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Tuesday, September 01, 2015

Proper and timely service of an action critical to going forward with the lawsuit

Proper and timely service of an action critical to going forward with the lawsuit
Angletti v Morreale, 2015 NY Slip Op 06647, Court of Appeals

Marcus Morreale initially declined to be designated as a candidate for the County Legislature, Niagara County, thereby creating a vacancy. Subsequently Morreale consented to be designated as the substitute candidate to fill the vacancy created by his own declination of the earlier designation and the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the candidate for the office.

Frances J. Angletti filed a formal objection to Morreale’s nomination with the County Board of Elections but his objection was rejected by the Board.

The Court of Appeal’s decision notes that Angletti next commenced a proceeding in Supreme Court seeking to invalidate the Morreale “designating petition” and to enjoin the Board from placing Morreale's name on the ballot. Supreme Court signed an order to show cause dated the same day, July 22, 2015, authorizing service on Morreale by one of ten methods permitted.

Angletti utilized "nail and mail" service under the order to show cause, was required to affix the papers to the door of Morreale's residence "AND [enclose] the same in a securely sealed and duly prepaid wrapper addressed to [Morreale] at the address set forth in his . . . designating petition, and depositing the same with a depository of the United States Postal Service via Express Mail on or before the 23rd day of July, 2015."

Morreale answer to Angletti’s action raising several affirmative defenses, including the representation that Angletti’s action was not timely commenced.**

Supreme Court granted Angletti’s petition and ordered the Board to strike Morreale's name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced. However, the Court of Appeals, for reasons explained in its decision, elected to address with specificity only the issue upon which the dissent in the Appellate Division was grounded,*** inasmuch as it held that Morreale's other arguments were “without merit.”

The court explained that under Election Law §16-116, a petitioner is required to provide notice "as the court or justice shall direct," and "this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced."

Agreeing with the courts below that this proceeding was properly commenced in a timely manner, the Court of Appeals said that here “there is no dispute that [Angletti] complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23.”

Although Morreale argued that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period, the court disagreed, noting that “where the instrument of notice has been delivered by another prescribed method within the statutory period,” it has rejected such contentions concerning mailing, citing Serri v Heffernan , 298 NY 629.

As to “nailing” the papers, the Court of Appeals said that a decision that Morreale cited involving “nail and mail,” the papers [1] “were nailed to the outside wall of the residence instead of the door” and [2] the attempted service by mail on the final day "was inadequate and ineffectual to institute the proceeding."

In contrast, the Court of Appeals found that in Angletti’s situation, the instrument of notice had been properly nailed to Morreale’s door and delivered prior to the deadline.

Thus, said the court, the order of the Appellate Division should be affirmed.

* Nail and mail service requires the posting of the action on the door of the person's home and mailing a copy of the papers to the appropriate mailing address.

** July 23, 2015 was the last day to commence the proceeding under the 14-day period authorized by Election Law (see Election Law §16-102 [2]).

*** Two Appellate Division Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period.

The decision is posted on the Internet at:

The five most read NYPPL cases summaries as of August 31, 2015

The five most read NYPPL cases summaries as of August 31, 2015
[Click on text highlighted in color to access the post] 

More than 4,000 case summaries have been posted on NYPPL as of August 31, 2015. Google Statistics reports that of NYPPL’s 1,036,548pageviews for all time,” the following were the five case summaries most frequently accessed.

The legal distinction between domicile and residence

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

Settlement agreements 

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Monday, August 31, 2015

Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education

Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education
Endrew F. V Douglas County School District RE-1, USCA, 10th Circuit, Docket #14-1417

Federal law requires public schools to provide students with disabilities a free and appropriate education. If a school cannot meet the educational needs of a disabled student, the student’s parents can place the child in private school and seek reimbursement of tuition and related expenses.

Parents of an autistic child, believing that the child’s educational progress at the  Douglas County [Colorado] School District [District], was not meeting his needs, withdrew the student from the District and placed him with another facility, Firefly Autism House, a private school that specializes in educating autistic children. The parents then asked the District to reimburse them for tuition and related expenses in accordance with federal law.

The District denied their request and a hearing was held before an administrative law judge [ALJ].  The ALJ found that the parents were aware of their child’s progress and fully participated in his education and upheld the District’s decision denying reimbursement.

A federal district court subsequently sustained the administrative ruling, which decision was affirmed the Tenth Circuit Court of Appeals.

The circuit court explained that the record showed that the administrative law judge found that the student received some educational benefit while in the District’s care and that such a finding was “enough to satisfy the District’s obligation to provide a free appropriate public education” under federal law. In the words of the circuit court, “the District did not violate the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA), and is not required to reimburse the cost of the student’s private-school education.” Citing Florence Cty., 510 U.S. at 15, the circuit court noted that “Parents who take unilateral action, however, ‘do so at their own financial risk.’”

The decision is posted on the Internet at:

Saturday, August 29, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015
Click on text highlighted in color to access the complete report

Public Financing of Elections urged by State Comptroller

New York State Comptroller Thomas P. DiNapoli’s op-ed, “New York Should Opt into Public Financing of Elections” was published in The Albany Times Union, urging the state Legislature to pass comprehensive campaign finance reform in New York, including public funding of elections for all state offices.

July 2015 State’s Cash Report issued by State Comptroller

Tax revenues through the first four months of the state’s fiscal year came in $17.7 million lower than the Division of the Budget’s latest projections but more than $1 billion higher than originally forecasted, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli. The General Fund balance remains high compared to historical levels, with $9.6 billion at the end of July, $25.2 million higher than the latest projections.

State Contract report for the month of July 2015

State Comptroller Thomas P. DiNapoli announced his office approved 1,693 contracts valued at $1.1 billion and approved more than 1.8 million payments worth approximately $8 billion in July. His office also rejected 204 contracts and related transactions valued at $356 million and nearly 2,000 payments valued at approximately $3 million due to fraud, waste or other improprieties.

Friday, August 28, 2015

Employee disciplined for failure to follow employer's policy

Employee disciplined for failure to follow employer's policy
OATH Index No. 1051/15

An ultrasound technologist was charged with failing to properly identify a patient and performing an ultrasound test on the wrong on the patient.

OATH Administrative Law Judge Kevin F. Casey sustained the charges. Evidence showed that the technician did not follow hospital policy for identifying patients, which requires using two methods to verify a patient's identity, and as a result performed an ultrasound on the wrong patient.

The technician realized his mistake after the examination had been completed and reported it to his supervisor.

That no one was injured and the mistake was immediately reported was outweighed by the technician's record of poor performance.

The ALJ concluded that a hospital does not have to wait for a patient to be injured before taking disciplinary action and recommended the termination of the employee.  

The decision is posted on the Internet at:


The Discipline Book -- A 448 page e-book focusing on disciplinary actions involving State, municipal and school district officers and employees. 
For more information click on

Thursday, August 27, 2015

Advisory arbitration

Advisory arbitration
Hannon v Westbury Union Free Sch. Dist. Bd. of Educ., 2015 NY Slip Op 06668, Appellate Division, Second Department

“Advisory Arbitration” is typically viewed as a form of arbitration in which the decision of the arbitrator is in the nature of recommendations or advice and not binding on the parties.

As the Hannon decision demonstrates, although the opinion of the arbitrator in advisory arbitration is not binding on the parties, the parties may have obligated themselves “to consider the arbitrator’s opinion” in the course of the “decision making process” where the collective bargaining agreement [CBO] so requires and the failure to do so would constitute a “contract violation” of the CBO.

The Westbury Union Free School District Board of Education [Westbury] terminated Kevin Hannon from his position following an advisory arbitration proceeding in which the arbitrator considered Hannon's grievance. Hannon sued, contending Westbury violated the CBO in determining the disposition of his grievance. Supreme Court, Nassau County, agreed and granted Hannon’s Article 78 petition. The court directed Westbury to reinstate Hannon to his former position with back pay.  Westbury appealed the Supreme Court’s ruling.*

The Appellate Division sustained the lower court’s decision, explaining that Westbury’s determination to reject the advisory arbitration award was arbitrary and capricious as the relevant CBO between Westbury and the United Public Service Employees Union required the parties "to consider the opinion" of the arbitrator "in determining the final disposition of the grievance under review."

Citing Plainedge Federation. of Teachers v Plainedge Union Free School District, 58 NY2d 902,  the Appellate Division said that as there was no evidence in the record demonstrating that Westbury had, in fact, consider the opinion of the arbitrator when it made its decision to terminate Hannon’s employment, it was “in violation of the plain terms of the collective bargaining agreement.”

* Supreme Court had also awarded a second petitioner, Carlos Brugueras, back pay from the date that he was laid off from his position until his discharge from employment by Westbury.

The decision is posted on the Internet at:

Wednesday, August 26, 2015

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

On July 8, 2015 Governor Cuomo issued Executive Order No. 8-147 appointing the New York State Attorney General as a Special Prosecutor in matters relating to the deaths of unarmed civilians caused by law enforcement officers. The order also allows the Special Prosecutor to review cases where there is a question whether the civilian was armed and dangerous at the time of his or her death.

At the request of Attorney General Eric T. Schneiderman, Governor Andrew Cuomo has amended his Executive Order #8-147, dated July 8, 2015, to include an additional paragraph as the EO 8-147’s penultimate paragraph, to read as follows:

“FURTHER, the requirement imposed on the Special Prosecutor by this Executive Order shall include the investigation, and if warranted, prosecution:

“(a) of any and all unlawful acts or omissions or alleged unlawful acts or omissions by any law enforcement officer, as listed in subdivision 34 of §1.20 of the Criminal Procedure Law, arising out of, relating to or in any way connected with the death of Raynette Turner on July 27, 2015 while in the custody of the Mount Vernon Police Department.”

The text of the July 8, 2015 order is posted on the Internet at: 

Tuesday, August 25, 2015

Free Speech Consequentialism – regulating harmful kinds of speech

Free Speech Consequentialism – regulating harmful kinds of speech
Source: the Adjunct LawProfs Law Blog [Posted by Judge Craig Estlinbaum, 130th Dist. Ct., Texas]

Erica Goldberg, Esq. (Harvard: Climenko Fellow) has posted "Free Speech Consequentialism” on Social Science Research Network.  The abstract reads:

Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.

Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review and is currently posted on the internet at:

Monday, August 24, 2015

New York State’s Student Internship Program application deadline on Tuesday, September 8th, 2015

New York State’s Student Internship Program application deadline on Tuesday, September 8th, 2015
New York State Department of Civil Service

The New York State Department of Civil Service today announced that New York State has hundreds of internships available, and reminded college students to apply for fall semester opportunities before the application deadline on Tuesday, September 8th, 2015.

“The internship program continues to connect a new generation of young leaders seeking opportunities and experience in State government,” said Governor Andrew M. Cuomo. “Internships provide valuable opportunities for students to enhance their academic education with hands-on work experience.”

The website is one component of Governor Andrew M. Cuomo’s New New York Leaders initiative, which attracts new talent to state government through both a fellowship program and an internship program. The internship website allows applicants to view job descriptions, create profiles, specify interests, and upload resumes, writing samples and letters of recommendation. Students can apply for multiple internships at the same time.

New York State continues to offer students diverse opportunities for professional development,” said Civil Service Executive Deputy Commissioner Lola Brabham.  “The Governor’s internship program offers a host of opportunities in fields like finance, engineering, public relations, information technology and health care. These opportunities can significantly enhance students’ resumes once they begin seeking career employment.”

The internship program is open to resident graduate and undergraduate students as well as students who attend schools in other states, but reside in New York.

To apply, visit .

This "one-stop internship opportunity website" allows students to view and apply for internships across an array of state departments and agencies, both downstate and upstate. Opportunities include both paid and unpaid positions.  Internships may include academic credit, depending on the policy of the educational institution.

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy
Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 2015 NY Slip Op 06564, Appellate Division, First Department

A bus driver's employment was terminated by the Manhattan and Bronx Surface Transit Operating Authority (Authority) for alleged sexual harassment of a bus dispatcher. Although the bus operator did not contest the charges or the penalty, the Transport Workers Union of America, Local 100 [Union] challenged the Authority's power to impose the disciplinary penalty of termination against an employee who had been put on union-paid release time prior to the Authority imposing the disciplinary penalty. An arbitrator ruled that the Authority violated the CBA by seeking to impose discipline upon the employee while he was on approved union-paid release and Supreme Court granted the Union's Article 75 petition seeking to confirm the arbitration award.

The Authority appealed and the Appellate Division said that it had to resolve was whether it was a violation of public policy for the arbitrator to interpret the CBA's approved union-paid release time as a shield for an employee to prevent the Authority from fulfilling its obligation to prevent and sanction sexual harassment in the workplace.

The collective bargaining agreement [CBA] between the Authority and the Union provided for a multiple steps that culminate in final and binding arbitration. The Authority filed disciplinary charges against the employee alleging that he engaged in sexual harassment against the dispatcher and created a hostile work environment but the accused employee did not appear at the Step I Disciplinary Grievance Hearing. Indeed, said the court, the individual “never appeared [at any Step I hearing] because the Union disputed the Transit Authority's power to maintain a disciplinary grievance against an employee who was placed on union-paid release time.”  The Transit Authority found the employee guilty* and imposed the penalty of dismissal effective.

The Transit Authority denied the Union's appeal of the Step I disciplinary determination and the Union filed a Contract Interpretation Grievance, contending that the Authority could not discipline an employee who is on union-paid release time, arguing that the placement of the individual on union-paid release time created a "safe haven" for employee.  The Contract Arbitrator found that the Authority had "violated the [CBA] by seeking to impose discipline on [the employee] while he was on approved Union paid release time."

While the Union argued that, “under black-letter arbitration law,” the award should be enforced, because the "grievance arbitration provision was in the contract, the parties agreed to arbitrate the issues, and the arbitrator interpreted the contract and based his decision on actual provisions of the contract," the Authority contended by "preventing [it] from taking prompt action to address sexual harassment in the workplace," the award violated public policy and was subject to vacatur.

Noting that the Authority “has a very heavy burden” in this case, the Appellate Division said that both the Authority and the Union had bargained for the arbitrator's construction of the CBA, and they have granted him the authority to interpret the meaning of its language, including the interplay between the Contract Interpretation Grievance and Disciplinary Grievance provisions. As a result, said the court, in considering the issue before it must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.”

The Appellate Division pointed out that the scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow, and courts will only intervene in "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," citing New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL—CIO, 99 NY2d 1. Thus, said the court, under this analysis a court must focus on the result only and can vacate the award if [1] it intrudes into areas reserved for others to resolve or [2] if, because of its reach, the award violates an explicit law of this State.

The Appellate Division then cited Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774 as an example of the application of the first test. Cohoes involved a dispute between a teachers' union and a local school board concerning whether a board could cede to arbitration its power to determine a teacher's tenure after a probationary period. The Court of Appeals held that public policy precludes delegation of that issue, finding it "inescapably implicit" in the applicable statutes “that the issue be withheld from the arbitral process, whatever applicability arbitration may have for the realm in general.”

Similarly, said the court, some cases have qualified for judicial intervention under the second prong of the public policy exception citing City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, as an example. In Fire Officers the City’s Department of Investigations [DOI] was conducting an investigation into possible line of duty injury fraud within the Fire Department. The Court of Appeals deemed this to be a criminal investigation and thus the “expansive remedy sought by the UFOA, asking the arbitrator to order the DOI to conduct future criminal investigations only in accordance with the contract rules, would "impinge on DOI's ability to conduct a criminal investigation."

The Appellate Division said that this case “does not qualify for judicial intervention under the first prong of the public policy exception” noting that the parties conceded that these disciplinary and contract interpretation grievance proceedings were the proper subject of arbitration.

However, the court said it found it necessary to intervene under the second prong of the public policy exception because “the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy, explaining that the “public policy against sexual harassment in the workplace is well recognized,” citing Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of sex (42 USC §2000e-2[a][1]) and harassment on the basis of sex is a violation of §703 of Title VII. Further, explained the Appellate Division, Title VII places upon an employer the responsibility to maintain a workplace environment free of sexual harassment.

In this disciplinary action the bus driver was accused by his coworker, a bus dispatcher, of serious harassment charges that "created an uncomfortable and hostile work environment for [the dispatcher] and other female employees . . . [and] adversely affected their ability to perform their jobs by making frequent unwelcome, and/or inappropriate comments of a sexual nature to them." These allegations, which the Transit Authority considered serious enough to require the bus driver’s termination, have gone unchallenged.

Rather than the bus driver appearing at the Disciplinary Grievance Hearing to confront his accuser and to refute the allegations, the Union appealed the disciplinary determination through the Contract Interpretation Grievance process which ultimately resulted in the arbitrator agreeing with the Union that the Transit Authority violated the CBA by seeking to impose discipline on the bus driver while he was on approved Union paid release time at the time the termination was imposed.

The Appellate Division said that it could not “turn a blind eye” to the fact that the arbitrator’s interpretation of the CBA and the concomitant remedy of reinstatement conflicts with the sexual harassment policy. As Title VII is designed to encourage the creation of anti-harassment policies and effective complaint mechanisms for reporting harassing conduct, an employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking under federal law, and appropriate corrective action is required following such investigation.

If the Authority is forced to honor the arbitration award, the Authority will not be complying with Title VII and the New York State and New York City Human Rights Law, each of which requires that an employer impose appropriate discipline for proven cases of sexual harassment in order to ensure a safe work environment free of sexual harassment. Accordingly, said the Appellate Division “this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections.”

The Court said it was imperative that employers have the unfettered ability to discipline employees such as this bus driver in order to both punish the offender and to deter other employees from engaging in such behavior.

The Appellate Division then unanimously reversed the Supreme Court’s ruling “on the law” and vacated the arbitrator’s award.

* Presumably the Authority tried the employee in absentia.

The decision is posted on the Internet at:


The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions focusing on disability leave issues. For more information click on


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