Accidental Disability Retirement Benefits not available to employee suffering an injury while acting within the scope of his ordinary employment duties

The Appellate Division held the determination of the Board of Trustees of the Police Pension Fund [Respondent] denying Petitioner's application for Accidental Disability Retirement Benefits [ADR] was supported by credible evidence that Petitioner was injured when he slipped on ice cubes while getting into a police vehicle after responding to a 911 call. 

Citing Matter of Compagnone v DiNapoli, 2024 NY Slip Op 06235, the Appellate Division found that Respondent appropriately considered whether Petitioner was acting within the scope of his ordinary employment duties and whether the incident was an inherent risk of those regular duties, and opined that "It is an inherent risk of [Petitioner's] regular job duties to encounter debris on the sidewalk and roadway while responding to a 911 call.

Click HERE to access the Appellate Division's decision posted on the Internet.

Allegations of bullying and harassment of student by school administrators found to be without merit

In this appeal to New York State's Commissioner of Education Petitioner alleged that the “misguided approach taken by [the principal and vice principal] … created an adverse and unfair environment” for the student. 

The Commissioner found the school officials "appropriately responded to Petitioner’s allegations of bullying and harassment", noting "A [school] district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious".

The Commissioner's decision is set out below:

Appeal of L.P., on behalf of her child, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding student bullying.

Decision No. 18,552

(February 25, 2025)

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a decision of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent”) regarding a Dignity for All Students Act (“Dignity Act”) complaint concerning her child (the “student”).  The appeal must be dismissed. 

The student attended third grade in respondent’s district at the time of the events described herein.  Sometime in October 2023, a parent reported that petitioner’s child had been “unkind” to a classmate.  In response, the principal and vice principal directed the students to “take a break” from each other.  Petitioner asserts that, as a result thereof, the student was unnecessarily isolated from the classmate.  For example:

• On December 2, 2023, school staff moved the student to a different table in the cafeteria after she attempted to sit across from the classmate;
• On December 14, 2023, the classmate told the student that she could not be included in her friend group; and
• On January 26, 2024, during a lunch break, the classmate told the student that they could not be in the same room together.  

On January 29, 2024, petitioner filed a Dignity Act complaint alleging that the principal and vice principal engaged in bullying and harassment.  Petitioner claimed that the administrators harbored a “discriminatory … attitude towards” the student and that the “school’s approach to resolution of [this] inter-child relationship issue lack[ed] equality.”  Petitioner further stated that the “misguided approach taken by [the principal and vice principal] … created an adverse and unfair environment” for the student. 

By letter dated February 8, 2024, the principal informed petitioner that the district had investigated and found her allegations of bullying and harassment to be without merit.  This appeal ensued. 

Petitioner claims that the principal and vice principal improperly directed the student to avoid interacting with the classmate.  For relief, petitioner requests that the Commissioner order a third party to investigate and “confirm if this situation with [the student] was dealt with in a professional and sensitive [manner].”  Petitioner also requests an investigation to determine why respondent took “such a drastic approach” to managing interactions between the students.

Respondent maintains that petitioner failed to exhaust administrative remedies prior to commencing this appeal.  On the merits, respondent contends that it thoroughly investigated the matter and reached a conclusion supported by the evidence. 

First, I must address two procedural matters.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). Petitioner submitted a reply over two weeks late without explanation.  As such, I have not considered it in reaching my determination. 

Next, respondent argues that, under board policy 0115-R, petitioner was required to appeal to the superintendent before she could commence this appeal.  A board of education may adopt rules governing appeals of district decisions and may impose timelines in connection therewith (Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480).  Any such policy must be reasonable and clearly communicated to parents (Appeal of S.R. and T.J.R., 63 Ed Dept Rep, Decision No. 18,357).  Even assuming that policy 0115-R imposes a mandatory appeal requirement, it was not clearly communicated to petitioner.[1]  The principal’s February 8, 2024 letter states that petitioner “ha[d] the right to appeal this outcome determination … [i]f [she] wish[ed] … to the District Level Dignity Act Coordinator.”[2]  I do not find that this general language provided sufficient notice of a mandatory appeal requirement.  As such, I decline to dismiss the appeal for failure to exhaust administrative remedies (Appeal of S.L., 58 Ed Dept Rep, Decision No. 17,567; see generally Appeal of J.B.W., 62 id., Decision No. 18,205).

Turning to the merits, the Dignity Act prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).  Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....[3]

A district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

I find that respondent appropriately responded to petitioner’s allegations of bullying and harassment.  The record reflects that the investigator interviewed several witnesses, including ten students, a classroom teacher, a school psychologist, and two school employees.  These interviews, together with email correspondence with petitioner, formed the basis of the investigator’s report.  The interviews reveal that the student and classmate experienced conflict while attempting to navigate social interactions.  One factor that contributed to these conflicts is that, according to the school psychologist, one of the students is “very sensitive” and tends to “hang [] onto minor social conflicts that are pretty typical for the age and ... rehash them.” 

Based on this evidence, I find that respondent conducted a thorough investigation and reached a reasonable conclusion (see Appeal of A.V.A., 64 Ed Dept Rep, Decision No. 18,451; Appeal of D.B. and S.B., 63 id., Decision No. 18,348).  There is no evidence in the record that the principal or assistant principal “singl[ed] out” the student or created a hostile environment.  As respondent indicates, “[t]he witness interviews revealed that both [s]tudent[s] ... have made [each] other upset at times.”  As a result, petitioner has not proven that respondent’s Dignity Act determination was arbitrary or capricious.

To the extent petitioner seeks a third-party investigation concerning this matter, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.E.M., 58 Ed Dept Rep, Decision No. 17,580; Appeal of D.C., 57 id., Decision No. 17,223).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

[1] This policy indicates that a Dignity Act determination by a principal or assistant principal “may” be appealed to the superintendent.

[2] It appears that the superintendent is the district-level coordinator.

[3] The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11 [7] [d]).

In processing a Freedom of Information Law request custodian of the records may redact any personally identifiable information contained in those records

Under New York State's Freedom of Information Law all government records are presumed open for public inspection and copying unless they fall within a statutory exemption and the government agency electing to not to provide such material bears the burden of demonstrating that the material requested falls squarely within the ambit of one or more such exemptions.

Further, if certain requested records contain material which may be exempted pursuant to Public Officers Law §87(2)(a), (e) (i), or (f), the Appellate Division opined the appropriate remedy is disclosure of all nonexempt material, appropriately redacting the material which may be exempted consistent with law. 

The text of the Appellate Division's decision set out below:

Matter of Aron Law PLLC v Rochester City Sch. Dist.

2025 NY Slip Op 01519

Decided on March 14, 2025

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 14, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, NOWAK, AND KEANE, JJ.

665 CA 23-01893

[*1]IN THE MATTER OF ARON LAW PLLC, PETITIONER-APPELLANT-RESPONDENT,

v

ROCHESTER CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT-APPELLANT.

ARON LAW, PLLC, BROOKLYN (JOSEPH H. ARON OF COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (JEREMY M. SHER OF COUNSEL), FOR RESPONDENT-RESPONDENT-APPELLANT.

Appeal and cross-appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Sam L. Valleriani, J.), dated October 23, 2023, in a proceeding pursuant to CPLR article 78. The judgment granted in part and denied in part the petition and denied the motion of respondent to dismiss the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating the petition insofar as it seeks disclosure of communications, subject to redaction pursuant to particularized and specific justification under Public Officers Law § 87 (2) and granting the petition to that extent, and by reinstating the petition insofar as it seeks an award of attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and as modified the judgment is affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to disclose records pursuant to the Freedom of Information Law ([FOIL] Public Officers Law § 84 et seq.)—including video footage, police reports, and certain communications—concerning a shooting that took place at or near Franklin High School in the City of Rochester. Petitioner also sought an award of attorney's fees. Petitioner appeals and respondent cross-appeals from a judgment that granted the petition only to the extent that it sought to compel disclosure of the requested video footage and police reports, subject to redaction.

Under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2)" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225 [2018], rearg denied 31 NY3d 1125 [2018]). The exemptions are to be

" 'narrowly construed' " (Gould, 89 NY2d at 275; see Matter of Hawley v Village of Penn Yan, 35 AD3d 1270, 1271 [4th Dept 2006], amended on rearg 38 AD3d 1371 [4th Dept 2007]), and the government agency bears the burden of demonstrating that " 'the material requested falls squarely within the ambit of one of [the] . . . exemptions' " (Abdur-Rashid, 31 NY3d at 225; see Matter of National Lawyers Guild, Buffalo Ch. v Erie County Sheriff's Off., 196 AD3d 1195, 1196 [4th Dept 2021]). To invoke one of the exemptions, the government agency "must articulate 'particularized and specific justification' for not disclosing requested documents" (Gould, 89 NY2d at 275; see Matter of Nix v New York State Div. of Criminal Justice Servs., 167 AD3d 1524, 1525 [4th Dept 2018], lv denied 33 NY3d 908 [2019]).

Addressing first the cross-appeal, we reject respondent's contention that Supreme Court [*2]erred in granting the petition insofar as it sought to compel disclosure of the requested video footage and police reports, and we conclude that the court properly determined that redaction of certain portions of those materials may be appropriate. To the extent that the video footage constitutes an education record that is specifically exempted from disclosure by federal statute (see Public Officers Law § 87 [2] [a]), here the Federal Educational Rights and Privacy Act, respondent should redact any personally identifiable information contained in those records (see 20 USC § 1232g [b] [2]; 34 CFR 99.31 [b] [1]; Easton Area Sch. Dist. v Miller, 659 Pa 606, 627-632, 232 A3d 716, 728-731 [2020]; Matter of Jewish Press, Inc. v Kingsborough Community Coll., 201 AD3d 547, 549 [1st Dept 2022]) and submit the redacted records to the court to conduct an in camera comparison of the redacted and original records. Although respondent contends that the video footage and police reports are exempt from disclosure under Public Officers Law

§ 87 (2) (e) (i) and (f), we conclude that respondent's broad allegation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically deny petitioner all access to the requested material" (Matter of Konigsberg v Coughlin, 68 NY2d 245, 251 [1986]). Respondent may, however, submit the video footage and police reports to the court for an in camera comparison of the redacted records to the originals if it believes certain material is contained within them is exempt from disclosure under Public Officers Law § 87 (2) (e) (i) and (f). If respondent establishes that the requested records contain material exempt under Public Officers Law § 87 (2) (a), (e) (i), or (f), "the appropriate remedy is . . . 'disclosure of all nonexempt, appropriately redacted material' " (Matter of Pflaum v Grattan, 116 AD3d 1103, 1105 [3d Dept 2014], quoting Gould, 89 NY2d at 275).

We agree with petitioner on its appeal that the court erred in denying the petition insofar as it sought to compel respondent to provide petitioner with access to the requested communications, and we therefore modify the judgment accordingly. In response to petitioner's FOIL request, respondent failed to demonstrate that the requested material qualifies for an exemption inasmuch as it did not articulate a " 'particularized and specific justification' for not disclosing" the requested communications (Gould, 89 NY2d at 275). Respondent now asserts for the first time that the requested communications were not reasonably described. Our review of the administrative determination, however, is limited to the grounds invoked by the agency in denying the FOIL request (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74-75 [2017]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent therefore must provide the requested communications to petitioner "subject to any redactions or exemptions pursuant to a particularized and specific justification" for exempting any portion thereof (Matter of New York Civ. Liberties Union v City of Syracuse, 210 AD3d 1401, 1407 [4th Dept 2022]).

In light of our determination, we agree with petitioner that the court erred in denying that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c), and we therefore further modify the judgment by reinstating the petition to that extent. Nevertheless, we further conclude that petitioner's contention that the court erred in failing to grant that part of the petition seeking attorney's fees and costs pursuant to Public Officers Law § 89 (4) (c) is premature (see Matter of Lane v Port Wash. Police Dist., 221 AD3d 698, 708 [2d Dept 2023]; see also Matter of Forsyth v City of Rochester [appeal No. 1], 185 AD3d 1499, 1500-1501 [4th Dept 2020]).

Entered: March 14, 2025

Ann Dillon Flynn

Clerk of the Court

Divesting a public retirement plan of fossil-fuel based investments in order to allocate more to "green" investments, is speculative and "insufficient to trigger judicial intervention"

Recipients of a defined benefit to be provided by a New York State public retirement plan were entitled to receive a "fixed payment each month" that did "not fluctuate with the value of the plan or because of the plan fiduciaries' good or bad investment decisions". 

Plaintiffs in this action contended the Retirement Systems breached its fiduciary duties as plan trustees by divesting the plan of fossil-fuel based investments in order to allocate more to "green" investments.

Under New York law, a plaintiff must demonstrate that they suffered an "injury in fact" in order prevail. The Appellate Division found that documentary evidence and the absence of any support for the allegation that the plans might be unable to cover their obligations to retirees, or that the City will be unable to cover any shortfall, plaintiffs' arguments are speculative.

  

The Appellate Division's decision, indicating the Plaintiffs' arguments in the instant matter were "speculative and insufficient to trigger judicial intervention" dismissed th Plaintiffs' cause of action.

The Appellate Division's decision is set out below:

 

Wong v New York City Empls.' Retirement Sys.

2025 NY Slip Op 01332

Decided on March 11, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 11, 2025
Before: Webber, J.P., Kapnick, González, Scarpulla, Michael, JJ.

Index No. 652297/23|Appeal No. 3864, M-596|Case No. 2024-05062|

[*1]Wayne Wong, et al., Plaintiffs-Appellants,

v

New York City Employees' Retirement System, et al., Defendants-Respondents. Empire Center for Public Policy, Inc., and Government Justice Center, Inc., Amici Curiae.

Gibson, Dunn & Crutcher LLP, New York (Akiva Shapiro of counsel), for appellants.

Muriel Goode-Trufant, Corporation Counsel, New York (Elina Druker of counsel), for respondents.

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for Amici Curiae.

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about July 3, 2024, which granted the motion of defendants the New York City Employees' Retirement System, Teachers' Retirement System of the City of New York, and Board of Education Retirement System of the City of New York to dismiss the complaint, unanimously affirmed, without costs.

On this pre-answer motion to dismiss, plaintiffs have failed to establish standing (see Deutsche Bank Natl. Trust Co. v Umeh, 145 AD3d 497, 497 [1st Dept 2016]), because as recipients of a defined benefit retirement plan, plaintiffs were entitled to receive a "fixed payment each month" that did "not fluctuate with the value of the plan or because of the plan fiduciaries' good or bad investment decisions" (Thole v U.S. Bank N.A., 590 US 538, 540 [2020]). Moreover, absent an injury, there was "little to be gained from an abstract challenge to alleged fiduciary misconduct at the cost of the plan and those participants who did not bring (and may not approve of) the suit" (David v Alphin, 704 F3d 327, 336 [4th Cir 2013]). Although this Court is "not bound to adhere to federal standing requirements" (US Bank N.A. v Nelson, 36 NY3d 998, 1003 n 4 [2020] [Wilson, J., concurring]), under New York law, plaintiffs must nevertheless demonstrate that they suffered an "injury in fact" (Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50 [2019] [internal quotation marks omitted]). Plaintiffs' reliance on the common law of trusts is unavailing, as defined benefit plans are "more in the nature of a contract," whereby the benefits under such plans "are fixed and will not change, regardless of how well or poorly the plan is managed. The benefits paid to the participants in a defined-benefit plan are not tied to the value of the plan" (Thole, 590 US at 542-543).

The crux of plaintiffs' claim, that defendants breached their fiduciary duties as plan trustees by divesting the plan of fossil-fuel based investments in order to allocate more to "green" investments, is speculative and "insufficient to trigger judicial intervention" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214 [2004] [internal quotation marks omitted]; see Matter of Bolofsky v City of N.Y., 205 AD3d 515, 516 [1st Dept 2022] [finding no standing to bring claims where risk of "harm is entirely conjectural"]). Discretion to make investment decisions for public retirement systems is vested in politically accountable trustees, and their exercise of that authority cannot be encroached upon by the Legislature or the courts (see Sgaglione v Levitt, 37 NY2d 507, 512-513 [1975]). Here, particularly based on the documentary evidence and the absence of any support for the allegation that the plans might be unable to cover their obligations to retirees, or that the City will be unable to cover any shortfall, plaintiffs' arguments are speculative.

We have considered plaintiffs' remaining contentions and find them unavailing.

M-596[*2]— Wong et al. v New York City Employees' Retirement Sys. et al.

Motion for leave to file an amicus brief, granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 11, 2025

 

Legal victory in U.S. District Court

New York State's Attorney General Letitia James and other state attorney generals won a significant legal victory as a U.S. District Court ordered the Trump administration to reinstate thousands of probationary federal employees who were terminated. The ruling directs such reinstatement by March 17, 2025. More HERE.