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FATHER SHOULD NOT HAVE BEEN SENTENCED TO JAIL FOR NONPAYMENT OF CHILD SUPPORT BECAUSE HE HAD PAID THE ARREARS BEFORE THE ORDER OF COMMITMENT WAS ISSUED (THIRD DEPT).

The Third Department, reversing Family Court, determined it was an abuse of discretion to sentence father to jail for failure to pay child support after father paid the arrears:

The father contends that Family Court abused its discretion by imposing a 90-day jail sentence for the father’s willful violation of the prior support order. We agree. Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months” … .  “Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Here, the father presented payment at the hearing for the full amount of arrears owed and, therefore, Family Court abused its discretion when it issued the order of commitment … . Matter of Rondeau v Jerome, 2020 NY Slip Op 07960, Third Dept 12-24-20

 

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CLAIMANT’S APPLICATION TO SERVE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A VALID EXCUSE FOR THE DELAY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner’s application to serve a late notice of claim with respect to one of the two defendants (Albany Port District Commission) should have been granted. Although the excuse for failure to file was inadequate (ignorance of the requirement), the defendant had timely notice of the claim by virtue of surveillance cameras and an incident report, and defendant was not prejudiced by the delay:

… [M]embers of the Port Security Department came to the scene of the accident soon after petitioner’s fall to check on his condition and were able to observe the area where petitioner fell. Petitioner also averred that the Port Security Department was located approximately one hundred feet from where he fell and that there are surveillance cameras on the Port Security Department office building that are pointed at the area where petitioner fell. Petitioner also proffered an incident report form completed by one of the members of the Port Security Department who came to the scene the day of the accident. This form reflects the location of petitioner’s fall and that petitioner fell on ice, injured his back and was transported to the hospital by an ambulance. Thus, the Port had “more than merely generalized awareness of an accident and injuries” sufficient to establish actual notice … . …

… [T]he … standard requires a petitioner to initially “present some evidence or plausible argument that supports a finding of no substantial prejudice” … . Here, petitioner met this burden by showing … that the Port had actual notice of the incident sufficient to allow it to investigate the accident shortly after it occurred … . Additionally, petitioner submitted photographs and a video that suggest that the condition has not substantially changed from its appearance at the time of the accident. Matter of Perkins v Albany Port Dist. Commn., 2020 NY Slip Op 07963, Third Dept 12-24-20

 

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ALTHOUGH THE CARRIER HAD WAIVED ITS DEFENSE THAT THE INJURIES DID NOT ARISE OUT OF CLAIMAINT’S EMPLOYMENT BY FAILING TO SERVE A PREHEARING CONFERENCE STATEMENT, CLAIMANT WAS STILL REQUIRED TO PRESENT SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that, although the carrier had waived its defense that claimant’s injuries did not arise out of claimants’ employment as a police chief (by not serving a prehearing conference statement), the claimant was still required to present affirmative proof of that causal connection:

… [W]e agree with the Board that, as a result of its waiver of defenses, the carrier was precluded from submitting evidence on the issue of whether claimant’s injuries arose out of and in the course of claimant’s employment … . However, the waiver of defenses did not relieve claimant of his obligation of coming forward with sufficient proof to establish that he sustained a compensable injury … . In that regard, claimant bore the burden of demonstrating that a sufficient causal nexus existed between his employment and the motor vehicle accident that caused his injuries … . The degree of control exercised by the employer over the claimant’s activities at the time of the accident is controlling in determining whether the requisite causal nexus exists … .

The record evidence establishes that claimant, the Village Chief of Police, was in an accident while driving his police vehicle on the third day of a personal weekend trip to his son’s college, roughly 4½ to 5 hours away from the Village. Claimant testified that he carried his work cell phone, that he was on call 24 hours a day and that he drove his police vehicle to his weekend destination so that he could return to the Village if needed. However, claimant testified that he was not recalled at any point during the weekend and was not in the course of returning to work or attending to any other police matter at the time of his accident. Matter of Love v Village of Pleasantville, 2020 NY Slip Op 07968, Third Dept 12-24-20

 

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ONE PURPOSE FOR ASSESSING ATTORNEY’S FEES AGAINST THE AGENCY IN A FREEDOM OF INFORMATION LAW CASE IS TO DISCOURAGE DELAYS IN RESPONSES TO REQUESTS FOR DOCUMENTS; THEREFORE, EVEN THOUGH THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TURNED OVER THE DOCUMENTS BEFORE THE APPEAL, THE DEP STILL SHOULD PAY THE ATTORNEY’S FEES RELATED TO THE APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the request for attorney’s fees for the appeal in this Freedom of Information Law action should not have been denied. Supreme Court reasoned that the Department of Environmental Protection (DEP) had turned over the requested documents before the appeal:

Supreme Court suggested that it would be “unduly punitive” to include appellate counsel fees and costs in its award given that DEC had already disclosed all responsive, nonprivileged documents to petitioners. The goal of an award of counsel fees and costs under Public Officers Law § 89 (4) (c), however, is to deter “unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL” … . As we detailed in our prior decision (169 AD3d at 1311-1312), DEC failed to respond to petitioners’ FOIL administrative appeal in a timely manner and disclosed responsive documents after petitioners advanced a FOIL claim in this action/proceeding, and DEC then resisted petitioners’ efforts to recover counsel fees and costs incurred as a result of its dilatory conduct. In our view, those facts demonstrate that the portion of the prior appeal relating to petitioners’ FOIL claim stemmed from “the very kinds of unreasonable delays and denials of access which the counsel fee provision seeks to deter,” and Supreme Court accordingly abused its discretion in declining to include the counsel fees and costs connected thereto in its award … . Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969, Third Dept 12-24-20

 

UBER DRIVERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined that Uber drivers are employees entitled to unemployment insurance benefits:

Uber controls the drivers’ access to their customers, calculates and collects the fares and sets the drivers’ rate of compensation. Drivers may choose the route to take in transporting customers, but Uber provides a navigation system, tracks the drivers’ location on the app throughout the trip and reserves the right to adjust the fare if the drivers take an inefficient route. Uber also controls the vehicle used, precludes certain driver behavior and uses its rating system to encourage and promote drivers to conduct themselves in a way that maintains “a positive environment” and “a fun atmosphere in the car.” Considering the foregoing, we find no reason to disturb the Board’s finding of an employment relationship … . Matter of Lowry (Uber Tech., Inc–Commissioner of Labor), 2020 NY Slip Op 07645, Third Dept 12-17-20

 

CLAIMANT WAS AN EMPLOYEE OF A LOGISTICS COMPANY WHICH FACILITATES DELIVERIES (THIRD DEPT).

The Third Department determined claimant was an employee of a logistics company (US Pack) which facilitates deliveries and was therefore entitled to unemployment insurance benefits:

The record reflects that claimant was assigned specific workdays and hours by US Pack’s operations manager and was issued an identification badge bearing US Pack’s name. Claimant was required to sit in the client’s parking lot during set hours — for which he was paid a set fee — and wait for US Pack to contact him with assignments. The client would notify US Pack about assignments, which, in turn, would call claimant to retrieve the assignments. Claimant was required to call dispatch at US Pack once the assignments were loaded into his car. Once a delivery was completed, claimant was required to call dispatch again, providing the name of the person who accepted the delivery and the time delivery was complete, before moving onto the next delivery. Although claimant could refuse an assignment, he testified that when he did, he was told he could be fired, and the following day was punished by being passed over for assignments. Some compensation was negotiated, although claimant testified that US Pack set the compensation of some of the deliveries.

Although the record establishes that claimant used his own vehicle and was not reimbursed any expenses, the record nevertheless supports the Board’s conclusion that US Pack exercised sufficient supervision, direction and control over significant aspects of claimant’s work to establish an employer-employee relationship … . Matter of Thomas (US Pack Logistics, LLC–Commissioner of Labor), 2020 NY Slip Op 07642, Third Dept 12-17-20

 

DAMAGE TO A LEG MUSCLE, HERE THE HAMSTRING, SUPPORTED A SCHEDULE LOSS OF USE (SLU) AWARD, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined damage to a muscle, here the hamstring, qualified for a schedule loss of use (SLU):

The Board’s conclusion that no SLU award can be made because “no special consideration applies to a hamstring tear” fails to take into consideration that the 2018 guidelines specifically permit an SLU award to be based upon a permanent residual deficit caused by physical damage to a muscle, such as a hamstring. We recognize that the 2018 guidelines provide “useful criteria” and the Board makes the ultimate determination of a claimant’s degree of disability, but that determination must be supported by substantial evidence … . In finding that claimant]was not entitled to an SLU award, the Board did not discredit or find unpersuasive the medical opinion of either of the orthopedists, reject Rashid’s [the orthopedist’s] opinion that this hamstring tear injury most closely correlated to a quadricep rupture or find that the orthopedists’ SLU calculations were inadequately supported; rather, the Board found that, even if credited, the medical opinions could not support an SLU award here … . …

… [W]e find, contrary to the Board’s interpretation, that, in the absence of specific instructions regarding hamstring tears in the 2018 guidelines, a medical expert could rationally rely upon the special consideration for quadricep ruptures as the closest corollary to claimant’s injury and impairment. The absence  a special consideration addressing a hamstring impairment did not preclude an SLU award for a leg impairment … . Matter of Semrau v Coca-Cola Refreshments USA Inc., 2020 NY Slip Op 07650, Third Dept 12-17-20

 

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CLAIMANT, AN UNDOCUMENTED IMMIGRANT WITHOUT A SOCIAL SECURITY NUMBER, DEMONSTRATED DILIGENT EFFORTS TO FIND WORK AFTER HE WAS INJURED; THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE DENIED HIS CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board’s denial of benefits to claimant, an undocumented immigrant, over a two-justice dissent, determined claimant had made a sufficient showing of diligent efforts to find work (labor market attachment) after he was injured:

… “[T]he status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers’ compensation benefits” … , unless the worker cannot satisfy statutory requirements … . Likewise, the Board has recognized that an injured worker’s undocumented status “does not eliminate his [or her] need to make a reasonable search for work” … . …

The evidence at the hearing established that claimant attended school through the ninth grade in his country of birth and has exclusively worked in construction, both before coming to the United States at age 23 and for the eight years thereafter, until sustaining the subject injuries while performing heavy lifting at the employer’s construction site. With respect to his attachment to the labor market, claimant submitted completed forms listing 62 businesses to which he applied for work between April and December 2018 as a prep cook, dishwasher, restaurant helper and ironing worker. He identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status. He applied for both non-construction jobs, for which he lacked experience and language skills, and construction jobs, for which he had limited physical abilities due to his injuries. Potential employers informed claimant that (1) they were not hiring, (2) he lacked the requisite experience or (3) they could not hire him without a Social Security number. Claimant produced documentation establishing that he sought assistance from Workforce1, a job location service, which aided him in the preparation of a work-history rÉsumÉ in English; however, despite his willingness to use this service, Workforce1 ultimately advised him that he was unable to use its services for his job search because he lacked a Social Security number. Claimant registered at an adult learning center in order to take English language courses, but was placed on a wait list and, as of the time of the hearing, had yet to be contacted regarding an opening. Matter of Policarpio v Rally Restoration Corp., 2020 NY Slip Op 07442, Third Dept 12-10-20

 

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SUPREME COURT WENT BEYOND THE PERMISSIBLE REVIEW OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DETERMINATION UNION CARBIDE’S FOIL REQUESTS WERE MOOT BECAUSE THE REQUESTED DOCUMENTS HAD BEEN PROVIDED; ONCE SUPREME COURT FOUND THAT THE FOIL REQUEST WAS NOT MOOT BECAUSE THERE WERE ADDITIONAL DOCUMENTS, IT SHOULD NOT HAVE GONE ON TO CONSIDER WHETHER THE ADDITIONAL DOCUMENTS WERE EXEMPT FROM DISCLOSURE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court and remitting the matter to the Department of Environmental Conservation (DEP), determined Supreme Court exceeded its review powers with respect to DEP’s response to petitioner’s (Union Carbide’s) FOIL requests. Union Carbide sought documents relating to a study which determined the radioactive slag found at sites owned by Union Carbide was not the same as the radioactive slag produced by Union Carbide’s predecessor. The DEP had determined the FOIL requests were moot because the requested documents had been produced. Supreme Court properly held that the requests were not moot, but then improperly went on to consider whether the additional requested documents were protected from disclosure:

… [T]he administrative determination was that the first two FOIL requests were closed and that the administrative appeal with respect to the third FOIL request was moot given the production of responsive records prior to and following the filing of the appeal. As such, Supreme Court’s review was limited to whether the appeal was moot on the basis offered by the FOIL Appeals Officer, that being, whether all responsive records had been provided. By virtue of respondent’s in camera submission of additional documents to the court, it was evident that all responsive records had not been provided, and the administrative determination should have been annulled. However, in reviewing the subject documents and finding that those documents, with the exception of the site classification report, were statutorily exempted from disclosure, Supreme Court went beyond its mandate to “judge the propriety of [the agency’s] action solely by the grounds invoked by the agency” … . Accordingly, there was no basis for the court to determine that any exemption justified the withholding or redacting of the additional documents submitted to the court … . Inasmuch as the record demonstrates that additional documents responsive to petitioners’ FOIL requests exist and were not yet produced or examined by respondent’s FOIL Appeals Officer, we remit to Supreme Court to direct respondent to respond to petitioners’ FOIL requests by reviewing the additional subject documents and to determine in the first instance whether they are statutorily exempted from disclosure under the Public Officers Law. Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07445, Second Dept 12-10-20

 

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THE MALICIOUS PROSECUTION CAUSE OF ACTION AGAINST THE TOWN STEMMING FROM THE TOWN JUSTICE’S ISSUANCE OF AN ARREST WARRANT FOR PLAINTIFF SHOULD HAVE BEEN DISMISSED AS BARRED BY THE DOCTRINE OF JUDICIAL IMMUNITY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the malicious prosecution cause of action against the town should have been dismissed. Plaintiff daughter filed a report accusing her mother of withdrawing money from the daughter’s account without permission. An arrest warrant was issued. Plaintiff thereafter produced a power of attorney allowing her to withdraw money from her daughter’s account and the larceny charge against plaintiff was dropped. Plaintiff then brought a malicious prosecution action against the town and the village:

Under the doctrine of judicial immunity, a judge is immune from civil liability for any acts that he or she performs in the exercise of his or her judicial function … .

Defendants correctly observe that plaintiff’s malicious prosecution claim against the Town is premised solely upon the Town Justice signing the warrant authorizing plaintiff’s arrest. The record indisputably establishes that the Town Justice signed the arrest warrant in the exercise of his judicial function. Consequently, the doctrine of judicial immunity applies and Supreme Court should have dismissed the malicious prosecution claim against the Town on that basis … . Gagnon v Village of Cooperstown, N.Y., 2020 NY Slip Op 07256, Third Dept 12-3-20

 

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