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ON APPEAL, THE ATTORNEY FOR THE CHILD DID NOT FULFILL HIS OBLIGATION TO CONSULT WITH THE CHILDREN TO DETERMINE THEIR WISHES OR TO ADEQUATELY EXPLAIN WHY CONSULTATION WAS NOT POSSIBLE; HE WAS RELIEVED OF HIS ASSIGNMENT (THIRD DEPT).

The Third Department, relieving the attorney for the child (AFC) of responsibility for the appeal, determined the AFC did not fulfill his responsibilities under the Rules of the Chief Judge (22 NYCRR 7.2):

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide that, “[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” … . The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child’s wishes — specifically, when he or she “is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . …

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children’s best interests rather than for their wishes was their ages. However, it was the AFC’s obligation to “consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities” … . At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities … . … Here, the AFC’s brief is devoid of any indication of the children’s wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child’s wishes … . …

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal … . Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Third Dept 4-2-20

 

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WHETHER THE SCHOOL PRINCIPAL RECEIVED COMPETENT REPRESENTATION AT HER DISCIPLINARY PROCEEDINGS BEFORE THE NYC DEPARTMENT OF EDUCATION WAS RELEVANT TO HER DECERTIFICATION PROCEEDINGS BEFORE THE NYS DEPARTMENT OF EDUCATION; THEREFORE THE MOTION TO QUASH THE SUBPOENA SEEKING THE ATTORNEY’S TESTIMONY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the motion to quash a subpoena seeking an attorney’s (Guerra’s) testimony in a teacher decertification proceeding should not have been granted. The attorney was seeking employment with the NYC Department of Education (NYCDOE) at the time she was representing the respondent school principal (Klingsberg) in disciplinary proceedings brought by the NYCDOE. The issue of whether respondent received competent representation in the disciplinary proceedings was relevant to whether those proceedings should be given collateral estoppel effect in the New York State Department of Education (SED) teacher decertification proceedings:

“[A] subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” … . The party moving to quash bears “the burden of establishing that the subpoena should be [quashed] under such circumstances” … . * * *

… [W]hether Klingsberg was competently represented at that prior proceeding so as to warrant giving preclusive effect to its factual findings is very much in issue in this decertification proceeding and, given that Guerra has firsthand knowledge regarding her representation of Klingsberg at that prior proceeding, it cannot be said that “the information sought [from Guerra] is utterly irrelevant” to the decertification inquiry … . Rather, Guerra’s testimony is highly relevant to whether collateral estoppel will be applied in the pending decertification proceeding. For this reason, petitioners have not satisfied their burden of proof on their motion to quash the subpoena … . Matter of Board of Educ. of the City Sch. Dist. of the City of N.Y. v New York State Dept. of Educ., 2020 NY Slip Op 02140, Third Dept 4-2-20

 

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THE TORTIOUS INTERFERENCE WITH CONTRACT AND DEFAMATION CAUSES OF ACTION WERE NOT REFUTED BY DOCUMENTARY EVIDENCE AND WERE ADEQUATELY PLED (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff had stated causes of action for tortious interference with contract and defamation and the actions should not have been dismissed on either the “documentary evidence” or “failure to state a cause of action” ground:

Turning first to CPLR 3211 (a) (1), a motion to dismiss pursuant to this provision “will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” … . What may be deemed “documentary evidence” for purposes of this subsection is quite limited. “Materials that clearly qualify as documentary evidence include documents . . . such as mortgages, deed[s], contracts, and any other papers, the contents of which are essentially undeniable” … . Here, Supreme Court relied upon the statements taken during defendant’s investigation, as well as its non-harassment policy. As plaintiff argues, even sworn affidavits have been held inadequate to meet this statutory standard, and defendant’s submissions here do not qualify as documentary evidence … . …

The grounds for dismissal under CPLR 3211 (a) (7) are also strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits … . …

To establish a claim for tortious interference with a contract, the plaintiff must allege “the existence of [his or her] valid contract with a third party, [the] defendant’s knowledge of that contract, [the] defendant’s intentional and improper procuring of a breach, and damages” … . Here, plaintiff’s complaint alleged that a valid contract existed between plaintiff and the distributor, that defendant intentionally spread “false, specious and salacious accusations against [p]laintiff,” and that such conduct “had no good faith or justifiable cause” and did not “protect an economic interest.” Liberally construing these allegations, as we must, taking all of the alleged facts as true, and giving plaintiff every favorable inference … , they do not fail to state a claim.

The defamation claim will ultimately require “proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se'” … . Here, the complaint sets forth the particular words complained of and the damages plaintiff allegedly sustained … . Carr v Wegmans Food Mkts., Inc., 2020 NY Slip Op 02141, Third Dept 4-2-20

 

CLAIMANT ADEQUATELY IDENTIFIED THE RULING OBJECTED TO IN HER APPLICATION FOR BOARD REVIEW; HER APPLICATION SHOULD NOT HAVE BEEN REJECTED ON THAT GROUND (THIRD DEPT).

The Third Department, reversing the Worker’s Compensation Board, determined claimant’s application for Board review should not have been rejected based upon claimant’s answer to question 15 which asks for the the specific ruling objected to:

Claimant filed her application for Board review … and question number 15 on the form RB-89 application and the accompanying instructions directed her to “[s]pecify the objection or exception interposed to the [WCLJ’s] ruling and when it was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . Claimant responded by stating that “an exception was noted at the hearing on [January 11, 2018],” that the WCLJ had noted that exception in his decision and that the “objection [was] continued by way of” the application for Board review. The Board found that this response was deficient because it failed to identify the exception. This finding overlooked the information already provided in the application for Board review, however, as claimant made clear in her responses to question numbers 11 and 12 that the challenged ruling was the finding of “no compensable disability” from May 10, 2017 to November 27, 2017 and that the issue was whether the WCLJ had erred in crediting certain medical testimony to make that ruling. Claimant identified the ruling at issue in those responses and, by citing the “exception” continued in her “application for review,” her response to question number 15 unambiguously referred to the ruling named in her prior responses so as to provide the information required by 12 NYCRR 300.13 (b) (2) (ii) and demanded by the form instructions … . Matter of Narine v Montefiore Med. Ctr., 2020 NY Slip Op 02142, Third Dept 4-2-20

 

PLAINTIFF WAS ENGAGED IN REPAIR NOT MAINTENANCE AND THE LADDER DID NOT PROVIDE ADEQUATE PROTECTION FROM A FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s (Markou’s) motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was troubleshooting a problem with lighting when his ladder slid sideways. He jumped off the ladder and landed on his feet to avoid hitting his head on the ground. The plaintiff made out a prima facie case that he was engaged in a protected activity (repair rather than routine maintenance) and the ladder did not provide adequate protection:

… [W]e find that plaintiffs established that Markou was engaged in a protected activity under Labor Law § 240 (1), in that he was attempting to repair the overhead lighting system in the cold storage area of defendant’s premises … . …  Notwithstanding Supreme Court’s denial of plaintiffs’ motion, the court correctly concluded that plaintiffs, through the deposition testimony and sworn affidavit of their expert, sustained their prima facie burden of showing that the ladder was not “so constructed, placed and operated as to give proper protection” to Markou (Labor Law § 240 [1]), causing him to fall and sustain injuries. Markou v Sano-Rubin Constr. Co., Inc., 2020 NY Slip Op 02144, Third Dept 4-2-20

 

THE BOARD HAS THE AUTHORITY TO CHOOSE BETWEEN TWO CONFLICTING MEDICAL OPINIONS, HERE DEALING WITH WEANING CLAIMANT FROM OPIOID PAIN KILLERS (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board has the authority to chose between two conflicting medical opinions. Here claimant had significant pain was was taking high doses of opioids. The independent medical examiner (IME) had one opinion about how the claimant should be weaned from the opioids and claimant’s own physician had a different opinion. The Board sided with the IME:

Although claimant’s physician and the IME gave differing opinions regarding the advisability of weaning claimant from his opiate medications, as well as the manner in which it should be accomplished, the Board is vested with the authority to resolve conflicting medical opinions … . Thus, the Board could choose to credit the opinion of the IME, which was in accordance with the applicable guidelines, over that of claimant’s treating physician. Therefore, inasmuch as substantial evidence supports the Board’s decision, we find no reason to disturb it … . Matter of Forte v Muccini, 2020 NY Slip Op 01881, Third Dept 3-16-20

 

SPECULATIVE MEDICAL OPINION DID NOT SUPPORT FINDING CLAIMANT’S PRIOR EMPLOYER LIABLE FOR ASBESTOS-RELATED MESOTHELIOMA, DESPITE EVIDENCE OF EXPOSURE AT THE PRIOR EMPLOYER (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly found that claimant’s mesothelioma was due to asbestos exposure at Kodak, even though claimant was exposed to asbestos in his prior employment at International Paper. Kodak unsuccessfully sought apportionment of the liability with International Paper. Claimant’s employment at International Paper ended in 1967 and claimant worked at Kodak from 1967 to 1985. He was diagnosed in 2013:

… Workers’ Compensation Law § 44 states that, when a worker’s disability due to an occupational disease is established and benefits are awarded, “[t]he total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease . . . was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation . . . may appeal to the [B]oard for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due” … . “Importantly, liability under this provision is premised upon employment at the time of or following the contraction of the compensable occupational disease, not upon the disablement that ensues” …  The determination of when an employee contracted the disease, which refers to “when the disease process begins, as evidenced by symptoms, diagnosis or other medical evidence that shows [that the] disease process must have existed” … , is a question of fact to be determined by the Board, which will be upheld if supported by substantial evidence … . * * *

While the Board recognized that there may be a delay of up to 50 years between exposure to asbestos and a mesothelioma diagnosis, it correctly found that the medical opinions that decedent’s prior employment contributed to his condition were speculative and insufficient … . Matter of Gimber v Eastman Kodak Co., 2020 NY Slip Op 01875, Third Dept 3-16-20

 

CLAIMANT WAS WRONGFULLY TERMINATED AFTER TELLING HIS BOSS HE WAS GOING TO FILE A WORKERS’ COMPENSATION CLAIM, A VIOLATION OF WORKERS’ COMPENSATION LAW SECTION 120 (THIRD DEPT).

The Third Department determined claimant was terminated because he told the executive manager he would be filing a workers’ compensation claim and taking time off after a slip and fall injury, a violation of Workers’ Compensation Law section 120:

“Workers’ Compensation Law § 120 prohibits an employer from discriminating against an employee who has filed or who has attempted to file a claim for workers’ compensation benefits by discharging him or her” … . In enacting this statute, “the Legislature intended ‘to insure that a claimant [could] exercise his [or her] rights under the [Workers’] Compensation Law . . . without fear that doing so [might] endanger the continuity of [his or her] employment'” … . “The burden of proving a retaliatory discharge in violation of the statute lies with the claimant, who must demonstrate a causal nexus between the claimant’s activities in obtaining compensation and the employer’s conduct against him or her” … . With regard to “questions of fact and factual inferences to be drawn therefrom, . . . a decision of the [B]oard is conclusive upon the courts if supported by substantial evidence” … . Matter of Markey v Autosaver Ford, 2020 NY Slip Op 01876, Third Dept 3-16-20

 

SECURITIES TRADER IS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a securities trader who worked for Quad Capital, LLC, was an employee entitled to unemployment benefits:

The record establishes that claimant submitted a resume and was interviewed by a managing partner at Quad Capital. After certain criteria, such as a trading license, fingerprints and background check were completed, claimant entered into an Ordinary Member Agreement and was given a trader handbook. The record also establishes that, despite being designated by the contract as a member of the limited liability company, claimant did not make a monetary investment in the company, was paid based upon the net profit only from his portfolio, did not have any managerial duties, did not make any financial or managerial decisions and was not liable for any losses from the company — unlike managing members of Quad Capital. Further, claimant had regularly-scheduled work hours in Quad Capital’s office and was required to notify his manager if he would be absent. Claimant was expected to attend morning meetings, his work was regularly reviewed and monitored by a manger and he was subject to a dress code for which a fine would be imposed if violated. Matter of Giampa (Quad Capital, LLC–Commissioner of Labor), 2020 NY Slip Op 01877, Third Dept 3-16-20

 

THE CARRIER’S FAILURE TO INDICATE WHEN IT OBJECTED TO THE RULING OF THE WORKERS’ COMPENSATION LAW JUDGE JUSTIFIED THE DENIAL OF THE CARRIER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board did not abuse its discretion when it denied the carrier’s application for review because question 15 on the application form did not indicate when the relevant objection to the Workers’ Compensation Law Judge (WCLJ) was made:

When the carrier filed its application for Board review … , question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii).” In response to question number 15, the carrier stated, “Please note the carrier’s objection to not finding a transfer of liability to the Special Funds Conservation Committee pursuant to [Workers’ Compensation Law §] 25-a.” The Board found that the carrier’s response was incomplete because there were “several hearings [that] had taken place prior to the hearing [on] July 3, 2018,” and the carrier’s response to question number 15 did “not include the date of the hearing at which the exception to the WCLJ’s ruling was interposed, as required.” Both the regulation itself and the instructions in effect at the time that the carrier filed its application for Board review unambiguously required the carrier to “specify the objection or exception that was interposed to the [WCLJ’s] ruling, and when the objection or exception was interposed” … . As such, a complete response to question number 15 required the carrier to specify the nature of its objections or exceptions and indicate when such objections or exceptions were interposed. Although the carrier satisfied the first prong of the regulation by articulating specific objections to the WCLJ’s rulings, it failed to satisfy the temporal element of the regulation by indicating when such objections were made. Accordingly, under the circumstances presented here, in which the carrier failed to provide the requisite temporal element in its response to question number 15, we find that the Board did not abuse its discretion in denying the carrier’s application for Board review … . Matter of Barrera v Corinthian Cast Stone, Inc., 2020 NY Slip Op 01880, Third Dept 3-16-20

Similar issue and result in Matter of Currie v Rist Transp. Ltd., 2020 NY Slip Op 01874, Third Dept 3-16-20

Similar issue and result in Matter of Perry v All Am. Sch. Bus Corp., 2020 NY Slip Op 01869, Third Dept 3-16-20

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