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CARRIER PROPERLY ORDERED TO PAY FOR CLAIMAINT’S PAIN TREATMENT WITH MEDICAL MARIJUANA (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Egan, determined the Workers’ Compensation Board properly issued a variance allowing coverage for medical marijuana for treatment of claimant’s pain. The opinion is too detailed to fairly summarize here. The carrier’s federal conflict preemption and statutory (Public Health Law) exemption arguments were rejected:

“The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law” … . At issue here is conflict preemption, “which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” … .

* * * [R]equiring the carrier to reimburse claimant … does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling “the legitimate and illegitimate traffic in controlled substances” … , particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates. Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

 

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PLAINTIFFS’ ACTION STEMMING FROM PFOA CONTAMINATION PROPERLY SURVIVED SUMMARY JUDGMENT; THE DOCTRINE OF PRIMARY JURISDICTION DID NOT APPLY; QUESTIONS OF FACT RAISED ABOUT THE DUTY OF CARE, PROXIMATE CAUSE, PRIVATE NUISANCE, TRESPASS AND PUNITIVE DAMAGES (THIRD DEPT).

The Third Department determined plaintiffs’ complaint in this PFOA contamination case properly survived defendant’s motion for summary judgment. The court found that the doctrine of primary jurisdiction did not apply, defendant owed plaintiffs a duty of care, defendant did not demonstrate it did not proximately cause the alleged injuries, there was a question of fact on the private nuisance and trespass causes of action, and the punitive damages claim was proper. With respect to the doctrine of primary jurisdiction, the court wrote:

[The] doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”… . Defendant argues that the various regulatory agencies, who have the requisite expertise, have been investigating the matter at issue and that the recovery sought by plaintiffs is already being provided by these agencies. We disagree. Although defendant points to an announcement that the Department of Health will be providing medical monitoring, this announcement merely stated that a study was being proposed and that, if funded, the study would last for five years. Contrary to defendant’s representation, there was no definitive statement that the medical monitoring would be provided. As to the remediation of plaintiffs’ private wells, the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiffs in the second amended complaint. Accordingly, defendant’s argument is without merit. Burdick v Tonoga, Inc, 2021 NY Slip Op 01178, Third Dept 2-25-21

 

FATHER PROPERLY FOUND TO HAVE SEVERELY ABUSED ALL THE CHILDREN IN THE HOME; DESPITE THE WORDING OF THE SEVERE ABUSE STATUTE, WHICH USES THE TERM “PARENT,” THE COVERAGE OF THE STATUTE IS NOT LIMITED TO BIOLOGICAL CHILDREN (THIRD DEPT).

The Third Department, on February 23, 2021, vacated and replaced the opinion in this case which was originally released on February 18, 2021. In the vacated opinion the court held father could not be deemed to have severely abused the children who were not his biological children because the severe abuse statute uses the term “parent.” However, in the replacement opinion, the court ruled father was properly found to have severely abused all of the children in the home. Father was present when mother severely beat her daughter, who subsequently died:

With respect to the father, although he is only the biological father of the younger daughter and the younger son, he lived with and had been in a relationship with the mother for approximately five years and, in his statement to police, referred to the all of the children in the home as “[o]ur kids.” The older daughter and the older son, moreover, refer to him as “dad” and there is no dispute that he was a person legally responsible for the subject children’s care at all relevant times (see Family Ct Act §§ 1012 [a]; 1051 [e]). Thus, as the deceased child’s brutal beating occurred while the father was present in the downstairs of the home, at a time when the mother’s yelling and the deceased child’s screaming could be heard throughout the house, we are satisfied that the father’s conduct in failing to intervene or otherwise take any action to provide the deceased child with life-saving medical care satisfied the elements of severe abuse as against her (see Social Services Law § 384-b [8] [a] [i]; Family Ct Act § 1051 [e] … ). The father’s conduct also evinced “such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” … . Accordingly, we discern no reason to disturb Family Court’s finding that the father derivatively severely abused the four surviving children … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01155, Third Dept 2-18-21

 

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ALTHOUGH FATHER WAS CULPABLE IN THE SEVERE BEATING BY MOTHER AND THE SUBSEQUENT DEATH OF THE CHILD, THE SEVERE ABUSE STATUTE APPLIES ONLY TO “PARENTS” AS OPPOSED TO “PERSONS LEGALLY RESPONSIBLE;” BECAUSE FATHER WAS NOT THE BIOLOGICAL FATHER OF THE CHILD BEATEN BY MOTHER, THE SEVERE ABUSE ADJUDICATION WAS REVERSED (THIRD DEPT).

ON FEBRUARY 23, 2021, THIS OPINION WAS VACATED AND THE SEVERE ABUSE FINDINGS AGAINST FATHER WERE UPHELD FOR ALL FOUR CHILDREN, NOT JUST FATHER’S BIOLOGICAL CHILDREN. REVISED DECISION-SUMMARY TO FOLLOW.

The Third Department, in a full-fledged opinion by Justice Egan, reversing the severe abuse and derivative severe abuse adjudications against the father regarding mother’s biological children, otherwise affirmed the abuse and severe abuse and derivative abuse and derivative severe abuse adjudications, The severe abuse statute, unlike the abuse statute, permits only a finding against a parent (as opposed to a person legally responsible for the child). Because father was not the biological father of the child who died after a severe beating by mother, the severe abuse statute did not apply:

… [W]ith respect to Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son, we are reluctantly constrained to reverse said findings. As this Court has previously made clear, and as petitioner and the attorney for the child concede, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012 [a] …), the current statutory language contained in Social Services Law § 384-b (8) (a) (i) only permits a finding of severe abuse to be made against a child’s “parent” … . Although we are satisfied that the evidence at the fact-finding hearing demonstrates, by clear and convincing evidence, that the father’s failure to intervene to stop the brutal beating of the deceased child or thereafter take any action to provide her with life-saving medical care would otherwise satisfy the elements of severe abuse as against her … and, consequently, derivative severe abuse as against the older daughter and the older son … , because he is not the biological father of these children, Family Court was statutorily precluded from rendering such findings and we, therefore, are constrained to reverse same … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01096, Third Dept 2-18-21

 

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FAMILY COURT DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT BEFORE RULING OHIO HAD JURISDICTION IN THE CUSTODY MATTER; MOTHER’S NEW YORK FAMILY OFFENSE PETITION SHOULD NOT HAVE BEEN DISMISSED BECAUSE NEW YORK HAS SUBJECT MATTER JURISDICTION OVER FAMILY OFFENSES OCCURRING IN OHIO (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) Family Court did not follow the procedure required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before ruling that Ohio had jurisdiction based on father’s custody petition there and dismissing mother’s New York child support and custody petitions: and (2) Family Court should not have dismissed mother’s New York family offense petition, even though the majority of alleged offenses occurred in Ohio:

Family Court failed to satisfy the procedural mechanisms required by the UCCJEA when a custody petition is pending in another state. After becoming aware of the Ohio proceeding, Family Court properly communicated with the Ohio court … . The extent of these communications is unclear; however, they apparently resulted in the transmittance of the Ohio order to Family Court. Although the contents of the Ohio order strongly implied that the Ohio court intended to retain jurisdiction, as evidenced by its scheduling of the matter for trial, this did not absolve Family Court of its obligation to create a record of its communications and to provide that record to the parties … . Family Court’s brief summary of its determination following the communication, which was not placed on the record in the presence of the parties, does not satisfy this statutory mandate … . Moreover, although it was a permissible exercise of discretion for Family Court not to permit the parties to participate in its communication with the Ohio court … , the court was then required to allow the parties an opportunity to present facts and legal arguments before it rendered a decision, which it failed to do … . Thus, “[i]nasmuch as we cannot discern from the record whether Family Court erred in determining that it lacked jurisdiction and, on that basis, dismissing the mother’s custody petition, we reverse and remit” for Family Court to render a determination after creating an appropriate record and, if required, affording the parties an opportunity to present facts and legal arguments … . …

… [A]lthough the majority of the acts alleged in the family offense petition occurred in Ohio, Family Court’s jurisdiction is not subject to the same geographic limitations as placed on that of the criminal courts, as nothing “requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction” … . Matter of Vashon H. v Bret I.2021 NY Slip Op 01103, Third Dept 2-18-21

 

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CLASS CERTIFICATION FOR PERSONS DENIED PUBLIC ASSISTANCE BASED ON THE FAIR MARKET VALUE (FMV) OF THEIR VEHICLES WAS PROPER; THE OPT-IN PROCEDURE SHOULD BE USED TO IDENTIFY CLASS MEMBERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the opt-in procedure should be used to identify members of the class who were denied public assistance based upon the fair market value (FMV) of their cars. The class certification by Supreme Court was found proper:

In our prior decision regarding this matter, we affirmed so much of Supreme Court’s judgment as annulled a determination of the Office of Temporary and Disability Assistance (hereinafter OTDA) denying petitioner’s application for public assistance … . We agreed with Supreme Court that the methodology that OTDA was using to calculate whether an applicant had available resources from an automobile — which focused on the fair market value (hereinafter FMV) of the applicant’s vehicle in excess of the statutory exemption (see Social Services Law § 131-n [e]) regardless of whether the applicant had any equity interest therein — was “irrational and unreasonable” … . * * *

… [T]he opt-in approach would prove more efficient … . … In those instances where the opt-in notice is returned as undeliverable, OTDA should then be required to conduct a manual file review. Matter of Stewart v Roberts, 2021 NY Slip Op 01105, Third Dept 2-18-21

 

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THE CHILD’S STATEMENTS ABOUT SEXUAL TOUCHING WERE ADEQUATELY CORROBORATED AND FATHER’S EXPLANATION FOR THE TOUCHING WAS NOT SUPPORTED BY THE EVIDENCE (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence supported sexual abuse and neglect by respondent-father. The child’s statements were sufficiently corroborated and the father’s explanation for touching the child was not credible:

… [T]he proof of the child’s consistent descriptions of the inappropriate touching to various individuals, the child’s dramatic change in behavior, the reenactment of the touching through sand and play therapy and respondent’s admissions satisfied the relatively low threshold of corroboration … . Matter of Lily BB. (Stephen BB.), 021 NY Slip Op 01106, Third Dept 2-18-21

 

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THE FINDINGS LEADING TO THE TERMINATION OF PETITIONER WERE CONCLUSORY AND DID NOT ALLOW MEANINGFUL REVIEW; PETITIONER’S SUPERVISOR, WHO BROUGHT THE MISCONDUCT CHARGES, CHOSE THE HEARING OFFICER AND TESTIFIED AT THE HEARING, SHOULD RECUSE HERSELF FROM FURTHER PROCEEDINGS ON REMITTAL (THIRD DEPT).

The Third Department, annulling the termination petitioner’s employment with the county, determined the findings were conclusory and therefore did not allow meaningful review. In addition, the Third Department held that petitioner’s supervisor, KIssane, who brought the misconduct charges, chose the hearing officer and testified at the hearing, should be disqualified from the proceedings on remittal:

“Administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review” … . The Hearing Officer made, at most, conclusory statements that petitioner was guilty of the relevant charges. More to the point, he failed to support these conclusions with any factual evidence adduced at the hearing … .. In the absence of specific factual findings, meaningful judicial review cannot be conducted. Accordingly, the determination must be annulled and the matter remitted for the development of appropriate findings … . * * *

“Although involvement in the disciplinary process does not automatically require recusal, . . . individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges” … . Matter of Morgan v Warren County, 2021 NY Slip Op 01107, Third Dept 2-18-21

 

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QUESTION OF FACT WHETHER LEAVING AN ELEVEN-YEAR-OLD BOY UNSUPERVISED CONSTITUTED NEGLIGENCE; THE BOY, WHO WAS VISITING HIS 13-YEAR-OLD FRIEND’S HOME, WAS SEVERELY INJURED ATTEMPTING TO DO A FLIP OFF A PICNIC TABLE (THIRD DEPT).

The Third Department determined whether defendant was negligent in leaving an eleven-year-old boy unsupervised for six hours is a question of fact. School had been cancelled because of snow and defendant went to work. The boy was severely injured when he attempted to do a flip off a picnic table in the backyard:

“The adequacy of supervision and proximate cause are generally issues of fact for the jury” …. It is undisputed that the child was left unattended without any adult supervision for approximately six hours. Although some may argue that it is not unreasonable to leave a child his age unsupervised to allow a parent to go to work, there is no bright line test with regard to age, and we are loathe to impose same. When viewed in a light most favorable to plaintiff, a question of fact exists as to whether Beadle exercised reasonable supervision of the 11-year-old child. As to proximate cause, we discern no reason under the facts here to deviate from the general rule that proximate cause is a jury question … . Justin M. v Beadle, 021 NY Slip Op 01108, Third Dept 2-18-21

 

THE ZIP CODES ASSOCIATED WITH THE HOME ADDRESSES OF STATE EMPLOYEES SHOULD NOT BE PROVIDED PURSUANT TO A FOIL REQUEST BECAUSE THE FULL HOME ADDRESSES COULD EASILY BE FOUND ON THE INTERNET BY SEARCHING FOR AN EMPLOYEE’S NAME WITH THE RELATED ZIP CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing (modifying) Supreme Court, determined the request for the zip codes association with the residences of state employees should not have been granted on invasion-of-privacy grounds. The court noted that the employees’ full addresses could easily be determined by using the Internet to search for the person by name along with the related zip code:

As to special protections for state employee records, the Legislature’s enactment of Public Officers Law § 89 (7) indicates its desire to protect public employees from harassment at home. That statute provides that “[n]othing in [FOIL] shall require the disclosure of the home address of an officer or employee” of the state … . Moreover, by executive order the Governor has prohibited state agencies from disclosing state employees’ home addresses except when “compelled . . . by lawful service of process, subpoena, court order, or as otherwise required by law” … . These policy goals are relevant to the interests in protecting the personal privacy of government employees.

The scenario of numerous — or perhaps most — state employees being contacted at home by a private individual or organization that knows who they are, where they live and what they do for a living seems likely to be offensive and objectionable to most reasonable people … . Thus, release of home zip codes would constitute an unwarranted invasion of personal privacy under these circumstances. Accordingly, as respondent met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, Supreme Court erred in ordering the disclosure of such data. Matter of Suhr v New York State Dept. of Civ. Serv., 2021 NY Slip Op 01113, Third Dept 2-18-21

 

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