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ALTHOUGH THERE WAS EVIDENCE CLAIMANT MADE A FALSE STATEMENT ABOUT THE LEVEL OF HER INVOLVEMENT IN AN ONLINE BUSINESS WHILE SHE WAS RECEIVING WORKERS’ COMPENSATION BENEFITS, SHE WAS FORTHRIGHT ABOUT HER INVOLVEMENT WHEN QUESTIONED; PERMANENT DISQUALIFICATION FROM FUTURE BENEFITS WAS NOT WARRANTED (THIRD DEPT).

The Third Department, modifying the Workers’ Compensation Board, determined there was support in the record for the finding claimant omitted from her application for benefits that she was selling items online while receiving benefits, but the record did not support a permanent disqualification from future benefits. Claimant omitted the information because she had not turned a profit, but she was forthright about the online business when questioned about it:

“The fact that claimant had not yet realized a profit from [the activities] does not diminish [her] obligation to provide true and accurate information regarding [her] employment activities and such misrepresentations are clearly material to [her] claim” … . The evidence here revealed that claimant failed to accurately disclose her level of activity … . …

We note that claimant was readily forthcoming about her activities when questioned and declined to cash benefits checks after she resumed part-time work with the employer … . Based on all the circumstances presented, we do not find adequate support for the Board’s determination that claimant engaged in “an egregious pattern of conduct,” thus warranting permanent disqualification from future wage replacement benefits … . Matter of Conliffe v Darden Rest., 2020 NY Slip Op 06001, Third Dept 10-22-20

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FAMILY COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO DECLARE THE PARENTAGE OF A CHILD BORN TO A MARRIED SAME-SEX COUPLE BECAUSE THE CHILD WAS NOT BORN “OUT-OF-WEDLOCK;” RECENTLY ENACTED LEGISLATION WILL SOON ALLOW SUCH A PETITION IN FAMILY COURT AND THE PARTIES MAY NOW SEEK A DECLARATORY JUDGMENT ON THE ISSUE IN SUPREME COURT, WHICH HAS SUBJECT MATTER JURISDICTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, determined Family Court did not have subject matter jurisdiction over the petition to declare petitioners, a same-sex married couple, as the legal parents of the child conceived with donated sperm. Although the Family Court Act allows the court to determine “paternity” for a female parent, the court’s jurisdiction in that regard is limited to children born out-of-wedlock. The Third Department noted that legislation will soon allow a Family Court petition for a judgment of parentage and Supreme Court has jurisdiction to hear an application for a declaratory judgment on the issue:

… [T]he Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” … and further defined a child in Family Ct Act article 5 as one “born out of wedlock” … . Petitioners were married at all relevant times, and their child was not born out of wedlock. …

We note the recent enactment of Family Ct Act article 5-C, which will soon allow a petition for a judgment of parentage … . Moreover, if petitioners articulate how “an adjudication of the merits will result in immediate and practical consequences to” them … , they are presently free “to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties” … . Matter of Alison RR, 2020 NY Slip Op 06002, Third Dept 10-22-20

 

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THE RECORD DOES NOT DEMONSTRATE WHETHER THE DEFENDANT REVIEWED THE VERDICT SHEET WHICH INCLUDED UNAUTHORIZED ANNOTATIONS BY THE JUDGE; MATTER REMITTED FOR A RECONSTRUCTION HEARING (THIRD DEPT).

The Third Department, remitting the matter for a reconstruction hearing, determined the defendant’s consent to the judge’s annotations on the verdict sheet was required. Although the record indicated defense counsel was aware of the annotations and did not object, it was not clear from the record whether the defendant was shown the verdict sheet with the annotations:

“CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished. Absent a defendant’s consent, any other notations on the verdict sheet offend the letter of the law” … . “Although generally the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent, it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel fails to object to the verdict sheet after having an opportunity to review it” … . …

… [T]he notations as to counts 3 and 4 were not [authorized] … . Accordingly, defendant’s consent was required. To that end, at the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative. … [W]e cannot determine from the record whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers. People v Chappell, 2020 NY Slip Op 05978, Third Dept 10-22-20

 

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WHEN THE MERITS OF A MOTION TO REARGUE ARE ADDRESSED THE DENIAL IS APPEALABLE; THE PERSONAL SERVICE REQUIREMENTS FOR THE NOTICE OF SALE PURSUANT TO THE LIEN LAW WERE NOT MET, THEREFORE THE 10-DAY PERIOD FOR BRINGING A SPECIAL PROCEEDING TO CONTEST THE VALIDITY OF THE LIEN DID NOT START TO RUN (THIRD DEPT).

The Third Department noted that where the court addresses the merits of a motion to reargue it will be deemed to have granted the motion to reargue for purposes of appeal. Therefore, although the denial of a motion to reargue is not appealable, the denial after addressing the merits is appealable. In that case the motion is treated as if the motion to reargue were granted and then the original decision was adhered to. The court also noted that the requirements for the personal service of a notice of sale were not met in this case. Therefore the 10-day period for bringing a special proceeding to determined the validity of the lien did not start to run:

“Although, generally, no appeal lies from an order denying a motion to reargue, where the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . * * *

Under Lien Law §201-a, petitioner’s 10-day time period to “commence a special proceeding to determine the validity of the lien” does not begin to run until service upon it of the “notice of sale” by respondent, the lienor. Service of such notice of sale by the lienor must be effectuated by personal service “within the county where [the] lien arose,” unless the person to be served “cannot with due diligence be found within such county” (Lien Law § 201). … As Supreme Court correctly found, and as the record reflects, respondent failed to submit any proof that it exercised due diligence in seeking to effect personal service upon petitioner of the notice of lien and sale before improperly resorting to the statutory alternative of certified mail service. As a result, the 10-day time limitation for petitioner to challenge the lien under Lien Law § 201-a did not begin to run … . Matter of Manufacturers & Traders Trust Co. v J.D. Mar. Serv., 2020 NY Slip Op 05260, Third Dept 10-1-20

 

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AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’ COMPENSATION COVERAGE WAS ENTERED AS A SUPREME COURT JUDGMENT BY THE COUNTY CLERK IN ACCORDANCE WITH THE WORKERS’ COMPENSATION LAW; BY THE TERMS OF THE STATUTE, SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND DEFENDANT COULD NOT MOVE TO VACATE THE DEFAULT JUDGMENT (THIRD DEPT).

The Third Department determined a judgment entered in Supreme Court by the county clerk pursuant to the Workers’ Compensation Law 26  is not reviewable by Supreme Court. The Workers’ Compensation Board assessed a penalty against defendant for failure to maintain workers’ compensation coverage. When the penalty was not paid the judgment was entered by the county clerk as a ministerial act which cannot be addressed by a motion in Supreme Court to vacate a default judgment:

Defendants … ignore the peculiar statutory scheme by which only this Court may review a final determination by plaintiff with respect to, among other things, assessments ordered pursuant to Workers’ Compensation Law § 52 (5) up until the time that a judgment against an employer is entered. At that point, no appeal is permitted … .

Workers’ Compensation Law § 26 provides that where an employer fails to pay an assessment imposed pursuant to Workers’ Compensation Law § 52 (5) within 20 days after it is due, plaintiff’s chair may file a certified copy of the order imposing such assessment with the county clerk where the employer’s principal place of business is maintained. “[T]hereupon[,] judgment must be entered in the [S]upreme [C]ourt, by the clerk of such county in conformity therewith immediately upon such filing. . . . Such judgment shall be entered in the same manner, have the same effect and be subject to the same proceedings as though rendered in a suit duly heard and determined by the [S]upreme [C]ourt, except that no appeal may be taken therefrom” (Workers’ Compensation Law § 26 …). The entry of such judgment is “merely a ministerial act” made pursuant to Workers’ Compensation Law § 26 … . Indeed, the statute provides that the court shall “vacate or modify” the judgment only “to conform to any later award or decision of [plaintiff]” and “[t]he award may be so compromised [only] by [plaintiff and] in the discretion of [plaintiff]” (Workers’ Compensation Law § 26). Inasmuch as the entry of plaintiff’s order here by the County Clerk was “merely a ministerial act” … , Supreme Court lacked the authority to vacate the judgment because the underlying order was not issued by the court … . …

To allow defendants to petition a different court to vacate its default after judgment has been entered would undermine this statutory scheme by allowing a court other than this one to, in effect, review a final decision of plaintiff. Workers’ Compensation Bd. of the State of N.Y. v Williams Auto Parts Inc., 2020 NY Slip Op 05261, Third Dept 10-1-20

 

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CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER THE LABOR LAW, DESPITE THE FACT THAT FLS DID NOT MAINTAIN A FLEET OF TRUCKS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined Fundamental Labor Strategies (FLS) was claimant truck driver’s employer, pursuant to common law and the Labor Law (NYS Commercial Goods Transportation Industry Fair Play Act), despite the fact FLS did not maintain a fleet of trucks:

Labor Law § 862-b (1) provides, in relevant part, that “[a]ny person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee of the commercial goods transportation contractor unless” such person is either a separate business entity as defined by Labor Law § 862-b (2) or an independent contractor within the meaning of Labor Law § 862-b (1) (a)-(c). The statutory scheme further defines “commercial goods transportation services” as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in . . . New York, and operates a commercial motor vehicle” (Labor Law § 862-a [3]), and a “commercial goods transportation contractor” includes any legal entity that compensates a driver for performing such services (Labor Law § 862-a [1]). …

FLS falls squarely within the definition of a commercial goods transportation contractor as set forth in Labor Law § 862-a (1). Hence, the statutory presumption of employment applies in the first instance (see Labor Law § 862-b [1]).

To overcome the statutory presumption, FLS needed to establish that claimant was “free from control and direction in performing [his] job,” both under the terms of his letter agreement with FLS and “in fact” (Labor Law § 862-b [1] [a]), that the services rendered by claimant were “performed outside [FLS’s] usual course of business” (Labor Law § 862-b [1] [b]) and that claimant was “customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service” he performed for FLS (Labor Law § 862-b [1] [c]). All three criteria — commonly referred to as the ABC test — had to be met in order for claimant to be classified as an independent contractor (see Labor Law § 862-b [1]).

… [S]ubstantial evidence supports the Board’s finding that FLS failed to establish that claimant was free from direction and control in performing his job. Matter of Doster (Fundamental Labor Strategies–Commissioner of Labor), 2020 NY Slip Op 05262, Third Dept 10-1-20

 

CLAIMANT, A HAIRCARE PRODUCT SALES REPRESENTATIVE, WAS NOT AN EMPLOYEE OF THE PRODUCER OF THE HAIRCARE PRODUCTS AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a haircare product sales representative, was not an employee of Alterna Holding Corporation, the producer of the haircare products:

Alterna Holding Corporation produces haircare products that are sold at various retail stores. To facilitate its business, Alterna places sales and education representatives at the stores. These representatives educate store employees and customers about Alterna’s products. Claimant was a representative for Alterna at Sephora stores in the New York City area from April 2012 to September 2014. * * *

The record reflects that claimant received no initial training or instruction on how to perform her duties. Claimant was not required to submit reports, attend meetings or regularly check in with Alterna. Claimant was not responsible for supplying the product to the Sephora stores, and the sales of the product were carried out by Sephora employees. Although Alterna provided claimant with a list of Sephora stores for her to visit, she was not required to visit all the stores on the list if she did not want to, and claimant testified that there were some stores that she never visited. Claimant was never supervised while at the stores or had her performance reviewed. Claimant was advised to work five days a week, but she set her own schedule and she could take time off, including a week at a time, without notifying Alterna. Matter of Jordan (Alterna Holdings Corp.–Commissioner of Labor), 2020 NY Slip Op 05266, Third Dept 10-1-20

 

CLAIMANT DELIVERY DRIVER WAS AN EMPLOYEE OF A BUSINESS LOGISTICS COMPANY WHICH ARRANGED DELIVERIES FOR ITS CLIENTS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant delivery driver was an employee of TN Couriers (TNC) entitled to unemployment insurance benefits:

TN Couriers LLC (hereinafter TNC) is a business logistics company that acts as a broker between delivery drivers and clients seeking to have products transported from one location to another. Claimant was retained by TNC to deliver auto parts for The Radiator Store, one of TNC’s clients. * * *

Although the daily delivery activities of claimant and other drivers were directed by TNC’s client, TNC retained control over other important aspects of the work. These included screening driver applicants, assigning drivers to clients, setting the rate of pay, partially reimbursing expenses, establishing performance standards, requiring valid licenses and insurance, and handling client complaints. In view of this, we find that substantial evidence supports the Board’s finding that TNC exercised a sufficient indicia of control over claimant to be deemed his employer and liable for additional contributions … . Matter of Murray (TN Couriers LLC–Commissioner of Labor), 2020 NY Slip Op 05269, Third Dept 10-1-20

 

CLAIMANT WAS SIMULTANEOUSLY ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant was simultaneously entitled to an award for a schedule loss of use [SLU] and a permanent partial disability classification:

For the reasons more fully discussed in Matter of Arias v City of New York (182 AD3d 170, 172 [2020]), we agree with claimant’s contention that the Board erred in disregarding or attempting to distinguish Matter of Taher [162 AD3d 1288] … . Under Matter of Taher, a claimant who sustains both schedule and nonschedule permanent injuries in the same work-related accident and returns to work at preinjury wages — and, thus, has not received a reduced-earnings award based upon a nonschedule permanent partial disability classification (see Workers’ Compensation Law § 15 [3]) — is entitled to an SLU [schedule loss of use] award for permanent partial impairments to the statutorily enumerated body parts, here, claimant’s knee and possibly his left elbow (see Workers’ Compensation Law § 15 [3] [a] …). Matter of Garrison-Bey v Department of Educ., 2020 NY Slip Op 05273, Third Dept 10-1-20

 

CLAIMANT DID NOT TRY TO HIDE THE DOG-WALKING BUSINESS AND WAS ONLY TANGENTIALLY INVOLVED IN THE OPERATION OF THE BUSINESS; THEREFORE THE EVIDENCE DID NOT SUPPORT THE CONCLUSION SHE HAD MADE A MATERIAL FALSE STATEMENT IN HER CLAIM FOR WORKERS’ COMPENSATION BENEFITS STEMMING FROM HER FORMER EMPLOYMENT AS A BARTENDER (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant did not make a material false claim about her involvement in a dog-walking business after the injuries for which she sought Workers’ Compensation benefits. The Board had reversed the Workers’ Compensation Law Judge’s (WCLJ’s) finding to that effect. The Third Department held the evidence did not support the conclusion that claimant was involved in the dog-walking business, run by her brother, and therefore the evidence did not support the conclusion claimant had violated Workers’ Compensation Law 114-a by making a false statement

… [T]he record does not establish that claimant knowingly made a material false statement to influence her claim for compensation in violation of Workers’ Compensation Law § 114-a … . There is no indication that claimant actively participated in the business after she began receiving temporary total disability payments. Her involvement was tangential at best. Although the business remained intact, it was claimant’s brother who ran the day-to-day operations. Significantly, there is nothing to indicate that claimant attempted to hide the business, as the Board was well aware of its existence at the time that the WCLJ made the reduced earnings award. Accordingly, the Board’s decision finding that claimant violated Workers’ Compensation Law § 114-a and imposing penalties is not supported by substantial evidence and must be reversed. Matter of Nikac v Joal Rest. Corp., 2020 NY Slip Op 05274, Third Dept 10-1-20

 

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