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Processing a Freedom of Information request

In Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, the Court of Appeals, quoting Matter of Fink v Lefkowitz, 47 NY2d 567, said that "To promote open government and public accountability, FOIL* imposes a broad duty on government agencies to make their records available to the public. The statute is based on the policy that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'." 

In the instant action Plaintiff-Appellant's [Plaintiff] FOIL request asked the New York City Department of Education's [DOE] for copies of forms used by its employees' to request approval to be absent from work for religious observances in cases where the request was denied during a specified period of time. DOE denied Plaintiff's request on the ground that the requested records were not described so as to enable it, with reasonable effort, to conduct a search to locate and identify them.** This decision was sustained administrative appeal.

Plaintiff then initiated a CPLR Article 78 action seeking a court order compelling DOE (1) to produce such records pursuant to FOIL and (2) for an award of attorney's fees and litigation costs. Supreme Court denied the petition and, in effect, dismissed the proceeding, which ruling the Plaintiff appealed to the Appellate Division.

The Appellate Division explained that FOIL requires that documents requested be "reasonably described" in order to enable the agency to locate the records in question." With respect to DOE's denial of Plaintiff's request on the ground that the requested records were not reasonably described, the court opined that DOE conceded that it would be able to locate the requested records as they "are maintained at the schools where the relevant employees are currently or were last assigned."

Considering the fact that DOE "knows where the requested records are located," the Appellate Division rejected DOE's claim that it would be burdensome for it to conduct a search of the personnel files at each of its 1,700 schools to produce the requested records. In particular the court noted that FOIL provides that the "agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article."

However, the issue of "burdensome" for DOE to produce the requested records and, or, whether DOE is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and the Appellate Division said it could not resolve this issue "on this record" as, among other things:

1. It is unclear as to how much time would be involved for an employee at each school to review the relevant files; and 

2. Although Plaintiff has expressed its willingness to reimburse DOE for reasonable costs involved in having DOE's employees, or an appropriate third party, review and copy the relevant DOE's records, there is no information in the record as to what that cost would be or whether the Plaintiff would, in fact, be willing to reimburse DOE for the full amount of those costs, once those costs are determined.

Accordingly, the Appellate Division vacated the Supreme Court's judgment, reinstate the petition, and remit the matter to the lower court "further proceedings, including additional submissions by the parties, and a new determination of the petition." 

As the petition remains undetermined, the Appellate Division also ruled that Plaintiff's request for an award of attorney's fees and litigation costs was premature.

* Public Officers Law Article 6 [see generally POL §84]

** DOE explained that the requested records were "not coded or stored electronically"  and in order to locate and identify the requested records, more than 100,000 individual personnel files would have to be searched. 

The decision is posted on the Internet at:


Duty to provide a safe workplace does not extend to injuries resulting from hazards that are inherent in the work the employee is to perform

The plaintiffs [Plaintiff] in this action to recover damages for personal injuries "suffered on the job" was employed as a sanitation worker by the City of New York [City]. Plaintiff claimed that he was injured while he and a coworker were working "on the job" lifting a heavy bag of garbage as the result of his coworker's losing his grip on the bag. 

Plaintiff sued the City claiming, among other things, "common-law negligence and loss of consortium" as the result of [a] his coworker's negligence and [b] the City's negligence in the coworker's training and supervision. City moved for summary judgment dismissing the complaint, contending, among other things, that the injury was caused by an inherent hazard of the job for sanitation workers and that the injured Plaintiff's coworker was not negligent. 

Supreme Court granted the City's motion for summary judgment dismissing the complaint and Plaintiff appealed from those branches of the City's motion that resulted in the dismissal of Plaintiffs causes of action alleging common-law negligence and loss of consortium.

The Appellate Division sustained the Supreme Court's determination, explaining that although employers in New York State generally "have a common-law duty to provide their employees with a safe place to work," there is an exception to that rule whereby the duty "does not extend to hazards that are part of, or inherent in, the very work the employee is to perform". In this instance, said the court, "The hazard of being injured as a result of lifting a heavy garbage bag and loading it into a sanitation truck is inherent in the work of a sanitation worker," citing Marin v San Martin Rest., 287 AD2d 441.

The court ruled that City had established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the injured Plaintiff"s coworker was not acting negligently or differently than a reasonably prudent sanitation worker would, and that Plaintiff"s injury resulted from a risk inherent in his assigned work as a sanitation worker.

Finding that Plaintiff failed to raise a triable issue of fact, the Appellate Division said that it agreed with the Supreme Court's determination to grant those branches of the City's motion that were for summary judgment dismissing the causes of action alleging common-law negligence and loss of consortium.

Presumably Plaintiff would be eligible for workers' compensation benefits otherwise available to him.

The decision is posted on the Internet at:


Modifying or vacating an arbitration award after a consensual arbitration

In this action brought pursuant to CPLR Article 75 the employee [Employee] in this appeal sought to have Supreme Court vacate or modify an arbitration award. Employee appealed Supreme Court's denial of his petition and dismissal of the proceeding.

The Appellate Division affirmed Supreme Court ruling, pointing out that the arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement. Citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the court explained that such an award may not be vacated on the ground that the arbitrator exceeded his or her power unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power. 

The court held that Employee failed to demonstrate that the arbitration award violated this standard, "or that any other grounds for vacatur stated in CPLR 7511(b) apply."

Addressing Employee's challenge to the penalty imposed, the Appellate Division opined that award suspending the Employee, a bus driver, for 15 days without pay "as a result of an accident which occurred between a bus he was operating during the course of his employment and a motorized bicycle" was not irrational, and "did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:

A Reasonable Disciplinary Penalty Under the Circumstances

A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. 

For more information click on http://booklocker.com/books/7401.html


A public employer's motion seeking qualified immunity in the course of litigation must satisfy certain tests

The employee [Plaintiff] sued his former employer, [Defendants] contending [1] that he was dismissed from his position by Defendants without due process and [2] that his termination was an act of retaliation against him by Defendants in violation of the federal Civil Rights Act, 18 U.S.C. §1983, because he had filed a complaint against Defendants alleging racial discrimination . 

Although Defendants moved for summary judgment dismissing Plaintiff's action contending they were entitled to a qualified immunity, the federal District Court determined that they were not entitled to qualified immunity from Plaintiff's "18 U.S.C. §1983" claims "at the summary judgment stage" as "genuine issues of fact existed as to whether Defendants acted 'objectively reasonably' with regard to both claims — as Defendants must do in order to obtain qualified immunity." Defendants appealed.

The Circuit Court of Appeals, Second Circuit, said that the first issue to be resolved was whether it had jurisdiction to adjudicate Defendants' appeal. 

Conceding that an order denying a motion for summary judgment is generally not . . . appealable” except when “the summary judgment motion is based on a claim of qualified immunity,” the court pointed out that there was an exception to this exception. Citing Catone v. Spielmann, 149 F.3d 156, the Circuit Court then explained that “a defendant may not appeal a district court’s summary judgment order — even one addressing the availability of a qualified immunity defense — insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial.”*

In the event the District Court finds that the evidence was sufficient to create a jury issue, as it did in this instance, the Circuit Court said "that is the end of our review" as Defendants’ argument on appeal amounts to a challenge of whether the evidence was sufficient and, in the words of the Circuit Court, "we lack jurisdiction to review the denial of qualified immunity."

Here the District Court concluded that there disputed facts that could lead reasonable jurors to different conclusions about whether Defendants acted “objectively reasonably” and thus deserved qualified immunity. 

Further, observed the Circuit Court, "in assessing Defendants’ argument that they are entitled to qualified immunity on [Plaintiff's] retaliation claim, the District Court noted several additional issues of material fact to be resolved, particularly about whether Defendants acted with a retaliatory motive. As Plaintiff and Defendants differ on this factual issue of intent that is the basis of such a claim, the District Court once again concluded that there were facts were for the jury to consider and decide. 

As the District Court denied Defendants motion for qualified immunity and denied their motion for summary judgment on these claims, finding genuine issues of fact to be resolved at trial, the Circuit Court found that the lower court's ruling was not appealable and dismissed Defendants' appeal.

In addition, the Circuit Court pointed out that it may not “entertain an interlocutory appeal in which a defendant contends that the district court committed an error of law in ruling that the plaintiff’s evidence was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense,” citing Salim v. Proulx, 93 F.3d 86. An interlocutory appeal is an appeal of a ruling by a trial court while other aspects of the litigation are still proceeding.

The decision is posted on the Internet at:

Public Personnel Law Handbooks

The Discipline Book, -

A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances -

A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. 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 selected court and administrative decisions. For more information click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel

A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on