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THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN’S BUSINESS DEVELOPMENT ERRONEOUSLY IGNORED THE EVIDENCE PRESENTED AT THE HEARING BEFORE AN ADMINSTRATIVE LAW JUDGE WHICH DEMONSTRATED PETITIONER MET THE CRITERIA FOR A WOMEN-OWNED BUSINESS ENTERPRISE (WBE) (THIRD DEPT).

The Third Department, annulling the determination of the Division of Minority and Women’s Business Development of the Department of Economic Development (the Division), found the petitioner had demonstrated it met the criteria for certification as a woman-owned business enterprise (WBE). In its contrary ruling, the Division erroneously ignored the evidence presented at the hearing before the Administrative Law Judge (ALJ) which had ruled in favor of the petitioner:

Petitioner contends that the determination should be annulled because the Director refused to consider the testimonial evidence introduced at the administrative hearing in assessing the regulatory factors, and we agree. … [F]ollowing a determination denying an application for certification as a WBE, the applicant is, upon written request, entitled to an administrative hearing before an independent hearing officer … . The hearing officer must thereafter conduct the hearing based upon the information included in the request for a hearing as it relates to the information that was provided by the applicant with its certification application, and each party must be accorded a full opportunity to present evidence, including calling witnesses and cross-examining other parties and their witnesses … . The hearing officer may also “request additional information and take other actions necessary to make an informed decision” … , which ultimately must be based upon his or her “consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence” … .

The proof adduced at the administrative hearing was highly relevant to the issue of whether petitioner met the criteria for WBE certification. Matter of Scherzi Sys., LLC v White, 2021 NY Slip Op 05143, Third Dept 9-30-21

 

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THE 3RD DEPARTMENT ANNULLED THE DETERMINATION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) WHICH FOUND THAT THE FIREFIGHTERS DID NOT DEMONSTRATE THE CITY FAILED TO NEGOTIATE BEFORE UNILATERALLY IMPOSING A SALARY REDUCTION (THIRD DEPT).

The Third Department, reversing the Public Employment Relations Board (PERB), determined the city did not fulfill its obligation to negotiate a change in salary for its firefighters:

PERB acknowledged petitioners’ claims that the City made a unilateral determination to end the past practice of paying night differential, check-in pay and holiday pay in calculating regular wages and benefits to current employees should they receive General Municipal Law § 207-a (2) benefits in the future, but rejected those contentions upon the ground that petitioners had only documented the City’s intent to discontinue those payments with regard to retirees to whom it owed no duty to bargain. … The parties … orally stipulated at the hearing … that “those affected [by the City’s unilateral change in benefits] are those in the unit as of the alleged unilateral change,” necessarily referring to current employees who are members of the bargaining units rather than the retirees who are not … . The parties later reinforced that point by stipulating that the unilateral change was made “in a uniform[] fashion to all members of both bargaining units,” again using language necessarily referring to current employees to whom the City owes a duty to bargain. In the absence of any indication that counsel lacked authority to enter into those unambiguous factual stipulations or that some cause sufficient to invalidate a contract existed for setting the stipulations aside, they are binding  … . Thus, as the parties stipulated that the City’s unilateral actions impacted current employees in the bargaining units, PERB’s finding that the record was barren of proof on that point is not supported by substantial evidence, and it follows that PERB’s determination must be annulled … . Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 2021 NY Slip Op 05144, Third Dept 9-30-21

 

PETITIONER-POLICE-OFFICER’S SLIP AND FALL ON BLACK ICE WAS A COMPENSABLE ACCIDENT UNDER THE RETIREMENT AND SOCIAL SECURITY LAW BECAUSE THE METEOROLOGICAL CONDITIONS WERE SUCH THAT THE PRESENCE OF BLACK ICE COULD NOT HAVE BEEN ANTICIPATED (THIRD DEPT).

The Third Department, reversing (modifying) the hearing officer’s ruling, determined the petitioner-police-officer’s slip and fall on black ice was a compensable “accident” within the meaning of the Retirement and Social Security Law:

Petitioner testified that, while patrolling his assigned area on the evening in question, he observed a group of youths congregating in a local parking lot. Consistent with his patrol duties, petitioner pulled into what he described as the poorly illuminated parking lot with the intention of instructing the group to disperse. As petitioner exited his vehicle, he slipped on what he later described as black ice and sustained injuries. Petitioner testified that, although it was cold and blustery at the time of his fall, it was not raining or snowing, and he did not recall any precipitation occurring in the days prior to the incident. As petitioner was focused on “[o]bserving the scene,” he also did not recall looking down at the surface of the parking lot prior to exiting his patrol vehicle. * * *

Absent some indication of meteorological conditions that would be amenable to the presence or formation of black ice, respondent’s determination — that petitioner could have reasonably anticipated the slippery condition that he encountered at the time of his fall — is not supported by substantial evidence … . Matter of Castellano v DiNapoli, 2021 NY Slip Op 05148, Third Dept 9-30-21

 

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THE SENTENCE AGREED TO IN THE PLEA BARGAIN AND IMPOSED BY THE COURT WAS ILLEGAL BECAUSE IT WAS LESS THAN STATUTORILY REQUIRED; THE SENTENCE WAS VACATED AND THE MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW THE PLEA (THIRD DEPT).

The Third Department determined defendant’s sentence was illegal because it was less than statutorily required. Because the plea agreement included the illegal sentence, the sentence was vacated and the matter was remitted to give the defendant the opportunity to withdraw his plea:

Defendant had previously been convicted of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) in 2019. Inasmuch as that conviction was within five years of the instant plea of guilty to driving while intoxicated, Vehicle and Traffic Law § 1193 (1-a) (a) requires the additional penalty of either five days in jail or 30 days of community service. As no such penalty was imposed by the court, the sentence imposed is less than is statutorily required and, therefore, is illegal.

“Where the plea bargain includes a sentence which is illegal because the minimum imposed is less than that required by law, . . . the proper remedy is to vacate the sentence and afford the defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea” … . Accordingly, the matter must be remitted to County Court for resentencing in accordance with the governing sentencing statute, with the opportunity for defendant to withdraw from the plea agreement … . People v Gary, 2021 NY Slip Op 05052, Third Dept 9-23-21

 

CLAIMANT, WHO WAS NOT EMPLOYED AT THE TIME COVID-PANDEMIC-RELATED UNEMPLOYMENT BENEFITS BECAME AVAILABLE, WAS NOT ELIGIBLE TO RECEIVE THE COVID-PANDEMIC BENEFITS (THIRD DEPT).

The Third Department determined claimant was not entitled to COVID-pandemic-related unemployment insurance benefits because she was not employed at the time the benefits became available:

Claimant was ineligible for regular unemployment insurance benefits given her failure to work during the relevant period and contended that she was unable and unavailable to work due to one of the qualifying factors for pandemic unemployment assistance, namely, that she was “unable to reach [her] place of employment because [she was] advised by a health care provider to self-quarantine due to concerns related to COVID-19” (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]). … The statutory directive that an applicant be “unable to reach the place of employment” presupposes that he or she has a place of employment to reach, however, removing from its scope individuals such as claimant who were not working or scheduled to start working at the time they were directed to self-quarantine (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]). The Board read the statutory language in that manner and in accord with guidance from the United States Department of Labor — the federal agency tasked with providing operating instructions for the joint federal-state pandemic unemployment insurance program (see 15 USC § 9032 [b]) and from which we take judicial notice — that an individual “must have an attachment to the labor market and must have experienced a loss of wages and hours or [be] unable to start employment following a bona fide job offer” in order to obtain pandemic unemployment assistance … . Thus, as “‘the federal agency expressly concurs in the state’s interpretation of the statute, and the interpretation is a permissible construction of the statute,’ the interpretation is entitled to deference,” and it follows that substantial evidence supports the Board’s finding that claimant was not entitled to pandemic unemployment assistance … . Matter of Mangiero (Commissioner of Labor), 2021 NY Slip Op 05062, Third Dept 9-23-21

 

THE FACT THAT THE LADDER SLID OR SHIFTED AND FELL WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF DID NOT NEED TO DEMONSTRATE THE LADDER WAS DEFECTIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case. Plaintiff alleged the ladder slid or shifted and then fell. In that circumstance plaintiff does not have to demonstrate the ladder was defective and any comparative negligence on plaintiff’s part should not be considered:

Defendants argue that the statutory requirement was not met because plaintiff testified that there was no defect in the extension ladder and that it felt secure. Although defendants have produced evidence that the ladder may not have been defective, the adequacy of the ladder is not a question of fact when it “slips or otherwise fails to perform its function of supporting the worker” … . …

Although defendants cite to numerous actions on the part of plaintiff in support of this contention, including that plaintiff did not (1) use an alternative safety device or scaffold to install the guidewires, (2) have supervision or ask for assistance when using the ladder or (3) clear the snow upon which the feet of the ladder were placed, these arguments merely raise a question as to plaintiff’s comparative negligence, which will not relieve defendants from liability … . Begeal v Jackson, 2021 NY Slip Op 05000, Third Dept 9-16-21

 

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IN THIS ELECTION LAW CASE, THE SIGNATORIES’ NAMES WERE PRINTED ON THE DESIGNATING PETITION BUT WERE INSCRIBED ON THE VOTER REGISTRATION FORMS; SUPREME COURT PROPERLY ACCEPTED PROOF THAT THE SIGNATORIES WHOSE NAMES WERE PRINTED WERE IN FACT THE SAME AS THOSE WHOSE SIGNATURES WERE ON THE REGISTRATION FORMS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly received evidence that signatories whose names were printed on the independent nominating petition were in fact the same as those whose signatures were inscribed on the voter registration forms:

It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory’s registration form” … . Nevertheless, where there is “credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition,” the signatures are valid, notwithstanding a discrepancy with the voter registration forms … . Here, respondents submitted affidavits from 21 of the 47 signatories with printed signatures in which they attested that they were the same individuals whose signatures appeared on the independent nominating petition. Based on those affidavits, which the court properly received in evidence, we conclude that the court did not err in determining that petitioner failed to meet her burden of proof with respect to the invalidity of those 21 signatures … . Matter of Maclay v Dipasquale, 2021 NY Slip Op 05013, Fourth Dept 9-16-21

 

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HUSBAND DID NOT DEMONSTRATE HIS WIFE FRAUDULENTLY INDUCED HIM TO MARRY HER TO OBTAIN UNITED STATES CITIZENSHIP; THE MARRIAGE SHOULD NOT HAVE BEEN ANNULLED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the husband did not demonstrate he was fraudulently induced to marry his wife. Husband argued his wife, who was from the Philippines, induced him to marry her in order to become a United States citizen. Supreme Court annulled the marriage. The Third Department held the husband did not meet his burden of proof:

Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§ 7 [4]; 140 [e] … ). To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse’s consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased … . …

The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. The husband’s proof primarily consisted of testimony establishing premarital and marital discord between the parties. Although the husband sought to attribute that discord to a fraudulent premarital intent, he ultimately failed to demonstrate “that the marital break was due to any cause other than the general discontent and incompatibility of the parties” … . Indeed, the husband’s own proof demonstrated that, during their marital spats, the wife indicated her desire to leave the marriage and return to her family and friends in the Philippines. The fact that she remained in the United States after the parties ceased cohabitating is insufficient to demonstrate that, prior to the marriage, the wife had the intent to induce the husband to marry with the sole objective of obtaining an immigration benefit. In determining otherwise, Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. Travis A. v Vilma B., 2021 NY Slip Op 04996, Third Dept 9-16-21

 

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THE FINDING BY THE BOARD OF ZONING APPEALS WAS NEVER FILED AS REQUIRED BY THE GENERAL CITY LAW; THEREFORE THE 60-DAY TIME LIMIT FOR CONTESTING THE RULING NEVER STARTED TO RUN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 60-day statute of limitation for contesting a ruling of the board of zoning appeals (BZA) never started to run because the ZBA’s finding was never filed:

General City Law § 81-a (5) (a) imposes an affirmative duty on administrative officials charged with the enforcement of a local zoning law or ordinance in mandating that “[e]ach order, requirement, decision, interpretation or determination . . . shall be filed. . . within five business days from the day it is rendered, and shall be a public record” … . General City Law § 81-a (5) (b) states that “[a]n appeal shall be taken within [60] days after the filingof any order, requirement, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought” (… see Code of the City of Ithaca § 325-40 [B] [1] [e]). Upon review of the record, it is impossible to ascertain exactly when the Planning Board determined that variances were not necessary. However, it is undisputed that no determination of such finding was ever filed. As General City Law § 81-a (5) (b) plainly provides that the time period for commencing a review proceeding is to be measured from the filing, and there was no filing, the time period for the administrative appeal never began to run … . Matter of Grout v Visum Dev. Group LLC, 2021 NY Slip Op 04997, Third Dept 9-16-21

 

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GARAGEKEEPER’S LIEN DECLARED NULL AND VOID UNDER THE DOCTRINE OF LACHES (THIRD DEPT).

The Third Department determined that the garagekeeper’s lien action was properly declared null and void under the doctrine of laches. The respondent did not start the Lien Law action for six months, during which storage charges of $55-a-day were accruing:

“A garagekeeper’s lien is authorized by Lien Law § 184 (1) and the purpose of this statute is to provide the repair shop with security for the labor and material it expends which enhance the value of the vehicle” … . “The statute is in derogation of common law and thus is strictly construed” … . “Laches is defined as an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party” … . We are unpersuaded by respondent’s claim that the doctrine of laches is inapplicable to the circumstances of this case as the claim is purely statutory and does not lie in equity. Petitioner, by posting a $15,000 bond as collateral for respondent’s claim, has attempted in good faith to discharge the lien. We note that this action to enforce the lien is equitable, not legal, in nature … . … [I]t is clear from the record that petitioner was unaware of the existence of the lien until more than six months after storage charges began to accrue, and it was prejudiced by respondent’s assertion of such claim after such a prolonged period of delay. “It is well settled that where neglect in promptly asserting a claim for relief causes prejudice to one’s adversary, such neglect operates as a bar to a remedy and is a basis for asserting the defense of laches” … . Matter of Santander Consumer USA, Inc. v Steve Jayz Automotive Inc., 2021 NY Slip Op 04998, Third Dept 9-16-21

 

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