TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

August 4, 2020

Providing a negative employment reference to a prospective employer in retaliation for engaging in a protected activity held to be in violation of New York State's Human Rights Law

In this action the Appellate Division observed that New York State Human Rights Law provides that it is unlawful to retaliate against an employee opposing discriminatory practices.* To establish an unlawful retaliation claim, said the court, an employee [Complainant] must show that "(1) Complainant had engaged in protected activity, (2) Complainant's employer was aware that Complainant participated in such activity, (3) Complainant suffered an adverse employment action because of Complainant's protected activity, and (4) there is a causal connection between the protected activity and the adverse action." Once this initial burden has been met, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions."

The New York State Division of Human Rights [NYSDHR] found that the employer had unlawfully discriminated against the Complainant by providing a negative employment reference to a prospective employer in retaliation for Complainant's engagement in a protected activity in violation of Executive Law §296, awarding the Complainant "compensatory damages in the principal sum of $5,000 for mental anguish, plus interest at the rate of nine percent per year from June 29, 2017, and assessing a civil fine and penalty against the [Employer] in the principal sum of $10,000, plus interest at the rate of nine percent per year from June 29, 2017." Employer appealed the NYSDHR's decision.

The Appellate Division confirmed NYSDHR's ruling and denied Employer's petition and dismissed the appeal on the merits. The court explained that "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence** in the record," citing Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898. Further, opined the court, "Under a substantial evidence review, courts may not weigh the evidence or reject [the Commissioner's] choice where the evidence is conflicting and room for a choice exists" citing Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69.*** 

Finding that Complainant had made a prima facie case of unlawful discrimination within the meaning of the State's Human Rights Law, the Appellate Division ruled that "the burden [of going forward] shifted to the Employer to present evidence of a legitimate, independent, and nondiscriminatory reason to support [its agent's] action, and the [employer] failed to do so."

Accordingly, the Appellate Division confirm NYSDHR's determination, finding that the award of compensatory damages for mental anguish was reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries. Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness," the Appellate Division said it "perceive no basis for disturbing the civil fine and penalty assessed against the [Employer]." 

* Executive Law §296[1][e]; [7]. 

** "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" [See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176]. 

*** This case was decided with another case involving the same parties and is posted at http://www.nycourts.gov/reporter/3dseries/2020/2020_04302.htm.

The decision in this appeal is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04303.htm 

August 3, 2020

Determining the fitness of candidates for appointment to positions in the public service

An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.* As long as the administrative determination is not irrational or arbitrary and capricious, courts typically will not disturb it. ** 

Plaintiff commenced this proceeding pursuant to CPLR Article 78 seeking judicial review of a Civil Service Commission's decision disqualifying him for a position as a police officer. Supreme Court denied Plaintiff's petition and dismissed the proceeding and Plaintiff appealed the court's ruling to the Appellate Division.

Addressing Plaintiff's complaint that the Commission had wrongfully denied his request for disclosure of information pertaining to his disqualification, the Appellate Division opined that the Commission's denial of Plaintiff's request was proper, citing Grossman v McMahon, 261 AD2d 54. In his appeal Grossman had contended that his request certain the background information should have been approved. The Grossman court disagreed, explaining that in a proceeding "of this nature, where disclosure is available only by leave of court pursuant to CPLR 408," Supreme Court has broad discretion in granting or denying disclosure "... although it must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality."*** 

In the instant case the Appellate Division held that the Commission's determination disqualifying the Plaintiff from eligibility for appointment to the position of police officer was neither irrational nor arbitrary and capricious.

Addressing another argument raised by Plaintiff, the Appellate Division said that the Commission's disqualification determination violated neither §296[15] of the Human Rights Law nor §§750[5] or 752 of the Correction Law, citing Little v County of Westchester, 36 AD3d at 617.

Accordingly, the Appellate Division said it agreed with the Supreme Court's determination to deny the Plaintiff's petition and dismissal of the proceeding. 

* See Matter of Rogan v Nassau County Civ. Serv. Commn., 91 AD3d 658. 

** Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498 

*** In Grossman the Appellate Division concluded that "Supreme Court did not abused its considerable discretion in denying disclosure of the background investigation file" Grossman had sought.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04304.htm

August 2, 2020

N.Y. vs. COVID-19 --- Governor Cuomo reports on COVID-19 in New York State

On August 1, 2020, New York State's Governor Andrew M. Cuomo announced that the State conducted 82,737 COVID-19 tests on July 31, 2020 — the highest number of tests ever conducted in a single day in the state. 0.91 percent of those test results were positive or, stated in the alternative, 99.09% were negative for the 82,737 tests administered on July 31, 2020.

Governor Cuomo also reported New York State's progress during the ongoing COVID-19 pandemic. The number of new cases, percentage of tests that were positive and many other helpful data points are always available at forward.ny.gov.

The August 1, 2020 data is summarized below: 
  • Patient Hospitalization - 581 (+5)
  • Patients Newly Admitted - 92
  • Hospital Counties - 30
  • Number ICU - 147 (+7)
  • Number ICU with Intubation - 72 (+2)
  • Total Discharges - 73,134 (+79)
  • Deaths - 4
  • Total Deaths - 25,164

Of the 82,737 tests conducted in New York State on July 31, 2020, 753, or 0.91 percent, were positive. Each region's percentage of positive tests over the last three days is as follows:

REGION
WEDNESDAY
THURSDAY
FRIDAY
Capital Region
2.1%
1.1%
1.1%
Central New York
1.1%
0.5%
0.7%
Finger Lakes
0.6%
0.7%
0.9%
Long Island
1.2%
0.9%
1.1%
Mid-Hudson
1.3%
0.9%
1.0%
Mohawk Valley
0.9%
1.0%
1.1%
New York City
1.0%
0.9%
0.8%
North Country
0.3%
0.5%
0.2%
Southern Tier
0.7%
0.6%
0.8%
Western New York
0.5%
1.6%
1.1%


The Governor also confirmed 753 additional cases of novel coronavirus, bringing the statewide total to 415,767 confirmed cases in New York State. Of the 415,767 total individuals who tested positive for the virus, the geographic breakdown is as follows:

County
Total Positive
New Positive
Albany
2,515
12
Allegany
74
0
Broome
1,048
11
Cattaraugus
158
0
Cayuga
144
1
Chautauqua
231
3
Chemung
163
0
Chenango
209
2
Clinton
127
1
Columbia
519
3
Cortland
91
0
Delaware
103
1
Dutchess
4,504
14
Erie
8,548
56
Essex
55
0
Franklin
50
0
Fulton
282
7
Genesee
272
2
Greene
289
0
Hamilton
7
0
Herkimer
240
1
Jefferson
130
1
Lewis
34
0
Livingston
166
1
Madison
399
1
Monroe
4,742
32
Montgomery
155
1
Nassau
43,271
68
Niagara
1,444
4
NYC
225,460
312
Oneida
2,081
11
Onondaga
3,477
13
Ontario
349
0
Orange
11,088
6
Orleans
295
2
Oswego
244
3
Otsego
112
0
Putnam
1,425
4
Rensselaer
734
10
Rockland
13,880
16
Saratoga
726
11
Schenectady
1,032
9
Schoharie
68
0
Schuyler
22
1
Seneca
85
1
St. Lawrence
261
1
Steuben
290
0
Suffolk
43,300
76
Sullivan
1,483
3
Tioga
188
1
Tompkins
230
2
Ulster
2,026
5
Warren
300
0
Washington
255
1
Wayne
245
0
Westchester
35,974
41
Wyoming
112
0
Yates
55
2


On July 31, 2020, there were 4 deaths due to COVID-19 in New York State, bringing the total to 25,164. A geographic breakdown is as follows, by county of residence:

Deaths by County of Residence
County
New Deaths
Albany
1
Bronx
1
Jefferson
1
Onondaga
1

Public Personnel Law E-books

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Please Note:

Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

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