this error was harmless as the evidence demonstrated that defendant’s guilt was overwhelming and there was no reasonable possibility that the error affected the outcome of the trial. We are even more confidant of this conclusion in light of the fact that County Court gave curative instructions to the jury on numerous occasions — including during jury selection, at the commencement of the trial and during final jury instructions — and especially considering that the jury was aware that defendant was already incarcerated … . People v Banch, 2021 NY Slip Op 05894, Third Dept 10-28-21

 

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IN APPROVING A WIND TURBINE INSTALLATION THE STATE BOARD ON ELECTRIC GENERATION AND SITING AND THE ENVIRONMENT PROPERLY REFUSED TO CONSIDER LOCAL LAWS ENACTED BY THE TOWN AFTER THE EVIDENTIARY HEARING WAS CLOSED; THE LOCAL LAWS SOUGHT TO IMPOSE A MORATORIUM ON THE PROJECT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the State Board on Electric Generation Siting and the Environment (siting board) had properly approved the Bluestone Wind Farm Project. The siting board properly ignored local laws enacted by the town after the evidentiary hearing was closed which attempted to impose a moratorium on the project to allow further study:

The legislative history and intent fully support this decision. In enacting the predecessor to Public Service Law article 10, the Legislature acted with the express purpose of providing “‘for the expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and local agencies, including all matters of state and local law, in a single proceeding'” … . In its current iteration, article 10 “was enacted in 1992 to provide ‘a comprehensive framework for developing and implementing sound energy policy for the [s]tate that integrates energy planning with consideration of environmental quality and [to provide] a one-stop process for the siting of major electric generating facilities'” … . “One goal of the legislation was to permit comprehensive review of the benefits and impacts anticipated from proposed facilities without unreasonable delay [and,] . . . [i]ndeed, the expeditious resolution of siting applications is a goal noted throughout documents submitted in support of the legislation” … .

This goal was manifested in the 12-month deadline imposed on the Siting Board to issue a final determination on each application before it … . … Public Service Law article 10 requires the inclusion of all substantive local laws in the record by way of a specific exhibit to be incorporated into each application … . Any disputes as to whether a proposed facility complies with a local substantive law are thus intended to be resolved by way of evidence presented during the hearing to the Hearing Examiners, and the statute explicitly places the burden on the municipality to present evidence in support of enforcement of the local law in question … . “Thus, the history and scope of article [10], as well as its comprehensive regulatory scheme, . . . would be frustrated by” last minute laws such as Local Law No. 4 … . Matter of Broome County Concerned Residents v New York State Bd. on Elec. Generation Siting & the Envt., 2021 NY Slip Op 05903, Third Dept 10-28-21

 

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IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody to allow her to relocate to New Jersey should not have been dismissed without a hearing:

“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , an evidentiary hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The change in circumstances alleged by the mother in her petition included, among other things, the child’s “strong desire to relocate” with the mother to New Jersey and a recent breakdown in the child’s relationship with the father. In concluding that these allegations were facially insufficient, Family Court failed to accept the mother’s allegations as true, afford her the benefit of every favorable inference and resolve credibility issues in her favor. Matter of Sarah OO. v Charles OO., 2021 NY Slip Op 05758, Third Dept 10-21-21

 

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FAMILY COURT DOES NOT HAVE THE AUTHORITY TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO COMMENCE A NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court does not have the authority to direct the Department of Social Services (DSS) to commence a neglect proceeding:

Neither DSS nor the attorney for the child disputes the ability of DSS to commence a neglect proceeding without leave of a court. They also do not dispute that Family Court, under Family Ct Act § 1034, may order DSS to conduct a child protective investigation and report its findings to the court. What is disputed is whether Family Court may order a child protective agency, such as DSS, to commence a neglect proceeding against a parent. …

“Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032 [a], [b]). In view of the express terms of the statute, Family Court has the authority to direct the commencement of a Family Ct Act article 10 proceeding. That authority, however, is limited to directing only a “person” to do so … — which DSS is not. Matter of Donald QQ. v Stephanie RR., 2021 NY Slip Op 05760, Third Dept 10-21-21

 

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PLAINTIFF, A LANDSCAPING CONTRACTOR, DID YARD WORK FOR DEFENDANT HOMEOWNER, INCLUDING SPREADING MULCH AND USING HIS OWN LADDER TO TRIM A TREE; PLAINTIFF POSITIONED THE LADDER ON THE MULCH; THE LADDER FELL OVER WHEN PLAINTIFF WAS STANDING ON IT; DEFENDANT HOMEOWNER DID NOT CREATE OR HAVE NOTICE OF THE DANGEROUS CONDITION (THE MULCH) AND DID NOT SUPERVISE OR DIRECT PLAINTIFF’S TREE-TRIMMING WORK; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendant homeowner’s motion for summary judgment in this ladder-fall case should have been granted. Plaintiff alleged defendant asked him to trim some tree branches. Plaintiff placed his own ladder on mulch which he (plaintiff) had spread there as part of his landscaping work. Plaintiff alleged the mulch constituted a dangerous condition which caused the ladder to tip. Plaintiff also alleged the owner exercised supervision and control over his work and was liable for directing him to trim the tree:

Even assuming that defendant had a conversation with plaintiff, the request to trim the trees was a general instruction about what needed to be done without any direction about how to perform the task … . It is undisputed that defendant neither provided any equipment for the project nor directed the manner in which the ladder was placed or the trimming performed … . …

As to the dangerous condition theory of liability, … defendant did not create the hazard, as it is undisputed that plaintiff and his associates were the ones who spread the mulch and placed the ladder … . Nor is there any evidence that defendant had actual or constructive notice of the allegedly dangerous condition. Defendant was not shown to have expertise in landscaping and, even if he was inside the house when the ladder was being set up on the mulch, this general awareness would be insufficient to establish notice of an unsafe condition … . Vickers v Parcells, 2021 NY Slip Op 05762, Third Dept 10-21-21

 

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PURSUANT TO CPLR 3408 (B), WHEN DEFENDANTS IN THIS FORECLOSURE ACTION APPEARED WITHOUT COUNSEL AT THE SETTLEMENT CONFERENCE, SUPREME COURT SHOULD HAVE DETERMINED WHETHER THEY WERE ENTITLED TO ASSIGNED COUNSEL, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for a finding whether defendants in this foreclosure action are eligible for assigned counsel, determined the judge did not comply with CPLR 3408 (b) at the settlement conference:

[CPLR 3408 (b)] provides that, at the initial foreclosure settlement conference, “any defendant currently appearing pro se[] shall be deemed to have made a motion to proceed as a poor person under [CPLR 1101]. The court shall determine whether such permission shall be granted pursuant to standards set forth in [CPLR 1101]” (CPLR 3408 [b]). Because defendants appeared at the June 2016 settlement conference without representation, each was “deemed to have made a motion to proceed as a poor person” and Supreme Court was required to determine such motion (CPLR 3408 [b]). Although Supreme Court erred in failing to adhere to its obligations under CPLR 3408 (b), the question remains whether defendants would have been eligible for the assignment of counsel based upon their financial circumstances. The record does not contain adequate information to render such a determination (see CPLR 1101 [a]). The eligibility for assigned counsel is a threshold issue that must be resolved before we can determine the merits of this appeal. As such, we withhold decision and remit the matter to Supreme Court to render a determination as to defendants’ eligibility for assigned counsel as of the June 2016 settlement conference … . Carrington Mtge. Servs., LLC v Fiore, 2021 NY Slip Op 05743, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding:

… [I]t was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. … [T]he quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence … , which was not established here. * * *

… [T]he court permitted petitioner to introduce unproven allegations against respondents from the underlying neglect proceeding, evidence relating to other conduct that predated the … order, as well as inadmissible hearsay contained in the case notes authored by petitioner’s employees and the children’s therapists. As the court’s decision is replete with references to this evidence, the admission of this evidence, if relied upon at all to establish willful violations, irreparably tainted its decision … . Matter of Nicholas L. (Melissa L.), 2021 NY Slip Op 05746, Third Dept 10-21-21

 

CLAIMANT WAS NOT AN EMPLOYEE OF A COMPANY RUNNING A WEBSITE AND APP TO CONNECT PET OWNERS WITH PET SITTERS, WALKERS AND BOARDERS, ETC. (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board (“Board”), determined claimant was not an employee of Rover, a website which connects pet owners to pet sitters, walkers, boarders, etc.:

Rover only exercises control over the platform that a provider uses to find client pet owners and not any part of the job itself … , and this type of incidental control over the provider’s services is insufficient to establish an employer-employee relationship … . More analogous to fitness instructors and odd-job taskers, and, in contrast to Uber drivers or Postmates couriers, providers are individually selected by their client pet owners and “have the ability to create a following or generate their own [repeat] customer base” … . As Rover does not exercise any control over the manner in which the providers perform their services, the means used or results produced, substantial evidence does not support the Board’s determination that Rover exercised sufficient direction, supervision and control over the providers to demonstrate an employment relationship … . Matter of Hawkins (A Place for Rover Inc.–Commissioner of Labor), 2021 NY Slip Op 05748, Third Dept 10-21-21​

 

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