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N.B. §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 applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

November 1, 1991


Foxell v New York City Human Resources Administration, 167 A.D.2d 126

Foxell, a social services caseworker, was briefly hospitalized for stress and place on sick leave for about three months.

Although he took and passed a promotion examination for Supervisor I [he was rated 73 out of some 2,000 candidates] and was interviewed for the position, he was not selected for appointment. Foxell alleged that he was denied the promotion because "respondents determined that he was medically unable to handle the duties of the position." He sued, claiming unlawful discrimination in violation of the Human Rights Law, citing as evidence of this allegations that he was not permitted to resume his normal duties upon his return from sick leave and that his supervisors barely spoke to him following his illness.

The Appellate Division, First Department, said that Foxell had stated a cause of action and reversed a lower court decision dismissing his petition. It said that "although respondents had no obligation to give [Foxell] any reason for their determination not to promote him, such determination may not be based upon illegal grounds, including unlawful discrimination."

The Count concluded that Foxell had "plainly alleged a link between his hospitalization and sick leave and his subsequent treatment on the job." While this did not directly establish improper reasons for the denial of the promotion, "it is certainly probative and suggestive of [the] same." The Court then reinstated Foxell's petition, allowing him to proceed with his discrimination action.


Sundram v Hallerman 164 A.D.2d 189, decided with Sundram v Kirschbaum et al

Does an individual have the right to have his or her attorney present during an "investigatory interview?" This is frequently a question raised in the course of a disciplinary investigation and was one of the issues considered by the Appellate Division, two cases, Sundram v Kirschbaum et al, and Sundram v Hallerman.

Sundram, Chairman of the State Commission on Quality Care for the Mentally Disabled, appealed a lower court's ruling that employees at Bellview Hospital Center in New York City could not be compelled to testify during the Commission's investigation into the death of a patient and the sexual abuse of another without the benefit of counsel being present. The Commission had attempted to compel certain employee witnesses to testify before it without their attorneys being present. The Commission had earlier advised the employees of its policy against allowing attorneys to be present during its interviews.

The Appellate Division, reversing a lower court ruling that allowed the employees to have their lawyers with them during their testimony, said that "the courts consistently have rejected the right to counsel before an investigatory administrative body." It also held that there was no constitutional right to counsel in this case. The Appellate Division described the Commission's authority as investigatory in nature "as it has no adjudicative functions, existing merely to gather facts, generate reports and make recommendations." The ruling indicates that the fact "that disciplinary or criminal proceedings may result from the Commission's investigatory function is insufficient reason to impose a right to counsel."

N.B. Some Taylor Law contracts provide that an employee may have attorney or a union representative present during a predisciplinary investigatory interview.]

As to the claim that there was a right to counsel pursuant to §73 of the Civil Rights Law, the Appellate Division said that although the Kirschbaum and Hallerman briefs conceded that the Commission was not an "agency" within the meaning of that Law. they then argue that the "Commission is the functional equivalent of an agency as defined in the Civil Rights Law ... and therefore should be bound by the same right to counsel provisions." The Appellate Division rejected the argument, stating that "the statutory provisions of the Civil Rights Law §73 are clear and we should not extend them beyond the unambiguously expressed intentions of the Legislature."


Rawlins v Hartnett, 561 NYS2d 110

Nyra Rawlins, a school bus driver, was told by her employer and by the Department of Transportation that in order to keep her job she was required to complete a 20-hour training course. When she failed to attend one of the sessions during which the course was offered, she was terminated. Rawlins applied for unemployment insurance benefits. Disqualified on the basis that her employment
was terminated due to misconduct, she sued.

The Appellate Division upheld the Unemployment Insurance Board's determination, noting that the record clearly showed that Rawlins had not taken the course as required. In addition, the Court said that Rawlins had never indicated to her employer that she would take the course at any time in the future. Under the circumstances the Court held that the Board's decision disqualifying Rawlins from receiving benefits due to misconduct was supported by substantial evidence.

In another case involving the separation of an employee for alleged misconduct, McMillan v Hartnett, __ AD2d __, the Appellate Division upheld the Board's disqualification of an employee for unemployment insurance benefits where the record showed that McMillan was not only absent excessively during a two-year period, but was late for work some 70 days in a 10-month period. Also noted was the fact that McMillan refused to accept a transfer to another work shift that her employer deemed necessary due to her attendance record. 


Klein v Regan, 165 A.D.2d 944

To properly file an application for membership in the New York State Employee's Retirement System the application must be delivered to and received by the appropriate official. Klein v Regan, 561 NYS2d 107, discusses the question of what constitutes a proper filing of the application for membership.

Klein, elected to a County Legislature, was not required to join the System. However Klein claimed that he elected to do so and that prior to his taking office in January, 1972, he completed the required application form for membership and gave it to the then Deputy Clerk of the Legislature. Klein alleged that the Deputy Clerk assured him that he would file the application for him. About five years later Klein learned that he had never been enrolled as a member of the System.

Klein then filed a "second application" for membership, and became a member in January, 1980. When he was enrolled in Tier III, he claimed that he should have been enrolled in Tier I.

The benefits under Tier I differ significantly from those available to members under Tier III]. The Retirement System denied his request.

Affirming the System's determination, the Appellate Division said that as Klein's membership in the System was optional, he could not become a member until his application was actually filed with the Retirement System. The fact that there may have been uncontradicted proof that Klein had given the application form to the Deputy Clerk for transmittal to the System was viewed as irrelevant by the Court.

The Court said that "simply mailing an application is not the equivalent of filing; [a application] is filed only when it is delivered to and received by the appropriate official." Delivering the membership application form to the Deputy Clerk was not the equivalent of filing it with the System unless it could be shown that the System had designated the Deputy Clerk as its agent for this purpose. As there was no showing that the Deputy Clerk had been so designate, the Comptroller's decision was affirmed.

The Appellate Division, Third Department cited its ruling in Klein in a similar case, Bolier v New York State Employees' Retirement System, 167 A.D.2d 815. Bolier, whose membership in the System was also "optional," claimed that he should have been enrolled in Tier II rather than Tier III.

Although appointed in June, 1976, Bolier's membership application was not filed with the System until August 12, 1976. The cutoff date for enrolling as a Tier II member of the System was July 27, 1976. Again the Court said "he could not become a member ... until his application was actually filed with the ... Comptroller." 


Sarro v Ward, 561 NYS2d 3

It is not unusual for a hearing officer or appointing authority to be faced with conflicting testimony concerning events in the course of a disciplinary hearing. In Sarro v Ward the court considered the issue of the assignment of credibility to the testimony of witnesses in such a proceeding.

Sarro was charged with attempting to purchase a quantity of a controlled substance. Although there was conflicting testimony presented during the hearing, he was found guilty of the charge on the basis of the testimony given by the employer's witnesses and dismissed from his position with the New York City Police Department.

Sarro appealed both the decision and the penalty imposed. The Appellate Division held that "[w]here there is a conflict in the testimony produced ... where reasonable men might differ as to whether the testimony of one witness should be accepted or testimony of another rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rest solely upon the [administrative agency]."

According to the ruling, a court may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for a choice to be made. Finding that the credited testimony of the employer's witness provided "substantial evidence for the determination," the Court affirmed the disciplinary determination and held that the penalty imposed, termination, did not shock its sense of fairness.


Di Caprio v Di Caprio, 219 A.D.2d 819 

In this divorce action the Appellate Division ruled that a master's degree and a permanent certificate in school administration acquired by the husband during marriage were marital property. Accordingly, the spouse was entitled to a distributive share of the value of the husband's degree and the certificate "because they are items of economic value that were acquired during the marriage."

The economic value was based on the "enhancement of [the husband's] earning power resulting from the degree and the certificate ...." This was determined by projecting the husband's future earnings on the basis of his actual earnings.

According to the decision, this was accomplished by comparing the salary the husband actually earned as an administrator with that which he would have earned had he remained a teacher, adjusted for taxes, and then multiplied by the number of years remaining in the husband's work life, discounting this amount to its "present value." The court said that this method of valuation is realistic and reasonable.

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