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THE APPLICATION FOR REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION WAS PROPERLY DENIED BECAUSE THE APPLICATION DID NOT SPECIFY WHEN THE OBJECTIONS TO THE DECISION WERE MADE (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly refused review of the award of benefits sought by the carrier. The application form (requesting Board review) did not specify when the objections to the contested decision by the Workers’ Compensation Law Judge (WCLJ) were made:

… [B]oth the application (form RB-89) and the instructions in effect at the time that it was filed required the carrier to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed” … . This information was to be supplied by the carrier in question number 15 of the application. In response to this question, the carrier stated, “Objections were noted during the course of the hearing and at the conclusion of the hearing regarding the [WCLJ’s] finding that no additional development of the record was necessary on the issue of attachment to the labor market prior to directing awards based solely on the amendment to [s]ection 15 (3) (w) that took effect 04/10/17.” Significantly, the carrier failed to identify the hearing at which the objection was raised, and the record discloses that there was more than one hearing at which claimant’s labor market attachment was addressed. As the carrier failed to provide the temporal information required by the regulations, we cannot conclude that the Board abused its discretion in finding the application to be incomplete and declining to review the WCLJ’s decision … . Matter of Demarco v Trans Care Ambulance, 2020 NY Slip Op 04895, Third Dept 9-3-20

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING CLAIMANT’S INJURY WAS WORK-RELATED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence that claimant suffered a meniscus tear at work was insufficient:

“The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” … . Although the medical opinion evidence relied upon by the Board to demonstrate the existence of a causal relationship does not need to be expressed with absolute or reasonable medical certainty, “it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility” … . …

Bruce Greene, claimant’s treating orthopedic surgeon, testified that it was difficult to determine when the meniscus tear occurred. He further testified that there is “a strong possibility [that] there was an acute or chronic tear of [the] meniscus” and that it is “very reasonable that something could have happened at work that exacerbated a chronic [condition].” The Board, finding that the medical testimony expressing that it was “highly possible” that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between claimant’s employment and his injury. Matter of Johnson v Borg Warner, Inc., 2020 NY Slip Op 04897, Third Dept 9-3-20

 

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WHETHER MOTHER MOVED MORE THAN 40 MILES WAS AN ISSUE IN THIS MODIFICATION OF CUSTODY ACTION; FAMILY COURT TOOK JUDICIAL NOTICE THAT THE MOVE WAS 39 MILES; THE DISSENT ARGUED FAMILY COURT DID NOT DISCLOSE THE BASIS OF THE JUDICIAL NOTICE WHICH PRECLUDED A CHALLENGE TO THE FINDING (THIRD DEPT).

he Third Department determined Family Court properly found that mother had not moved beyond the 40-mile limit imposed by the settlement agreement. The Family Court judge took judicial notice of the distance involved in the move which was determined to be 39 miles. The dissent argued Family Court erred in not specifying the basis for the judicial notice, thereby making it impossible to challenge:

From the dissent:

Although it is well settled that “‘a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of undisputable accuracy'” … , judicial notice of a fact is improper when it is “from a hearsay source or from unidentifiable or nonindisputable sources outside the record or at a time subsequent to the close of testimony” … . Fundamental fairness thus dictates that a court, before it takes judicial notice of a fact, provide the parties with the basis for its notice and “afford the parties the opportunity to be heard as to the propriety of taking judicial notice in the particular instance” … . Otherwise, the determination of whether such fact is or is not “of common knowledge or determinable by resort to sources of indisputable accuracy” cannot be properly tested or reviewed … .

… .Family Court never disclosed the basis for its 39-mile calculation, and it announced that it was taking judicial notice of that “fact” after testimony had concluded and only in the context of its written decision. As such, the parties never had an opportunity to be heard on this issue or dispute the basis for such judicially noticed finding. Nor does the record reflect that Family Court had a factual basis for its conclusion that the relocation provision of the agreement — which the court itself recognized as ambiguous — required that the 40-mile radius be measured between the outermost borders of Deposit and Clarks Summit, rather than from the parties’ respective residences or some other location, particularly since the language of the agreement requires the mother’s residence for the children, and not the boundary line of Clarks Summit, to be within a 40-mile radius from an undetermined location in Deposit. Indeed, the testimony of both parties contradicts the court’s interpretation … . Matter of Lonny C v Elizabeth C., 2020 NY Slip Op 04620, Third Dept 8-20-20

 

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THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

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THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT).

The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper:

“[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified at the suppression hearing that the search of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9 search of the vehicle revealed “hits” at both the center console and the driver’s seat. According to the trooper, during the transport of defendant to the State Police barracks, the smell of marihuana was “overwhelming.” At the barracks, defendant was handcuffed to a bench and the trooper continued to smell marihuana. Each time the trooper asked defendant if he had marihuana on him, he denied it. After defendant was advised that he was to be strip-searched, he was taken to a private interview room and the search was conducted by two male officers. Defendant was asked to remove one article of clothing at a time; when he was down to his underwear, defendant handed over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence, a reasonable suspicion existed that defendant was concealing evidence and we find that the search was conducted in a reasonable manner … . People v Hightower, 2020 NY Slip Op 04513, Third Dept 8-13-20

 

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THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined defendant’s assertion that he was not adequately informed of the rights he was giving up by pleading guilty was not preserved for appeal. The dissent argued the court should consider the appeal under its interest of justice jurisdiction and reverse the conviction:

Defendant also asserts that his guilty plea was not knowing, voluntary and intelligent because County Court did not fully advise him of the rights that he was giving up by pleading guilty. This claim was not preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion … , and we decline to exercise our interest of justice jurisdiction to take corrective action.

From the dissent:

… County Court engaged in a limited and brief exchange with defendant in which it explained that, by pleading guilty, defendant was giving up the “right to remain silent and not to incriminate yourself,” the “right to a jury trial” and “any other rights you have on a trial.” County Court failed to advise defendant of his right to be confronted by witnesses. Additionally, and significantly, when asked if he had discussed the plea and its consequences with counsel, defendant merely stated, “She told me about violating, would be like 90 days. I understand.” The record does not establish that defendant understood and affirmatively waived the trial-related rights that he was automatically forfeiting by pleading guilty and, thus, defendant’s plea is invalid … . People v Cruz, 2020 NY Slip Op 04514, Third Dept 8-13-20

 

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FAMILY COURT RESOLVED CONFLICTING EVIDENCE AND CREDIBILITY ISSUES WITHOUT A HEARING, FAILED TO ACCEPT ALLEGATIONS IN A PRO SE MODIFICATION OF CUSTODY PETITION AS TRUE, IMPOSED A SANCTION FOR A VIOLATION OF A CUSTODY ORDER WHICH IS NOT ALLOWED BY THE CONTROLLING STATUTES, AND FAILED TO TAKE THE BEST INTERESTS OF THE CHILDREN INTO ACCOUNT (THIRD DEPT).

The Third Department, reversing Family Court, noted several errors in these proceedings which began with father’s violation of custody petitioner followed by two modification of custody petitions by mother. All the petitions were brought pro se. Family Court erred: (1) in dismissing mother’s modification petitions without a hearing; (2) in failing to accept as true and liberally construe mother’s pro se allegations; (3) in making factual findings and credibility determinations in the absence of a hearing on the modification petitions; (4) and in imposing an impermissible sanction on mother for an alleged violation of a custody order:

Family Court did not liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. …

… [R]ather than accept the mother’s allegations as true, Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father … . …

… [T]he only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753 [A]; Family Ct Act § 156 …). However, Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children. Matter of Gerard P. v Paula P., 2020 NY Slip Op 04515, Third Dept 8-13-20

 

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ALTHOUGH THE VICTIM’S FACIAL SCARS WERE SHOWN TO THE JURY NO DESCRIPTION OF THE SCARS APPEARS IN THE TRIAL RECORD AND NO PHOTOGRAPH OF THE SCARS WAS INTRODUCED; THEREFORE THE SERIOUS DISFIGUREMENT ELEMENT OF ASSAULT FIRST WAS NOT DEMONSTRATED AND THE ASSAULT FIRST CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (THIRD DEPT).

The Third Department, finding the assault first conviction to be against the weight of the evidence and reducing it to attempted assault first, determined the record of the evidence presented at trial did not support the serious disfigurement element in this knife attack case:

The testimonial, photographic and documentary evidence demonstrated that the victim sustained a laceration to his right cheek that was approximately four centimeters long, as well as a similarly sized laceration transversing the tip of his nose to his right nostril. Both lacerations were sutured by a plastic surgeon. Although the evidence clearly demonstrated the locations of the lacerations and their size prior to and immediately after suturing, the record is imprecise as to the extent and appearance of any resulting facial scars. The People did not introduce a photograph depicting the victim’s nose and right cheek at the time of trial or any time after the sutures had been removed and the lacerations healed … . Further, although the physician who treated the victim testified that the victim was expected to have facial scars and the victim did in fact display facial scars to the jury, the People failed to make a contemporaneous record of what the jury observed, so as to demonstrate the extent and appearance of those scars … . Moreover, despite their prominent locations, there is no indication that the relatively small facial lacerations produced jagged, uneven or “unusually disturbing” scars … . In the absence of a photograph depicting the victim’s facial scars or an on-the-record description of the victim’s scars at the time of trial, we cannot conclude that the record evidence supports a finding of serious disfigurement … . People v Harris, 2020 NY Slip Op 04431, Third Dept 8-6-20

 

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DOCTRINE OF PRIMARY JURISDICTION PRECLUDED THIS CIVIL SUIT AGAINST OFFICERS OF THE UTILITY AFTER THE PUBLIC SERVICE COMMISSION DETERMINED PLAINTIFF’S ELECTRICITY HAD BEEN PROPERLY CUT OFF BY THE UTILITY BECAUSE PLAINTIFF HAD REPLACED THE METER (THIRD DEPT).

The Third Department determined the doctrine of primary jurisdiction precluded plaintiff’s lawsuit against former officers of the Central Hudson Gas & Electric Corporation. Plaintiff believed the digital encoder receiver transmitter (ERT) installed at his home by the utility to replace an analog meter emitted cancer-causing radiation. Plaintiff removed the ERT and replaced it with an analog meter. The utility considered the meter dangerous and cut off plaintiff’s electricity. Plaintiff complained to the Public Service Commission (PSC) which supported the utilities’ power cut-off and informed plaintiff of his appeal rights. Plaintiff did not appeal and started the instant civil suit:

… [W]e find that Supreme Court was correct in its interpretation of the doctrine of primary jurisdiction. Under the doctrine of primary jurisdiction, a court has the discretion to refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction, and the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of the agency … . Here, the issues concern the particular meter used by Central Hudson, plaintiff’s removal and replacement of same, the safety concerns caused by his actions and the validity of the disconnection of his service. These matters fall under the doctrine and, thus, were appropriate for PSC determination. We also agree with Supreme Court’s assessment that the causes of action found in plaintiff’s complaint amount to little more than a rebranding of his PSC claim and were properly dismissed … .

… [W]e agree with Supreme Court’s determination that review of a PSC ruling is limited to a CPLR article 78 proceeding. “Supreme Court, in determining the motion for [summary judgment,] properly considered whether the . . . primary jurisdiction doctrine[] precluded the causes of action propounded by plaintiff[]” … , and that, in order to review the original ruling, it was incumbent upon plaintiff to bring an article 78 proceeding … . [Romine] v Laurito, 2020 NY Slip Op 04432, Third Dept 8-6-20

 

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POLICE OFFICER WAS JUSTIFIED IN FOLLOWING DEFENDANT’S CAR AFTER OBSERVING A TRAFFIC VIOLATION, DIRECTING THE OCCUPANTS OF THE CAR TO RETURN TO THE CAR AFTER IT PULLED INTO A RESIDENTIAL DRIVEWAY, AND DETAINING THE DEFENDANT AND CONDUCTING A SEARCH ON THE PROPERTY AFTER THE HOMEOWNER SAID HE DID NOT KNOW THE OCCUPANTS OF THE CAR (THIRD DEPT).

The Third Department determined the police officer acted properly in following the defendant’s car after observing a traffic violation, directing the occupants of the car to return to car after it pulled into a residential driveway, detaining the defendant when the homeowner said he did not know the defendant and the others, and arresting the defendant after a weapon was found after a search behind the house:

The officer observed a traffic infraction when the vehicle ran a stop sign …  and was accordingly justified in approaching the vehicle after he had caught up to it … . Defendant suggests that the traffic infraction was a pretext for making the approach, but that contention is unpreserved for our review … . As a result, although one might reasonably question why the officer, upon seeing a traffic violation of sufficient gravity to cause him to make a U-turn and follow the vehicle, did not put on his siren or emergency lights, and then approached the vehicle with more apparent interest in the passengers than the driver, the record was not developed on the possibility of an ulterior motive for the officer’s actions. It follows that the record affords no basis for defendant’s speculation as to the officer’s motivations. We are, in any event, bound by controlling precedent that those speculative motivations would not render an otherwise proper approach invalid … .

The officer had discretion to “control the scene in a way that maximize[d]” safety as the approach unfolded, could have directed defendant to exit the vehicle had he been in it and, in  … view of the heightened safety concerns stemming from defendant’s refusal to return to the vehicle and brief disappearance behind the house, was free to direct that defendant sit on the hood of the vehicle upon his return … . Shortly thereafter, the officer learned that the homeowner did not know anyone in the vehicle despite their claims and had watched defendant throw something away behind the house. The foregoing created a reasonable suspicion of criminal activity by defendant that warranted his detention, after which the handgun was recovered and afforded probable cause for his arrest … . People v Price, 2020 NY Slip Op 04430, Third Dept 8-6-20

 

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