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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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PURPORTED MORTGAGE PAYMENTS MADE AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION DID NOT REVIVE THE STATUTE OF LIMITATIONS FOR THE PURCHASERS OF THE ENCUMBERED PROPERTY OR THE BANK WHICH ISSUED A MORTGAGE SECURED BY THE ENCUMBERED PROPERTY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined mortgage payments allegedly made after the expiration of the statute of limitations for a foreclosure action did not revive the statute of limitations as against defendants, who purchased the encumbered property, and defendant bank which issued a mortgage secured by the property:

… [T]he tolling or revival effect of partial payments differs as between the payor — the Gureckis — and subsequent purchasers — defendants (see General Obligations Law § 17-107 [2]). [A] qualifying partial payment that is made before the expiration of the statute of limitations will renew the statute of limitations against any subsequent purchaser (see General Obligations Law § 17-107 [2] [2d par] .. ). In contrast, a qualifying partial payment that is made after the expiration of the statute of limitations will only revive the statute of limitations as to a subsequent purchaser who did not give value or who had actual notice of the making of the payment … . Here, … at the time that [the payments] were made the statute of limitations had expired. Given that the record is clear that defendants are purchasers for value and plaintiff put forth no evidence that defendants had actual notice of the … payments, the payments did not have the effect of reviving the statute of limitations as to defendants (see General Obligations Law § 17-107 [2] …). Gurecki v Gurecki, 2020 NY Slip Op 07257, Third Dept 12-3-20

 

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THE RECEIPT OF THE LETTER BY CERTIFIED MAIL, NOT THE PRIOR RECEIPT OF AN EMAIL WITH THE LETTER ATTACHED, TRIGGERED THE FOUR-MONTH STATUTE OF LIMITATIONS FOR BRINGING AN ARTICLE 78 PROCEEDING; THE OMISSION OF THE REQUIREMENT THAT THE RESPONDENTS BE SERVED WITH THE ORDER TO SHOW CAUSE COULD BE REMEDIED BY AN EXTENSION OF THE TIME TO EFFECT SERVICE PURSUANT TO CPLR 306-B (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the receipt of a letter by certified mail on January 22, not the receipt of the email with the letter attached on January 17, started the four-month statute of limitations for the Article 78 action. The letter was the final determination of the respondent Department of Health, denying petitioner’s application to open an assisted living facility.  In addition, the Third Department determined a mistake made in the order to show cause, which did not require service upon the respondents, could be remedied. Therefore petitioners should be granted an extension of time to serve respondents pursuant to CPLR 306-b:

There is no dispute that the January 17 letter constituted a final and binding determination. At issue is whether counsel’s receipt of the January 17 email or counsel’s receipt of the January 17 letter by certified mail on January 22, 2019 provided the notice necessary to trigger the running of the statute of limitations. …

We recognize that there is only one letter, the January 17 letter, a copy of which was attached to the January 17 email and the original was delivered by certified mail on January 22, 2019. That said, even though an email delivery could have sufficed, respondents opted to effect delivery of the January 17 letter through the more formal certified mailing process, by which actual delivery and receipt are confirmed with the recipient’s signature. Given that format, it was not necessarily unreasonable for petitioners to have assumed that receipt of the January 17 letter on January 22, 2017 triggered the limitations period or, at least, an ambiguity was created as to whether to measure the time period from that date. As such, we conclude that Supreme Court erred in granting respondents’ motion to dismiss the petition as untimely … . …

Petitioners submitted, and Supreme Court signed, a proposed order to show cause providing for service upon respondents by service on the Attorney General. Petitioners complied with the terms of that order, but such service was manifestly defective because petitioners were also statutorily required to effect service upon respondents (see CPLR 307, 7804 [c]). In their cross motion, petitioners promptly sought permission to correct this error, and it is evident that respondents were in no way prejudiced. Not to be overlooked is the looming expiration of the statute of limitations. Under such circumstances, rather than dismissing a proceeding, a court is authorized to extend the time for service “upon good cause shown or in the interest of justice” (CPLR 306-b …). Matter of Park Beach Assisted Living, LLC v Zucker, 2020 NY Slip Op 07264, Third Dept 12-3-20

 

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ALL BUT ONE COUNT OF THE INDICTMENT WAS RENDERED DUPLICITOUS BY THE CHILD-VICTIM’S GRAND JURY TESTIMONY IN THIS SEXUAL ABUSE CASE; THE SIMILAR UNCHARGED OFFENSES SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX AS BACKGROUND EVIDENCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial determined: (1) the duplicitous counts of the indictment should have been dismissed pre-trial, not post-trial; (2) the evidence of similar uncharged offenses under Molineux should not have been admitted as “background evidence.” The defendant was charged with sexual abuse of a child. With the exception of one incident (count 1), the child was not able to pinpoint when the abuse happened. All but count 1 were rendered duplicitous by the grand jury testimony (indicating that more than one offense occurred in the one-month time-frame of the indictment counts). In addition, the similar uncharged allegations were too prejudicial to be allowed under Molineux:

“[U]nder . . . Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions” … . The proffered Molineux evidence was not necessary to resolve any ambiguity as to count 1, and thus was beyond the Molineux exception for background information as provided by County Court in its ruling … . If the court had dismissed counts 2 through 13 as duplicitous prior to the People’s presentation of their case-in-chief, that likely would have changed the court’s calculus as to the admission of the victim’s testimony regarding uncharged crimes — including whether to allow testimony regarding the incidents referred to in those dismissed counts, which would no longer be direct evidence of charged crimes. Even if the testimony regarding the uncharged criminal conduct was permissible for a nonpropensity purpose, its prejudicial nature outweighed the minimal probative value that may be attributed to it as to count 1 … . While in some circumstances the undue prejudice resulting from Molineux evidence may be mitigated by a limiting instruction, here such an instruction was only provided once in the final charge to the jury, and not at the time of the victim’s testimony, despite County Court having indicated that those instructions would be provided at the time that such evidence was admitted … . People v Holtslander, 2020 NY Slip Op 07250, Third Dept 12-3-20

 

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THE DISTRICT ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED FROM PROSECUTING THE DEFENDANT FOR ALLEGED SEX OFFENSES ON THE GROUND THAT, AS A FAMILY COURT JUDGE, THE DISTRICT ATTORNEY HAD PRESIDED OVER FAMILY COURT PROCEEDINGS INVOLVING THE DEFENDANT AND THE ALLEGED VICTIM OF THE CHARGED SEX OFFENSES (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner, the county district attorney, should not have been disqualified from prosecuting Jamel Brandow for sex offense charges on the ground that, as a Family Court judge, the district attorney had presided over Family Court proceedings against Brandow which also involved the alleged victim of the current charges:

Pursuant to Judiciary Law § 17, a former judge “shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character” … . Here, contrary to respondent’s determination, the underlying criminal matter was not in any way before petitioner in his former judicial capacity. Although petitioner presided over proceedings brought against Brandow in Family Court in 2008, the matters litigated in those proceedings bear no similarity to the allegations of sexual misconduct charged in the indictment … . Further, although petitioner determined that Brandow violated an order of protection issued in favor of the victim and others, the violation did not arise out of any contact between Brandow and the victim. Accordingly, as the underlying criminal matter was not previously before petitioner in his judicial capacity, Judiciary Law § 17 does not prohibit petitioner’s prosecution of the subject criminal charges … . Matter of Czajka v Koweek, 2020 NY Slip Op 07009, Third Dept 11-25-20

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN; TWO OF THE THREE PRONGS OF THE RELATION BACK DOCTRINE WERE NOT DEMONSTRATED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the relation back doctrine did not apply and plaintiff’s motion to amend the complaint to add a party after the statute of limitations had run should not have been granted. Initially plaintiff named two individuals as defendants, Smithem and Dey, in this medical malpractice, wrongful death action. After the statute had run plaintiff’s attorney realized Smithem and Dey were not the right parties and sought to amend the complaint to add Crystal Run Healthcare. Plaintiff acknowledged that Crystal Run employees Smithem and Dey never performed the conduct alleged in the complaint, so Crystal Run was not united in interest with the named defendants. In addition plaintiff failed to demonstrate the correct parties could not have been identified before the statute of limitations ran:

The relation back doctrine allows a plaintiff to amend the complaint to add a party even though the statute of limitations has expired if the plaintiff satisfies three conditions: (1) both claims must arise out of the same occurrence; (2) the proposed defendant must be united in interest with the original defendants; and (3) the proposed defendant must have known or should have known that, but for a mistake by the plaintiff as to the proposed defendant’s identity, the action would have been also brought against it … . …

Supreme Court found that Crystal Run was united in interest with both Smithen and Dey by virtue of an employer-employee relationship and principles of vicarious liability. Although such circumstances can lead to a finding of unity in interest … , plaintiff has candidly admitted that Smithen and Dey are free from any and all liability because they never performed the conduct that is the basis of the complaint. As such, plaintiff has vitiated any claim of vicarious liability. …

Although plaintiff alleged that Smithen and Dey were employed by Catskill Regional Medical Center in the complaint, the answers of both the hospital and Smithem denied said allegation. Additionally, plaintiff served Smithem (and attempted to serve Dey) at Crystal Run. Plaintiff’s failure to act on this knowledge prior to the expiration of the statute of limitations is not the type of mistake contemplated under the relation back doctrine … . Fasce v Smithem, 2020 NY Slip Op 07010, Third Dept 11-25-20

 

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TOWN PLANNING BOARD PROPERLY ISSUED A SPECIAL USE PERMIT FOR THE INSTALLATION OF A MAJOR SOLAR SYSTEM; DENIAL OF A SPECIAL USE PERMIT CANNOT BE BASED SOLELY UPON COMMUNITY OPPOSITION (THIRD DEPT).

The Third Department determined the town planning board properly issued the special use permit for a major solar energy system. Petitioners objected to the project alleging “negative visual impact and negative impact on adjoining property values.” The court found that the planning board had complied with the State Environmental Quality Review Act (SEQRA), the relevant Local Law and the relevant zoning ordinance.  The court noted a special use permit cannot be denied solely based upon community opposition:

A Planning Board may not deny a special use permit based “solely on community objection” … . Petitioners and the community objected to the project due to potential concerns of negative visual impact and negative impact upon adjoining property values. The Planning Board had ample evidence to support its determination that these impacts would be minimal. The visual assessment survey determined that, between the existing vegetation and the topography, the completed project would not be readily visible to the surrounding area. The Planning Board further found that the property owner’s concern about potential reflected glare from the solar panels was adequately addressed through Eden’s use of anti-glare coating. To further shield the community’s view of the project and to allow adjoining property owners to cut down their own trees if they so choose, the Planning Board required a 1,600-foot evergreen barrier. This evergreen screen, the property’s continued use of the land for beekeeping and sheep grazing and the determination that the project will not affect any historic resources all provide a rational basis for the Planning Board’s determination that the character of the neighborhood and property values would be reasonably safeguarded. Matter of Biggs v Eden Renewables LLC, 2020 NY Slip Op 07011, Third Dept 11-25-20

 

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FOIL REQUEST FOR THE “COMPREHENSIVE STUDY” RE NEW YORK’S TRANSITION TO 100% RENEWABLE ENERGY WAS PROPERLY INTERPRETED TO BE A DEMAND FOR THE COMPLETED REPORT, WHICH THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) CERTIFIED HAD NOT BEEN CREATED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined petitioner’s FOIL request was properly denied because the Department of Environmental Conservation (DEC) certified that the document did not exist because it had not been completed. Petitioner had requested “an electronic copy of the ‘comprehensive study’ ordered by Gov. Andrew Cuomo ‘to determine the most rapid, cost-effective, and responsible pathway to reach 100[%] renewable energy statewide’ as detailed in [the] January 10, 2017 press release and as completed prior to revisions mentioned publicly by NYSERDA [New York State Energy and Research Development Authority] in February 2019.” The majority held the DEC properly interpreted the request as a demand for the completed report, which the DEC certified had not been created. The dissenters argued the request should not have been interpreted as a demand for the completed study, but rather as a request for any relevant documents:

Where, as here, an agency maintains that it does not possess a requested record, the agency is required to certify as much (see Public Officers Law § 89 [3]). Here, respondents submitted affidavits from Alicia Barton, the president and chief executive officer of NYSERDA, and Carl Mas, the Director of the Energy and Environmental Analysis Department of NYSERDA, as well as an affirmation from Daniella Keller, an attorney who served as DEC’s records access officer at the relevant time. In their sworn affidavits, Barton and Mas attested that the study referenced in Governor Cuomo’s January 2017 press release had yet to be completed at the time of petitioner’s FOIL request. Keller stated, in her affirmation, that DEC records custodians had conducted a search of relevant files and advised her that the requested record did not exist because the study “had not been drafted.” Such sworn attestations amply satisfy respondents’ obligations under Public Officers Law § 89 (3) … .

Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if it can “articulate a demonstrable factual basis to support [the] contention that the requested document[] existed and [was] within the [agency’s] control”… [S]peculation and conjecture does not warrant a hearing or a rejection of the sworn statements of Barton and Mas — individuals with personal knowledge of the study and its status — and Keller … . Matter of Empire Ctr. for Pub. Policy v New York State Energy & Research Dev. Auth., 2020 NY Slip Op 07126, Third Dept 11-25-20

 

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