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THE BOARD DEPARTED FROM ITS PRECEDENT WITHOUT EXPLANATION, REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board departed from its precedent without explanation:

… [T]he Board did not follow its precedent in finding that, due to his failure to show labor market attachment, he had no compensable lost time from June 16, 2016 to January 26, 2017. The Board has previously held that findings regarding labor market attachment are limited to the period subsequent to the date when the issue was first raised by the workers’ compensation carrier … . Although the record reflects that the Special Fund first raised labor market attachment during the January 26, 2017 hearing, the Board found no compensable time from June 1, 2016 to November 9, 2018 based upon a lack of proof of labor market attachment. “While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious” …  Inasmuch as the Board did not explain its departure from prior precedent in finding that claimant was not entitled to awards from June 1, 2016 to January 26, 2017, that part of the decision must be reversed and the matter remitted for further proceedings … . Matter of Delk v Orange & Rockland, 2021 NY Slip Op 00604, Second Dept 2-4-21

 

CLAIMANT, A LIVE-IN HOME HEALTH ATTENDANT, WAS INJURED WHEN SHE FELL AFTER PICKING UP MEDICAL RECORDS FROM HER DOCTOR’S OFFICE; THE PURPOSE OF HER VISIT TO THE DOCTOR’S OFFICE WAS NOT PURELY PERSONAL; THEREFORE SHE WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that claimant, a 24-hour home health aide, was entitled to Workers’ Compensation benefits even though she was injured when she fell after picking up records from her doctor’s office:

… [I]t is undisputed that it was routine for claimant to escort her client on four- or five-hour walks on days where the client had no scheduled appointments, such as the day of the subject incident. According to claimant, while on such a walk on the day of the incident, she and her client elected to briefly stop at the subject doctor’s office for multiple reasons — to collect medical paperwork pertaining to claimant’s employment and to confirm whether the doctor accepted the client’s insurance prior to scheduling her an appointment. * * *

… [T]here is not substantial evidence that claimant’s actions represented a deviation from employment as conduct specifically prohibited by the employer … . Further, without regard to whether claimant prospectively inquired about the acceptance of her client’s insurance, claimant’s act of briefly stopping while on a routine walk with her client, regardless of where that stop took place, simply cannot be said to be purely personally or wholly unrelated to her work. Moreover, stopping at the subject doctor’s office in order to collect the subject paperwork benefited the employer by allowing claimant to continue to provide round-the-clock care to her client, and to secure the documentation necessary to ensure that such care would not be interrupted in the future. We therefore find that, under the circumstances, claimant’s activity was reasonable, sufficiently work related and, thus, not purely personal, such that the Board’s decision to the contrary is not supported by substantial evidence … . Matter of Sharipova v BNV Home Care Agency, Inc., 2021 NY Slip Op 00605, Third Dept 2-4-21

 

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A PUBLIC LIBRARY IS NOT SUBJECT TO THE PREVAILING WAGE REQUIREMENTS OF THE LABOR LAW; THEREFORE THE CLEANING CONTRACTOR HIRED BY THE LIBRARY WAS NOT REQUIRED TO PAY ITS EMPLOYEES THE PREVAILING WAGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the public library was not subject to the prevailing wage requirements of the Labor Law, Therefore the petitioner cleaning service, hired by the library, was not required to pay its employees the prevailing wage:

Although we are mindful that the prevailing wage law “is to be interpreted with the degree of liberality essential to the attainment of the end in view”… , that mandate does not permit an overly-broad reading of the statute that expands its reach to noncovered entities … . The library at issue undoubtedly performs a public function and is closely intertwined with the school district that it serves, but it is not itself “a municipal corporation, school district, district corporation [or] board of cooperative educational services” — the entities that are considered to be “[p]olitical subdivision[s]” of the state for purposes of public contracts … . By statute, an “education corporation” and a “school district” are separately defined, indicating “that they are mutually exclusive” … . An “education corporation” is a type of corporation formed for reasons “other than for profit” … , whereas a “school district” is a type of “municipal corporation” … . Reflecting its status as a distinct entity, the library’s Board of Trustees is vested with independent decision-making authority and operational control … . Nor do we view the library as “operat[ing] a public improvement” so as to be considered a public benefit corporation within the embrace of Labor Law § 230 (3) … , or as constituting any of the other public entities included within Labor Law article 9. Consequently, we hold that the library at issue is not a public agency within the meaning of Labor Law § 230 (3). Matter of Executive Cleaning Servs. Corp. v New York State Dept. of Labor, 2021 NY Slip Op 00461, Third Dept 1-28-21

 

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PLAINTIFF HIGH SCHOOL BASEBALL PLAYER ASSUMED THE RISK OF BEING STRUCK WITH A BALL DURING A PRACTICE DRILL WHERE MULTIPLE BALLS WERE IN PLAY; TWO DISSENTING MEMORANDA (THIRD DEPT).

The Third Department, over two separate dissents, determined plaintiff high school baseball player assumed the risk of injury from being struck with a ball during a so-called “Warrior Drill” where multiple balls are in play:

Having more than one ball in play may not be an inherent risk in a traditional baseball game, but the record indicates that it is a risk inherent in baseball team practices … . Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen. Thus, the conditions were “as safe as they appear[ed] to be” … .  As the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine … . Grady v Chenango Val. Cent. Sch. Dist., 2021 NY Slip Op 00468, Third Dept 1-28-21

 

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BEFORE PETITIONER INMATE’S ARTICLE 78 PETITION WAS CONSIDERED RESPONDENT VOLUNTARILY REVERSED THE GUILTY FINDINGS ON THE PRISON DISCIPLINARY VIOLATIONS; PETITIONER WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY” (THIRD DEPT).

The Third Department determined petitioner inmate was not entitled to attorney’s fees as a prevailing party pursuant to the Equal Access to Justice Act [EAJA] (CPLR Article 86). Petitioner contested guilty findings on several prison disciplinary violations and brought an Article 78 proceeding. Before the Article 78 petition was considered the respondent reversed the disposition and expunged it from petitioner’s prison record. Petitioner then sought attorney’s fees as the prevailing party:

Petitioner contends that he is entitled to counsel fees because he prevailed in the litigation under the “catalyst theory.” [The catalyst theory posits that a petitioner is a prevailing party if the desired result is achieved because the proceeding brought about the voluntary change in the respondent’s conduct … .] * * *

Although this Court has not decided whether it will adopt the catalyst theory in EAJA cases, when this Court has been asked to adopt the catalyst theory in other counsel fee award cases, it has declined to do so as the “United States Supreme Court has clearly held that a voluntary resolution of a matter lacks the necessary judicial imprimatur to warrant an award of [counsel] fees” … . … [T]he Court of Appeals specifically agreed … . The same reasoning applies here. The change in the legal relationship was accomplished prior to answering the petition, was based on the voluntary actions of the Department of Corrections and Community Supervision, and was “not enforced by a consent decree or judgment of Supreme Court” … . Matter of Clarke v Annucci, 2021 NY Slip Op 00473, Third Dept 1-28-21

 

THE 202O AMENDMENT TO CPL 30.30 WHICH ALLOWS AN APPEAL ALLEGING A VIOLATION OF THE SPEEDY TRIAL STATUTE AFTER A GUILTY PLEA DOES NOT APPLY RETROACTIVELY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, determined the 2020 amendment to Criminal Procedure Law 30.30 which allows an appeal alleging the violation of the speedy trial statute after a guilty plea does not apply retroactively:

At the time of defendant’s plea in November 2017 and his sentencing in April 2018, it was settled law that a guilty plea forfeited a defendant’s right to claim that the trial court erred in denying his or her CPL 30.30 speedy trial motion … . However, CPL 30.30 (6), which was enacted as part of an omnibus budget bill in April 2019 and became effective on January 1, 2020 … , provides that “[a]n order finally denying a motion to dismiss pursuant to [CPL 30.30 (1)] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” * * *

“… [I]t is a bedrock rule of law that, absent an unambiguous statement of legislative intent, statutes that revive time-barred claims if applied retroactively will not be construed to have that effect” … . People v Duggins, 2021 NY Slip Op 00336, Third Dept 1-21-21

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING OF NEGLECT ON MOTHER’S PART (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support a finding of neglect on the part of mother (respondent). Although mother’s husband (Bradley CC.) had been violent on two occasions, the children did not witness the incidents:

Respondent’s handling of the domestic abuse and Bradley CC.’s alcohol and substance misuse gave petitioner reasonable cause for concern. Indeed, the evidence established that respondent — a recovering heroin addict — was aware that Bradley CC. had a substance and alcohol abuse problem but failed to acknowledge — or minimized — the impact that such problem was having or could have on her and the children. Respondent admitted to coping with the circumstances by habitually using marihuana, but was resistant to treatment and mental health counseling and failed to recognize the problematic nature of her chosen coping mechanism, particularly given her history of addiction. Despite the concern that respondent was not dealing with the circumstances in a healthy manner, there was no evidence that she used marihuana in the presence of the children or that her usage had ever rendered her unable to care for the children … . While engaged with preventative services with petitioner, respondent seemingly understood the potential impact that Bradley CC.’s drinking could have on the children and agreed to a safety plan stating that he was not to be left alone to care for the children. … * * *

Respondent’s failings … do not rise to such a level to support the conclusion that her actions and inactions actually impaired the children’s physical, mental or emotional conditions or placed the children at imminent risk of such impairment … . Matter of Lexie CC. (Liane CC.), 2021 NY Slip Op 00342, Third Dept 1-21-21

 

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CPLR 205 (A), WHICH ALLOWS AN ACTION TO BE REFILED WITHIN SIX MONTHS OF DISMISSAL, DOES NOT APPLY TO MOTIONS; THE DEFENDANTS WERE AGGRIEVED BY AN ORDER WHICH STAYED THE PROCEEDINGS FOR FURTHER SUBMISSIONS AND THEREFORE COULD APPEAL THE ORDER (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined CPLR 205 (a), which allows an action to be refiled within six months of dismissal under certain conditions, does not apply to motions. Here the plaintiff sought to bring a second motion for a deficiency judgment pursuant to Real Property Actions and Proceedings Law (RPAPL) 1371 after the first was deemed untimely because it was not served within the 90-day time-frame. The dissenter argued the defendants were not aggrieved by the lower court’s order which stayed the proceedings for further submissions and therefore could not appeal:

As an initial matter, plaintiff contends that, because Supreme Court did not ultimately rule on the relief sought — namely a deficiency judgment — and instead issued a stay to allow further submissions from the parties, defendants are not aggrieved by the ruling and the appeal should be dismissed. … We disagree. A party is aggrieved when the court denies the relief it requested or grants relief, in whole or in part, against a party who had opposed the relief … . Here, defendants opposed plaintiff’s second motion for a deficiency judgment as untimely. Had Supreme Court agreed, the case would have been dismissed outright, and defendants would have been relieved of any deficiency judgment. Instead, they continue to be involved in litigation and remain exposed to the potential of said judgment and the financial consequences attendant thereto. Defendants are therefore clearly aggrieved by the finding of timeliness by Supreme Court. * * *

… [P]laintiff urges this Court to find the second motion timely by applying CPLR 205 (a), allowing it to file the second motion six months after the denial of the first motion. … Here, the statute provides that “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action” … . An action is defined as “a civil or criminal judicial proceeding” … . CPLR 105 defines an action to include a special proceeding, whereas a motion is defined as “an application for an order” (CPLR 2211). RPAPL 1371 (2) and (3) expressly direct that a motion for a deficiency judgment be made. Motions are not subject to the tolling provision of CPLR 205 (a). Had the Legislature intended to include motions in CPLR 205 (a), it could have done so and its failure to do so, is presumed to be intentional … . Trustco Bank v The Preserve Dev. Group Co., LLC, 2021 NY Slip Op 00350, Third Dept 1-21-21

 

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FAMILY COURT SHOULD NOT HAVE REFUSED JURISDICTION OVER THIS CUSTODY AND NEGLECT PROCEEDING STEMMING FROM AN INCIDENT DURING A BRIEF VISIT TO TENNESSEE (THIRD DEPT). ​

The Third Department, reversing Family Court and ordering new proceedings in front of a different judge, in a full-fledged opinion by Justice Clark, determined Family Court completely mishandled this custody matter which involved neglect proceedings in Tennessee stemming from an incident during the family’s brief visit there. Family Court had refused to exercise jurisdiction over the matter on inconvenient-forum grounds. On appeal, all parties agreed Family Court had committed reversible errors:

… [T]here was no dispute that the children and their respective parents/custodian had lived in New York for at least six consecutive months prior to the April 2019 commencement of the neglect proceeding in Tennessee, thereby making New York the children’s home state … . Thus, pursuant to the UCCJEA, Family Court had jurisdiction over the neglect proceeding commenced in Tennessee … . * * *

The record irrefutably reflects that the children came into emergency care in Tennessee during a brief visit to the state and that, prior to entering care, they had not resided in Tennessee. The children’s respective parents/legal custodian reside in New York, as does a half sibling of one of the children. Roughly 850 miles separate the Tennessee court and Chemung County, and the parties have limited financial means to travel to Tennessee to participate in court proceedings or to visit with the children. Additionally, with the exception of DSS, which did not provide an appropriate basis in law for its objection, all parties and the Tennessee court agreed that Family Court should exercise jurisdiction over the dispositional phase of the neglect proceeding. Significantly, evidence regarding the children’s best interests and the feasibility of reunifying them with their respective parents and/or petitioner is in New York, including proof relating to any remedial and rehabilitative services offered to and engaged in by the mother and Jamie A. Any testimony required from witnesses located in Tennessee can be taken by phone. Matter of Diana XX v Nicole YY, 2021 NY Slip Op 00352, Third Dept 1-21-21

 

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THE EXECUTIVE ORDERS AND LEGISLATION PROHIBITING EVICTIONS DURING THE PANDEMIC APPLIED TO A HOLDOVER TENANT WHO HAD ENTERED AN AGREEMENT TO VACATE THE APARTMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mulvey, determined the Executive Orders and legislation prohibiting evictions during the COVID pandemic precluded the eviction of a holdover tenant based upon an agreement by the tenant to vacate the apartment:

On August 27, 2020, petitioner commenced a summary eviction proceeding seeking a warrant of eviction to remove respondents from the premises (see RPAPL 711 [1]). At an appearance before Supreme Court on September 17, 2020, the parties, with the assistance of counsel, reached an agreement in which respondents agreed to vacate the premises on or before October 2, 2020. Pursuant to the agreement, the court issued a warrant of eviction, effective October 3, 2020, to be executed if respondents failed to vacate. Respondents remained on the premises and, on October 5, 2020, the Sullivan County Sheriff’s Office, in accordance with the warrant, served respondents a 14-day notice indicating that the eviction would take place on October 21, 2020. After counsel for respondent Kaia Humphrey (hereinafter respondent) contacted the County Attorney’s office regarding the suspension of evictions via a new executive order issued by Governor Andrew Cuomo, petitioner moved for an order seeking, among other things, enforcement of the parties’ agreement to vacate and of the warrant of eviction. Following a virtual appearance on October 20, 2020, Supreme Court granted petitioner’s motion and ordered enforcement of the warrant of eviction. Respondent appeals. * * *

Because these executive orders prohibit enforcement of residential evictions, without any exceptions for holdover proceedings or warrants issued based on stipulations, Supreme Court was precluded from ordering enforcement of the warrant to evict respondents. Further executive orders have extended the stay on enforcements to December 3, 2020 … . …

Furthermore, on December 28, 2020, the Legislature passed, and the Governor signed, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 … . That act, which was effective immediately … , allows tenants to file a hardship declaration, which will prevent an eviction until at least May 1, 2021 … . Matter of Cabrera v Humphrey, 2021 NY Slip Op 00358, Third Dept 1-21-21

 

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