Thursday, June 29, 2017

Recent Decisions by OATH Administrative Law Judges


Recent Decisions by OATH Administrative Law Judges
Source: NYC Office of Tribunals and Hearings

Dismissal of disciplinary charges recommended
OATH Index Nos. 1417/17 & 1418/17

OATH Administrative Law Judge Astrid B. Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route.

The ALJ found that the home was across the street from workers' assigned route and that they were scheduled to service it the next day. The workers collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste.

Judge Gloade found that the fact that the workers failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.  

The decision is posted on the Internet at:


Termination of hospital dietician recommended
OATH Index No. 282/17

OATH Administrative Law Judge Noel R. Garcia recommended termination of a hospital dietician for "misconduct and/or incompetence" after finding that the dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk.

Judge Garcia was not persuaded by the dietician's contention that he had a  "high volume of work," concluding that "To the extent [the dietician] attempted to justify any of [his acts, omissions or errors] by blaming an alleged high volume of work, such argument is without merit."

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-282.pdf

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Wednesday, June 28, 2017

Spoliation of evidence


Spoliation of evidence
Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, Appellate Division, Fourth Department

Kelly Burke commenced this action seeking damages for injuries that she sustained when she slipped and fell on stairs at a facility owned and operated by Queen of Heaven R.C. Elementary School [Defendant] and sought partial summary judgment as to liability against Defendant on the ground Defendant had destroyed and replaced the stairs after Burke had notified Defendants of her intent to have her expert inspect the stairs, contending that such destruction and replacement of the stairs in question constituted "spoliation of evidence".

With respect to "spoilage", the Appellate Division noted that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed." In contrast, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense."

In order to obtain sanctions for spoliation of evidence, the plaintiff had the burden of showing that [1] the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] the evidence was destroyed with a culpable state of mind, and [3] the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Defendant conceded that the original condition of the stairway was relevant.

Noting that Defendant had an obligation to preserve the condition of the stairs existed because litigation had begun at the time the stairs were replaced, the Appellate Division agreed with Burke that she met her burden of establishing that Defendant destroyed the stairs with a culpable state of mind.

As Supreme Court had "properly concluded" that Defendant's culpable state of mind was evidenced by its destruction of the stairs during the parties' ongoing debate about whether Burke had to disclose the name of her expert to Defendant before Defendant would agree to the inspection, the Appellate Division said it agreed with Burke that the  imposition of a sanction against Defendant for spoliation of evidence was warranted here.

As to granting Burke partial summary judgment on liability based on Defendant's destruction of the stairway, the Appellate Division, citing Sarach v M & T Bank Corp., 140 AD3d 1721, explained that  in deciding to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.

Observing that "It is well established that a less drastic sanction than dismissal of the responsible party's pleading may be imposed where [, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense ... the record does not demonstrate that [Burke] has been left 'prejudicially bereft' of the means of prosecuting her action." Accordingly, the Appellate Division ruled that "given that [Burke] has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action, "an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs."

In contrast, in some instances the destruction of records will not be deemed to be subject to sanctions for "spoilage."

In Matter of Klikocki (NY Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

The decision is posted on the Internet at:

Tuesday, June 27, 2017

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration



New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration
Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2017 NY Slip Op 04849, Appellate Division, Second Department

The Village of Garden City sought to permanently stay arbitration of an alleged violations of a collective bargaining agreement [CBA] demanded by the employee organization, contending that the grievance at issue was not subject to arbitration because [1] the provisions alleged to have been violated were not a part of the parties' CBA; [2] the provisions involved did not contain its own arbitration clause; [3] the matters in dispute were not binding due to improper execution or expiration; and [4] public policy barred arbitration of the dispute.

In contrast, the Association moved to compel arbitration, arguing that the agreements it relied upon in its demand for arbitration constituted an addendum to the CBA and, thus, were subject to arbitration.

The Supreme Court determined that [1] arbitration of the dispute was not against public policy and [2] that the dispute was subject to the arbitration provisions in the parties' CBA. The Village appealed Supreme Court's granting the Association's motion to compel arbitration.

Citing Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758, the Appellate Division said that "The determination of whether a dispute between a public sector employer and [its] employee is arbitrable is subject to [a] two-prong test."

First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration [of] the grievance."

Second, should the court determine that there is no such prohibition against arbitrating the dispute, it must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular matter in dispute.

The Appellate Division then explained that in examining the collective bargaining agreement the court merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement. Should the court rule the matter arbitrable, the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA and whether the subject matter of the dispute fits within them.

Further, the Appellate Division observed that a court "may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

In this instance the Appellate Division ruled that Supreme Court correctly held that public policy does not prohibit arbitration of the Association's grievance alleging that the Village violated certain procedures and that it also correctly held that the Association's grievance was reasonably related to the general subject matter of the CBA. Thus, the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator.

Accordingly, the Appellate Division sustained the lower court's granting the Association's motion to compel arbitration.

The decision is posted on the Internet at:

Monday, June 26, 2017

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing


Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing
Doe v Onondaga County, 2017 NY Slip Op 04697, Appellate Division, Fourth Department

Jane Doe initiated an Article 78 action against Onondaga County and the Onondaga County Department of Social Services [Onondaga County].

Onondaga County asked Supreme Court to dismiss Doe's complaint contending Doe failed to comply with the provisions set out General Municipal Law §50-h as she failed to comply with its demand for a hearing pursuant to General Municipal Law §50-h.

Supreme Court denied Onondaga County's motion and the County appealed.

Citing Legal Servs. for the Elderly, Disabled, or Disadvantaged of W. N.Y., Inc. v County of Erie, 125 AD3d 1321, the Appellate Division said that "It is well settled that a plaintiff who has not complied with [the requirements set out in] General Municipal Law §50-h(5) is precluded from maintaining an action against a [county]."

However, §50-h(5) also provides, as here relevant, that "[t]he action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an adjournment or postponement beyond the ninety day period, the city, county, town, village, fire district or school district shall reschedule the hearing for the earliest possible date available."

The Appellate Division pointed out that Doe was in compliance with the statute as after Onondaga County demanded a General Municipal Law §50-h(5) hearing, Doe requested and was granted an adjournment of that hearing.

Contrary to the Onondaga County's contention, the Appellate Division said that it was incumbent upon the County to reschedule the adjourned hearing. Accordingly Supreme Court correctly denied Onondaga County's motion to dismiss Doe's petition.

The decision is posted on the Internet at:


Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely


Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely
Lozada v Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845, Appellate Division, Second Department

Beatrice Lozada, a former volunteer firefighter with the Elmont Hook and Ladder Company No. 1 [Elmont], filed administrative complaints against Elmont with the New York State Division of Human Rights [DHR] alleging that she had been subjected to a hostile work environment as the result of sexual harassment.

After a hearing, the DHR Adjudication Counsel [AC] determined that although the acts of sexual harassment that occurred during Lozada's early service with Elmont "clearly" constituted a hostile work environment, those acts occurred outside of the applicable one-year statute of limitations period set out in Executive Law §297(5). In addition, the AC determined that Lozada had failed to establish a continuing violation concluding that her hostile work environment claim was time-barred.

The Commissioner adopted the AC's findings and recommendation that Lozada's complaint be dismissed. In response, Lozada initiated an Article 78 proceeding challenging the Commissioner's decision with respect to the Commissioner's finding that her hostile work environment claim based upon sexual harassment was untimely.

The Appellate Division sustained the Commissioner's decision, which it found was supported by substantial evidence and was not arbitrary and capricious. The court explained that a review of the record demonstrated that the Commissioner's determination that Lozada failed to establish a continuing violation and thus her sexual harassment claim based a hostile work environment relying the Doctrine of Continuing Violation was misplaced. 
    
Although Lozada did establish the existence of a hostile work environment based on incidents of sexual harassment, the court noted that those incidents occurred outside the limitations period and Lozada failed to prove that a specified related incident took place within the limitations period required to invoke the Continuing Violation Doctrine.

The court explained that a hostile work environment claim is subject to a one-year statute of limitations and a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice.

Case law considering the Doctrine of a Continuing Violation indicates that the Doctrine is triggered even though one or more of those unlawful acts might have occurred outside of the limitations period so long as at least one of unlawful acts occurred within the limitations period.

Considering the viability of relying on the Doctrine of Continuing Violation in adjudicating a hostile work environment claim, in Strauss v New York State Dept. of Educ., 26 AD3d 67, the court held that "[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]" and that "once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability."

Finding that there was no basis to vacate the Commissioner's determination in this instance, the Appellate Division dismissed Lozada's appeal.

The decision is posted on the Internet at:

Saturday, June 24, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Click on text highlighted in color  to access the full report


Public Drinking Water Needs More Protection
New York's public water supplies need stronger protections to ensure clean drinking water and prevent contamination that could result in health problems, according to a report by State Comptroller Thomas P. DiNapoli.


Former Mahopac VFD Treasurer Sentenced After $5.6 Million Embezzlement

State Comptroller Thomas P. DiNapoli and Joon H. Kim, the Acting United States Attorney for the Southern District of New York, announced that Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (MVFD), was sentenced by U.S. District Judge Cathy Seibel to 77 months in prison for wire fraud, subscription to false tax returns, obstruction of the grand jury, and false statement charges arising out of his embezzlement of more than $5.6 million from the MVFD.


DiNapoli Announces State Contract and Payment Actions for May 2017

State Comptroller Thomas P. DiNapoli announced his office approved 1,531 contracts valued at $14 billion and approved nearly 2.3 million payments worth more than $12 billion in May. His office also rejected 219 contracts and related transactions valued at $400 million and nearly 1,900 payments valued at more than $7 million due to fraud, waste or other improprieties.


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of


Town of Ithaca and the


Friday, June 23, 2017

OATH disciplinary hearing held in absentia



OATH disciplinary hearing held in absentia 
OATH Index #728/17

A tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations.

The auditor failed to appear at trial and the matter proceeded by inquest. Based on credible testimony from a supervisor and documentary evidence, ALJ Addison sustained the charges.

Judge Addison found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct and recommended that the auditor be terminated from her employment.

Posted on the Internet at:

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Educator terminated for a continuing pattern of inappropriate behavior involving students



Educator terminated for a continuing pattern of inappropriate behavior involving students
Vagianos v City of New York, 2017 NY Slip Op 04779, Appellate Division, First Department

Kristopher Vagianos appealed Supreme Court's dismissal of his Article 75 petition to vacate a disciplinary arbitration award that resulted his termination as a tenured school teacher.

Sustaining the lower court's ruling, the Appellate Division noted that Vagianos had been previously disciplined and found guilty of similar misconduct and had neither taken responsibility for such misconduct that involved his "verbal abuse of one student and corporal punishment of a student confined to a wheelchair" nor was he deterred by that earlier disciplinary action from continuing his pattern of inappropriate behavior.

The record in the current appeal indicated that the hearing officer found that Vagianos, a teacher of special-needs students, made denigrating comments about a students' limitations in the presence of other teachers, including referring to such students as "waste products," made inappropriate comments to a student with autism, and made threatening comments to another teacher.

Under the circumstances, the Appellate Division said that its sense of fairness was not shocked by imposing the penalty of termination in this disciplinary action, explaining that Vagianos' insensitivity to and disrespect for his students "compromised his ability to function as a teacher."

The decision is posted on the Internet at:

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Thursday, June 22, 2017

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?


Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?
2017 NY Slip Op 04624, Appellate Division, Fourth Department

The Board of Education [School Board] sought to remove one of its members [Member] from her position on the School Board pursuant to Education Law §1709(18).

Subdivision 18 of §1709 sets out the relevant procedures to be followed in the event a school board seeks to "remove any member ... for official misconduct" and requires that a "written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal."

Member challenged the School Board's procedure in holding the hearing concerning her removal from the board, contending that the School Board had violated her First Amendment right of access when it closed the first three days of the Member's removal hearing to general public. Supreme Court denied her motion for summary judgment and Member appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling and, addressing the School Board's action barring the public from "the first three days" of the hearing, said:

1. "The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the government from 'abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances';

2. "[A] trial courtroom ... is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and the quality of what takes place;

3. "The United States Supreme Court has applied a two-part test to determine whether there was a right of access under the First Amendment [see Press-Enterprise Co. v Superior Ct. of Cal., County of Riverside, 478 US 1, 8-10], and the [New York State] Court of Appeals has used that test to determine whether there is a right of access to a professional disciplinary hearing;

4. "The test requires a court to consider 'whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question'; and

5. "Once it has been determined that there is such a right of access, then the proceeding 'cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'"

The Appellate Division found that Member failed to submit evidence establishing that, as a matter of law, removal hearings conducted pursuant to Education Law §1709(18) have historically been open to the public and that the public has played a significant positive role in such proceedings.

Accordingly, the court concluded that Supreme Court "properly denied [Member's] motion on the ground that [Member] failed to meet her burden of establishing as a matter of law that there is a First Amendment right of access to an Education Law §1709(18) removal proceeding."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_04624.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html
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Wednesday, June 21, 2017

A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law


A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law
City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, Court of Appeals

New York State Nurses Association (Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to certain information pursuant to New York City's Collective Bargaining Law (NYCCBL) §12-306(c)(4), in connection with disciplinary proceedings brought against two nurses employed by the City's Human Resources Administration (HRA).

HRA refused to provide the information the Union sought in connection with its representing the two nurses in the disciplinary action, including the "relevant policies and the HRA Code of Conduct, information on time-keeping, patient treatment records for the relevant dates, witness statements, and a written statement detailing how the nurses violated the HRA Code of Conduct." HRA also refused to permit the Union to question "the witnesses who gave statements and the nurses' supervisors."

The Board, with two members dissenting, ruled that it was an improper practice for the City to refuse to comply with certain of the information requests, finding that §12-306(c)(4) extends to information "relevant to and reasonably necessary to the administration of the parties' agreements, such as processing grievances." The Board, however, found that the Union was not entitled to witness statements or a written explanation regarding the violation or the opportunity to question the identified witnesses or supervisors, concluding that §12-306(c)(4) is limited to information "normally maintained in the regular course of business."

The City filed an Article 78 petition challenging the Board's determination.

Supreme Court granted the City's petition and annulled the Board's determination, concluding that the Board improperly extended the Union's right to obtain information for grievances pursuant to contract administration to disciplinary proceedings, noting that "the agreement does not explicitly require the City to provide information in disciplinary proceedings."

The Appellate Division unanimously reversed, holding that "the Board's decision, which was entitled to 'substantial deference,' had a rational basis" but granted the City leave to appeal on a certified question of whether its order was properly made.

The Court of Appeals affirmed the Appellate Division's ruling, Judge Garcia dissenting, explaining:

1. NYCCBL provides that it is improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees" and requires both employers and unions "to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining."

2. The Board held that NYCCBL §12-306(c)(4) extended to information "relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining."

3. The Appellate Division noted, "... the City and HRA do not dispute the Board's precedent holding that the duty to furnish information already applied to 'contract administration' and 'grievances' (including potential grievances)."

4. Union had bargained for and obtained the right to obtain such information in the context of a disciplinary proceedings and not just "contract" grievances by defining "grievance" to include disciplinary action in the relevant collective bargaining agreement.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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