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December 31, 2008

AIDS AND THE HUMAN RIGHTS LAW

 AIDS AND THE HUMAN RIGHTS LAW

The Court of Appeals has affirmed the Appellate Division's decision in Health Insurance Assoc. of America v Corcoran, 115 AD2d 61 holding that health insurers may lawfully test applicants for the AIDS virus and decide not to insure those testing positive for HIV. The case had been brought by a group consisting of insurance companies and associations to challenge a rule by the Superintendent of Insurance prohibiting writers of health insurance policy denying coverage to persons testing HIV positive. The rule prohibited an insurance company from asking applicants to submit to HIV testing and then refusing to issue a policy if the test was positive. The regulation, however, did not apply to the issuance of a life insurance policy.

In contrast, the Commissioner of Human Rights ruled that a hospital unlawfully discriminated against an applicant for a pharmacy position when it refused to employ the applicant because of a positive HIV test [State Division of Human Rights (John Doe) v A Medical Center, NYLJ 12/26/90]. Here the Commissioner said that "it is undisputed that [Doe] is HIV seropositive and that HIV seropositivity constitutes a "disability" within the meaning of the Human Rights Law." The decision indicates that the only reason why Doe was denied employment was because of his HIV seropositivity. The major issue before the Commissioner was whether Doe's disability "prevented him from performing 'in a
reasonable manner' the duties of a pharmacist with [the Medical Center].

According to the SDHR ruling, there was "overwhelming evidence in the record to the effect that [Doe's] unrestricted employment as a pharmacist posed a negligible risk of infection to patients." It was held that the Center's denying Doe unrestricted employment was based on surmise, conjecture and blind prejudice, rather than the facts, in violation of the Human Rights Law. The Center was directed to offer Doe the next available position, subject to any additional testing required by regulations of the New York State Department of Health.

CREDIBILITY OF WITNESSES


CREDIBILITY OF WITNESSES
Decisions of the Commissioner of Education, Decision #12,399

A teacher was charged with conduct unbecoming a teacher based on allegations that he touched the breasts or buttocks of female students on a number of occasions. When the §3020-a hearing panel cleared him of all charges and specifications, the district appealed. The Commissioner sustained the hearing panel's determination.

One of the issues involved the credibility of the witnesses. As to the testimony of the student-witnesses, the panel said "words are hopelessly inadequate to describe the tinny, artificial, and canned nature of ... [the teacher's] accusers." The record indicates that teacher was alleged to have repeatedly "patted the rear-ends of some of the girls in a classroom full of children and none of the boys (except one whose testimony was discounted by the panel) saw any of this happen."

As to the testimony of another student, the panel said that "an oath has no meaning for this child whatsoever; she will say whatever she wants, whenever she wants."

On the issue of credibility, the Commissioner said that "where the panel determination rests in a major part on determination of witness credibility, [he] will not substitute [his] judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts."

The Commissioner also rejected the district's argument that the accused teacher had the burden of proving that the student complainants were not telling the truth. A psychologist hired by the district testified that he concluded that "all the girls he interviewed were truthful." The district claimed that the teacher had the obligation of calling his own expert to refute such testimony. The Commissioner said that the district had the burden of proving the teacher's guilt by a preponderance of the evidence and "the fact that the [teacher] failed to call an expert in response to the [district's] expert does not reflect adversely on the [teacher] because he had no duty to call an expert."

USE OF PHYSICAL FORCE


USE OF PHYSICAL FORCE
Decisions of the Commissioner of Education, Decision #12,421

The Commissioner rejected an appeal from a determination by a §3020-a hearing panel that found a teacher guilty of using excessive force against a pupil and imposed a penalty of a one month suspension without pay.

The record indicates that the pupil was unruly and confrontational and provoked the incident. Although district's regulations acknowledge that the use of reasonable physical force to restrain a student or to protect oneself may be justified under limited circumstances, here the hearing panel decided that the teacher's actions went beyond that. It said that the teacher did not "simply restrain the student but, rather, pushed her aggressively against the wall."


RELEASING STUDENTS DURING THE SCHOOL DAY


RELEASING STUDENTS DURING THE SCHOOL DAY
Sprecher v Port Washington Union Free School District, 166 A.D.2d 700 

The Sprecher case concerns a matter frequently faced by school administrators and teachers -- the release of a student from class during the school day. It seems that under certain conditions a teacher or administrator may be held liable negligence for releasing the student. Liability will result if the court finds that the teacher or administrator did not act "prudently" under the circumstances.

In this action a parent sued the principal and the district for negligence "in the discharge of their duty of care toward the [students] while they were in their custody." At the time the children were the center of a custody dispute between the parents.

According to the decision, the school principal released students to their natural father when the father served the principal with a Texas court order, certified by a New York Family Court clerk, transferring the custody of the children from their mother to him. The principal believed he had to comply with the terms of the Texas court order when he released the students to the custody of their father.

The Appellate Division said that "the school district has a duty to exercise the same degree of care toward the students in its custody as a reasonably prudent parent would exercise under comparable circumstances. Here the court concluded that this test had been met. Agreeing with the principal's action in releasing the children to their father, the Appellate Division ruled that "as a matter of law [the principal's] actions in obeying the Texas Court order were those of a reasonably prudent parent."

The decision notes that "generally a lawful order of a court must be obeyed or the individual against whom such an order is directed may be liable for contempt for his failure to do so." In addition, the Appellate Division said that when faced with a court order "one is not free to simply ignore it on the grounds that it may be erroneous."

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS
Stoetzel v Wappingers Central School District, 18 AD 2d 636 561 NYS2d 71

Gerhard Stoetzel claimed that he was subjected to unlawful discrimination due solely to his national origin or ancestry in violation of §296 of the Executive Law [the Human Rights Law] when he was suspended without pay by the School District.

His claim was dismissed by a Supreme Court judge for a number of reasons, including timeliness. On this point the Courts said that the complaint had not been brought within the Statute of Limitations -- the one year period allowed by §297.5 of the Executive Law.

In reviewing Stoetzel's appeal, the Appellate Division said that the lower court's dismissal on the basis of timeliness was incorrect, indicating that "it is well established that the institution of civil actions to recover damages for unlawful discriminatory practices under Executive Law §296 is governed by the three-year statute of limitations prescribed in CPLR [Civil Practice Law and Rules] §214(2)."

However, this ruling did not prove to be particularly helpful to Stoetzel as the Appellate Division also indicted that when a school district is sued, §3813(1) of the Education Law requires that a notice of claim must be presented to the district involved within three months after the accrual of the claim. Since Stoetzel conceded that he had not complied §3813(1) [nor did he ask for approval to file a late claim until after the Statute of Limitations had expired], the Appellate Division said that his complaint was "fatally defective" and dismissed his appeal.

MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION



MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION
Gross v Elmsford UFSD, 73 A.D.2d 949, [affd., 78 NY2d 13]

In Gross v Elmsford UFSD the Appellate Division, affirming a lower court's determination, held that if a teacher was terminated, the teacher had a duty to mitigate damages for back pay by accepting employment in another suitable position if such an opportunity for employment is offered by the district.

The basic question concerns the duty of a tenured teacher ultimately found to have been wrongfully terminated to mitigate his or her employer's liability for damages resulting from the unlawful dismissal.

SOME LAYOFF CONSIDERATIONS

SOME LAYOFF CONSIDERATIONS

§§80 and 80-a of the Civil Service Law deal with layoff of officers and employees in the Classified Service from the public service. Although there may be no statutory equivalents to §§80 and 80-a of the Civil Service Law insofar as incumbents of exempt and labor class positions are concerned, it is possible that a provision contained in a Taylor Law agreement or some rule, regulation or employer policy might be applicable in such cases.

In addition, layoff from positions in the unclassified service are sometimes governed by statute. For example, §2588 of the Education Law controls with respect to the layoff of tenured teachers in school districts having a population of one million or more.

As to mechanics, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections of law. (see 1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

It may be costly to the employer if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention is laid off and another individual having lesser rights to retention is continued in service instead, the Courts will usually award the individual who was laid off in error back salary and other benefits. The employer will normally be directed to reinstate the individual to his or her former position as well.

Some of the factors to consider in layoff situations are outlined below:

TENURE: Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.

SENIORITY: As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's first permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff. Such "seniority" is not always the same as the employee's "seniority in the title" or seniority under a Taylor Law agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

LEAVES AND RESIGNATIONS: Separation from employment on leave of absence without pay in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off. Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

LAYOFF UNITS: Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

MILITARY SERVICE: Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2| years of service credit is added in the case of non-disabled veterans.

The spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.

BLIND EMPLOYEES: A blind employee is entitled to absolute preference in retention in cases of layoff.

TAKEOVERS: Another aspect that may prove important in some situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

TAYLOR LAW: Another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement. The Courts have indicated that statutory seniority rights for the purposes of layoff may not be impaired or limited by Taylor Law agreements.

In Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

The same is true with respect to Taylor Law contract provisions that affect the layoff rights vested in employees by §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].

AFFIRMATIVE ACTION: Layoff may also adversely impact upon affirmative action plans, interests and goals. Substantial numbers of employees employed pursuant to Affirmative Action programs are expected to be among those having the least seniority and thus having the greatest potential for layoff. Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item or the position must be kept vacant.

It appears unlikely that a layoff scheme based on a "bona fide" seniority system will be set aside by the courts solely on the basis of evidence that such a system has an adverse impact on minorities and women or impairs the gains minorities and women have attained under an Affirmative Action plan. One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority do not violate Title VII or the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (NAACP v Detroit Police Officers Association, 52 FEP 1001).

RETIREMENT: In an effort to reduce the total number of persons to be laid off, somtimes legislation has been passed that provides certain State employees with a "retirement incentive." In such situations typically incumbents of positions identified by a State agency for elimination due to economy, consolidation or abolishment of functions, curtailment of activities or for similar reasons who are eligible and elect to retire might be given additional retirement member service credit for each year of retirement member service, not to exceed a maximum of specified limit of such additional service credit.

December 27, 2008

Expulsion of union members by the employee organization


Expulsion of union members by the employee organization
Matter of Rutman and CSEA, 23 PERB 4602

When member of the union decided to support a rival organization, the union expelled him from membership. The employee claimed that such action was an improper practice within the meaning of §209-a.2(a) of the Civil Service Law [the Taylor Law] [Matter of Rutman and CSEA, 23 PERB 4602].

PERB's Director of Public Employment Practices and Representation, citing Matter of Schneider, 23 PERB 4567, dismissed the complaint, noting that PERB has repeatedly refused to entertain complaints about internal union discipline or other internal union affairs which neither affect an employee's terms and conditions of employment nor violate any fundamental purposes or policies of the Act."

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING
Amalgamated Transit Union and NYC Transit Authority, 23 PERB 4603

An ALJ ruled that an employer that had been providing employees with free parking could unilaterally withdraw the benefit because it had retained the right to withdraw the benefit at any time.

The decision notes that the Authority had adopted rules regulations that included a provision that stated that the "granting of permission to eligible employees to park their private vehicles on Authority property is at the absolute discretion of the Authority and is subject to being withdrawn at any time." 

Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law


Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law
Matter of CSEA and Nassau County, 23 PERB 4595

PERB ruled that it was an improper practice for the county to unilaterally discontinue allowing its employees on disability leave pursuant to §207-c of the General Municipal Law to continue to accrue vacation and sick leave credits while on such leave.

§207-c allows police officers and others covered by its provisions to continue to receive full pay while on disability leave as a result of a line-of-duty injury.

PERB'S ALJ held that as sick leave and vacation credits are mandatory subjects of negotiations and it had been a past practice to allow such accruals during §207-c leave situations, Nassau violated §209-a.1(d) of the Civil Service Law by unilaterally discontinuing the practice.


NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS

NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS
Matter of the City of Buffalo, 23 PERB 3048

 PERB affirmed a decision by an ALJ that a union demand that the employer provide unit members with five days advance notice of changes in their shift or building assignment was a mandatory subject of collective bargaining.

 One of the elements to the City's objection was its claim that demand was not a mandatory subject of negotiations because it did not provide for emergency situations in which advanced notice could not reasonably be given. The ALJ concluded that on the basis of testimony and documentary evidence in the record both parties "specifically understood that emergency situations would constitute an exception to the five-day notice contained in the demand."

 PERB noted that in City of Schenectady, 21 PERB 3022, it had ruled that a similar demand was nonmandatory "because [PERB was] unable to determine from the mere language of the demand or parole evidence concerning its intent, that the demand would not interfere with the employer's right to determine staffing needs."

 In contrast to the situation in Schenectady, PERB said that in the Buffalo instance "both parties understand that the demand is intended to apply in nonemergency situations, and that alternatives, such as the payment of overtime compensation, are still available to meet emergency staffing needs. Under these circumstances the demand is mandatorily negotiable.

DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT


DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT
Matter of Copaigue Union Free School District, 23 PERB 3046

The holding in Matter of Copaigue Union Free School District, concerns the duty of negotiators to recommend ratification of a proposed agreement.

 In this case the Union's chief negotiator, at the beginning of a unit member meeting to consider ratification of a proposed agreement, announced that the four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The agreement was rejected, 19 to 4.

 The District charged that this statement violated §209-a.2(b) of the Taylor Law. The ALJ agreed with the District, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

 PERB affirmed the ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the District.


CONTRACTING OUT JANITORIAL WORK

CONTRACTING OUT JANITORIAL WORK
In the Matter of the Middle Country Central School District, 23 PERB 3045

PERB ruled that a School District violated its Taylor Law agreement when it unilaterally subcontracted janitorial work in connection with the opening of school buildings for special events on holidays.

 The District had argued that the union had waived its right to negotiate terms and conditions of employment not specifically covered by the agreement. PERB said that the District had the burden of proving this "affirmative defense" and upheld the Administrative Law Judge's [ALJ] finding that a clear, unequivocal waiver by the union had not been demonstrated by the District.

 PERB also agreed with the ALJ's determination that "arbitration is not appropriate under the circumstances of this case, since contractual coverage of the subcontracting issue has not been established and since there is no pending grievance to which [PERB] could defer in any event."

 The District was directed not to assign nonunit personnel to open District buildings on holidays and to make unit employees whole for any lost wages due to the contracting out of unit work, with "interest at the maximum legal rate."


PROBATIONARY TERMINATIONS


PROBATIONARY TERMINATIONS

 As a general rule, a permanent appointment to a position in the competitive class is subject to a probationary period. It is well settled law that if a probationer is terminated in good faith after completing his or her minimum probationary period but before completing the maximum period of probation for the position, such termination may be effected without notice of §75 Civil Service Law [or its equivalent] disciplinary charges and a disciplinary hearing.

 Sometimes an employee whom the appointing authority claims has been terminated during his or her probationary period challenges the termination on the grounds that he or she has completed the probationary period and thus cannot be terminated except for cause and after a hearing. In such cases the date of the probationer's permanent appointment is critical insofar a determining the date on which the employee's probationary period ended. The problems that may arise when there is some question as to the effective date of a permanent appointment is illustrated in Mallon v Parness, 171 A.D.2d 899.

 In Mallon the parties agreed on only one fact: Mallon was terminated from his position of Sergeant with the Suffern Police Department effective April 11, 1989. The effective date of his promotion to Sergeant was, however, a critical, but unresolved question.

 Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The Village, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when his promotion to Sergeant was terminated. To further complicate the matter, the records of the Rockland County Personnel Office show that Mallon was appointed Sergeant effective June 1, 1988.

 If either the date of appointment claimed by Mallon or the date of appointment recorded in the Personnel Office was correct, Mallon had completed the required probationary period and he was entitled to notice and hearing before he could be lawfully terminated. If Mallon's effective date of appointment was October 26, as claimed by the Village, his termination on April 11, 1989 without any notice or hearing was lawful. The Appellate Division decided that there was a material question of fact to be resolved and that summary judgment in favor of the Village by the lower court was inappropriate under the circumstances.

[EDITOR'S NOTE: The appointment date in the Civil Service Commission's or Personnel Officer's records are usually held to control.] 


THE GEOGRAPHICAL JURISDICTION OF SUNY PEACE OFFICERS


THE GEOGRAPHICAL JURISDICTION OF SUNY PEACE OFFICERS

 The Attorney General advised the Chancellor of State University that a State University "peace officer possesses limited law enforcement powers when outside his [or her] geographical area of employment" [Formal Opinions of the Attorney General, 90-F10].

 The Opinion indicates that this issue is part of the "bailiwick problem." According to 90-F10, a peace officer may exercise warrantless arrest authority only when within the "geographical area of [the peace officer's] employment as defined in §140.25(5)" of the Criminal Procedures Law with one exception: a peace officer, pursuant to §140.25(4), may make a warrantless felony arrest outside his or her jurisdiction if "the felony was committed in the peace officer's presence and the arrest is made immediately after the felony is committed."

 The State University had asked if its peace officers' geographical jurisdiction included areas which a peace officer might traverse traveling from one discrete campus or part of a campus to another. §355 of the Education Law describes aSUNY peace officer's jurisdiction, including "close pursuit jurisdiction," insofar as the campus and other property of the university, including public highways that cross or adjoin University property is concerned. The Attorney General statedthat Legislature has "described with specificity" the geographical jurisdiction of State University peace officers with respect to a variety of their functions. He concluded the Legislature intended to restrict the exercise of the specific powers of SUNY peace officers to the geographical boundaries set out in §355(2)(1) of the Education Law and §690.25(3) of the Criminal Procedures Law.

 He then concluded that a SUNY peace officer's jurisdiction did not include "the off-campus public streets and public thoroughfares that the officers may traverse while in transit from one separate part of a University campus to another separate part ... [or] while in transit from one University campus to another." He also indicated that except as provided by §140.25(4), "an on-duty SUNY peace officer, while outside the geographical jurisdiction of his [or her] employment, has limited power to arrest without a warrant in the capacity of a private citizen, rather than in the capacity of a peace officer."

TESTING FOR ILLEGAL DRUGS


TESTING FOR ILLEGAL DRUGS

Below are a number of decisions that involved the use of illegal drugs by law enforcement personnel have been handed down by New York courts.

 In Jones v Ward, 560 NYS2d 781, the Appellate Division, First Department discusses drug testing procedures. Jones had been found guilty of unlawfully ingesting and possessing cocaine after a hearing. The record indicated that his urine, which he voluntarily provided, tested positive for cocaine using an EMIT test. Additional tests were also positive. The Commissioner rejected Jones' theory that the positive test results could have be caused by taking a "cough medicine, or possibly cocaine dust [to which he was exposed] during a drug arrest." Found guilty of violating a provision of the Department's Patrol Guide, Jones was dismissed from his position.

 The decision states that "positive results from an EMIT test, which are confirmed by a second test, or as here by two additional testing procedures, is sufficiently reliable to constitute substantial evidence that the person whose urine was tested used drugs."

 Gdanski v New York City Transit Authority, 561 NYS2d 51, involves the use of laboratory records of a urinalysis as evidence in an administrative proceeding. Transit Authority police officers were subject to being tested for drugs and their medical fitness after hospitalization. The record indicates that Gdanski had been hospitalized and that he tested positive for drugs on two occasions following his discharged from the hospital. The first sample tested positive for morphine; the
second was positive for cocaine.

 Gdanski, dismissed after a hearing, challenged the use of laboratory records of the test indicating that his urine tested positive for cocaine at the hearing. The Court held that the use of these records was permitted. It said that "not only were the laboratory records of the urinalysis admissible into evidence as falling under the business records exception to the hearsay [evidence] rule ... they were also admissible hearsay evidence in this administrative proceeding.

 As to the business record exception, there was testimony that indicated that the records were kept in the ordinary course of business by the laboratory. In addition there was testimony as to the "unaltered condition of the urine sample up to the time it was deposited with the laboratory." Gdanski also claimed that the Authority's drug testing policy constituted an unreasonable search under the United States Constitution. The Appellate Division disagreed, indicating that "the privacy expectations of police officers are diminished with respect to inquiries by the State into their physical fitness to perform on the job." Two cases involving "reasonable suspicion" sufficient to support requiring a law enforcement officer to involuntarily submit to testing for illegal drugs are Eldridge v Koehler, 561 NYS2d 161 and Martinez v Ward, 561 NYS2d 195. In Eldridge the Appellate Division ruled that "observations of [Eldridge's] physical appearance and demeanor" were sufficient to constitute reasonable suspicion that Eldridge was under the influence of drugs so as to justify an order requiring him to submit to urinalysis.

 Martinez, however, refused to submit to a drug test when he was suspected of drug use. He was dismissed from his position. When he challenged the termination, the Court found that his erratic behavior [mood swings from "animated behavior to fits of crying and depression"]; being observed both on-duty and off-duty in a known drug area; and finding a crack vial in his patrol car was deemed reasonable suspicion to suspect Martinez of drug use.

 In a case involving the alleged purchase of a controlled substance, Sarro v Ward, 561 NYS2d 3, one of the issues involved the credibility of witnesses where the testimony given by the witnesses was conflicting. The Court indicated that the choice as to which testimony to credit rests solely with the administrative agency. 

December 2, 2008

CREATING NEW POSITIONS


N. B. This case summary is uncorrected and subject to revision

There is only one way to create a new position, the way the controlling law requires. The statutory imperatives of Section 22 of the Civil Service Law reflects such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an "alternative" to the provisions of Section 22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (Section 200 et seq, Civil Service Law). Failing to comply with the mandates of Civil Service Law Section 22 is fatal and no new position can come into being unless it is created as prescribed by Section 22 (Civil Service Employees Association vs Town of Harrison, 48 NY2d 66). While the Court in its decision did not address the "status" of the incumbent of the "new position", it would appear that the "status" of the individual is not dependent on the "existence" of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., Section 80, Layoff) would control if the "nonexistent new position" could no longer serve as a "position" for payroll purposes.

November 20, 2008

Retirement incentives


Retirement incentives
Dodge v Schodack Central School District, 237 A.D.2d 806

Chapters 12, 14 and 189 of the Laws of 1995 provided for a number of "retirement incentives." The major objective of these measures was to reduce personnel costs.

Constance Dodge, together with other teachers employed by the Schodack Central School District, decided to retire at the end of the 1994-95 school year. They all submitted their respective resignations to that effect on or before April 13, 1995. Under the terms of the collective bargaining agreement then in place, the teachers thereby became eligible to receive a $5,000 "retirement bonus."

On May 4, 1995 the District elected to participate in a "State-wide retirement incentive plan."  This plan provided specific financial benefits to eligible individuals who decided to retire. Dodge and the other teachers attempted to obtain these "incentives." The District decided that they were ineligible for these benefits because they had already irrevocably resigned from the District. The teachers sued, seeking a court order directing the District to certify them as eligible for the additional incentives.

The Appellate Division sustained the District's determination. The Court noted that the intended effect of the legislation was to "induce the retirement of employees who would not otherwise have left the payroll ... and in so doing reduce the financial burden on those ... entities." The decision notes that "the law allows the benefits to be granted only when a position will be eliminated or significant savings will accrue."

The Court concluded that "no discernible public purpose is served by affording that benefit (which would cost the District approximately $72,000) to [these teachers] who had formerly indicated their intent to retire irrespective of this new inducement". Although the statues provided that individuals receiving these incentives would forfeit any "contractual retirement incentives," this did not demonstrate any legislative intent to make the program's benefits available to those who have already irrevocably resigned when no cost savings results.


Firefighters Rule


Firefighters Rule
Warta v City of New York, NYS Supreme Court, April 1997, Not selected for publication in the Official Reports

What is the current status of the so-called firefighters rule, which generally prevented firefighters and police officers from suing a party for injuries suffered due to the negligence of a party? Except with respect to suing municipal employers and co-workers, it has essentially been repealed by amendments to the General Municipal and General Obligations Laws.

Although the firefighters rule has been dramatically narrowed in scope, some defendants accused of negligence continue to invoke it in an attempt to avoid liability. This was the case in the Warta lawsuit. The defendants also claimed that a police officer's or firefighter's statutory cause of action is barred by the case law interpretation of General Municipal Law 205-a, which limits recovery to injuries sustained as a result of a violation of a statute or regulation regarding the maintenance and safety of premises.

Supreme Court Justice Polizzi took the opportunity to summarize the current law regarding law suits by police officers and firefighters as follows:

1. Recently enacted §11-106 of the General Obligations Law eliminates the firefighter's rule as a defense to an injured firefighter's common-law negligence claim. (Chapter 703, Laws of 1996)

2. A contemporaneous amendment to General Municipal Law 205-a effectively overrules case law holdings and permits the maintenance of a cause of action hereunder without the limitation to violations pertaining to the safe maintenance and control of premises or to instances where the alleged tortfeasors (wrongdoer) owns or controls the premises where the violation occurred.

3. The new General Obligations Law 11-106 and the amendment to General Municipal Law 205-a took effect immediately upon enactment and applies to all actions commenced or pending on and after the effective date of the statute.


Selected Fact Finders salary recommendations for impasse resolution during 1997


Selected Fact Finders salary recommendations for impasse resolution during 1997

In efforts to resolve negotiations impasses in collective bargaining involving compensation, fact finders proposed a variety of formulas, some fairly complex, to be used in determining salary increases. Some of those recommended are summarized below.

Cattaraugus-Allegany-Erie-Wyoming BOCES and BOCES Educational Support Personnel Association. Three-year contract providing for salary increases of 3.75% in the first year; 3.72% in the second year and 3.19% in the third year. The union had asked for a 15% increase for the three year period; BOCES had proposed an increase of 9.4% for the same period. Factfinder: John G. Watson.

Hadley-Luzerne Central School District and Hadley-Luzerne Teachers Association. Four annual increases of 2% each year. The Union had asked for a 5% increase each year. Also suggested were a number of changes involving employer contributions for health insurance for both active employees and school district retirees. Factfinder: Ben Falcigno

Massapequa Union Free School Districtand Massapequa Federation of Teachers. A 2.5% increase in the salary schedule each year based on adoption of a five-year contract but if employee contributions for health insurance are agreed upon by the parties, the salary schedule should be increased by 2.85% each year of the agreement. The teachers had proposed a 4% increase coupled to a four year contract; the District had proposed 1.8% each year over a three-year contract period. Factfinder: Robert Douglas

Pine Valley Central School District and Pine Valley Teachers' Association. A three-year agreement providing for a 1.81% salary increase, plus increments valued at 2.5% the first year, followed by salary increases of 4.2% and 4.01% in the second and third years of the agreement. The Association has sought a 6% increase. The District had offered a number of "off-schedule increases" plus increments, with a 4% cost of living cap, including increments, in the final year of the agreement. Also recommended: the deletion of a "sunset provision" that had halted automatic increment payments from the new agreement. Factfinder: John Watson

Port Jefferson Union Free School Districtand Port Jefferson Teachers Association. A four-year agreement, with no increase in the salary schedule in the first 18 months. Annual increment, with no increase in the salary schedule the first year. Effective February 1997, a 2.5% increase in the salary schedule plus increments to be followed by 2.75% increases and increments in the next two years of the agreement. The District had offered an average increase of 3.98% over a four-year contract period; the teachers had asked for a 4.25% average increase in salary over a three year period. Factfinder: Theodore Lang.

Corning-Painted Post Area School District and Corning Teachers Association. A four-year agreement providing increments only and $1,000 on the top step of the salary schedule in the first year, followed by 4%, 5% and 3.75% increases, including increments, in the three succeeding years. The teachers had sought a three year agreement providing an average salary increase of 4.25% while the District looked towards a four-year contract providing for a 3.98% average increase over the four years. Factfinder: Mona Miller.


November 19, 2008

Reopening a PERB proceeding


Reopening a PERB proceeding
Matter of Chenango Forks CSD, 29 PERB 3057

If a party agrees to have a proceeding "administratively closed," it cannot later argue that it was an error to reopen the proceeding. This was one of several issues included in exceptions of a PERB administrative law judge's resolution of charges filed against the Chenango Forks Central School District by the Chenango Forks Transportation Association.

The Association charged the District with violating §§209-a.1(a),(c) and (d) when it unilaterally directed both the Association's president and its secretary from discussing union business on school property.

Although the charge had been "administratively closed," the District consented to its being reopened by PERB's administrative law judge. Ultimately the administrative law judge ruled that the District had violated the Taylor Law when it unilaterally barred employees from discussing employment issues while on school property.

The District's exception to this determination contended that "the administrative law judge erred by allowing the Association to reopen the charge because the Association had not filed a second notice of claim pursuant to Education Law §3813 when the case was reopened.

PERB rejected the District's argument, succinctly commenting that "the District agreed to reopen the case and it cannot now argue that the reopening was error." According to PERB, by agreeing to the reopening, "the District waived any claim the reopening should have been denied."


Positive drug test


Positive drug test
Bruno v Sweeney, Appellate Division

A New York City bus driver, Antonio Bruno, was dismissed from his job when he tested positive for cocaine during his annual physical examination. Bruno's termination followed a hearing before an impartial arbitrator in accordance with the terms of a collective bargaining agreement.

Bruno applied for unemployment insurance benefits but his claim was rejected on the grounds that he was disqualified from receiving benefits because he had lost his employment due to his own misconduct. He challenged the Unemployment Insurance Appeals Board's affirming his disqualification.

The Appellate Division dismissed Bruno's appeal, commenting that an employee's use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect.


Retroactive membership in the NYSTRS


Retroactive membership in the NYSTRS
Candrea v Yonkers CSD, Appellate Division
Clark v Kingston CSD, Appellate Division
Kaufman v Jericho UFSD, Appellate Division
White v Freyman, NYS Supreme Court

§803 of the Retirement and Social Security Law authorizes retroactive membership in a State public retirement system if an individual otherwise eligible to join the system, when first eligible to join the system:

(i) did not expressly decline membership in a form filed with the employer;

(ii) did not participate in a procedure explaining the option to join the system in which a  form, booklet or other written material is read from, explained or distributed ...; or

(iii) did not participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

 This provision has generated a number of law suits challenging school district decisions denying teacher applications for retroactive membership in the New York State Teachers Retirement System [TRS]. As a general rule, approval of such applications would typically place the teacher in a different "retirement tier," usually with greater benefits and require the school district to pay the entire employer contribution associated with such retroactive membership.

During the relevant time periods in most §803 cases, where membership in a retirement system was not mandatory, if the employee did not join a system, the employer would not have had to pay either the employer contribution for retirement or the employer contribution towards social security on behalf of the employee.

Summarized below are several recent court rulings involving §803 claims.

        The Candrea Case

The Candrea decision turned on whether a school district had "a standard practice" of advising newly hired teachers of their right to join TRS.

Yonkers decided that Eric Candrea had been advised of his option to become a member of TRS when he was initially hired as a part-time teacher in 1975. It maintained that he was ineligible for retroactive membership in TRS because "when he was hired he had participated in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join the retirement system." Accordingly, it denied his §803 application for retroactive membership in TRS.

Providing this information, Yonkersexplained, was its standard practice in such situations.

The Appellate Division rejected Yonkers' contention. It noted that "despite the existence of this allegedly standard practice," Yonkershad previously found other teachers hired during the same time period to be eligible for retroactive membership "because they had not been afforded an opportunity to join the Retirement System."

Under the circumstances, said the Court, Yonkers' rejection of Candrea's application was arbitrary and capricious as there was no rational basis for distinguishing between Candrea's eligibility for retroactive membership from that of the other teachers who were found to be eligible.

         The ClarkCase

In this case the significant issue concerned the nature of the burden of proof that a teacher had to meet to satisfy the requirements of §803 for the purposes of retroactive membership in TRS.

Barbara Clark and three other teachers claimed that they were entitled to retroactive membership in TRS based on their part-time service with the Kingston City School District during various periods in 1970.

They completed the forms prepared by TRS which asked:

1. Did your first public employer fail to advise you of your right to join a public retirement system? and

2. Did you render continuous employment ... from the date of you first public employment to your current date of membership?

Although the four teachers answered both questions "yes" and filed the form "precisely according to instructions," Kingstonclaimed that the four, in order to prevail, also had to provide affirmative evidence that:

a. they did not expressly decline membership in a form filed with the employer;

b. they did not participate in a procedure explaining the option to join the system in the course of which written material was supplied; or

c. they did not participate in a procedure that a "reasonable person" would recognize as requiring a formal decision to join a retirement system.

Not so, said the Court. It held that the teachers had satisfied their initial burden of proof by completing and filing a timely form with TRS. This meant that the District was required to come forward with evidence in support of its claim that the teachers did not qualify for retroactive membership in TRS.

Another argument raised by Kingstonwas that "once an individual belongs to a retirement system, she surely must be aware of her right to rejoin the system" after a period of inactivity and withdrawal. This would occur upon reemployment as a part-time or substitute teacher.

Again the Appellate Division disagreed. It said that "neither an individual's prior membership in the Retirement System as a full-time teacher nor her subsequent indication that she is no longer a member of the system evidences her knowledge that she is entitled to rejoin the system by virtue of her employment as a substitute teacher or that she does not desire to join the system."

The Court sustained the Supreme Court ruling that under the circumstances Kingston's determinations "lacked a rational basis" and dismissed its appeal.

        The Kaufman Case

The Appellate Division affirmed a lower court ruling that the Jericho Union Free School District's rejection of Harriet Kaufman's application for retroactive membership in TRS was "arbitrary and capricious and with any rational basis."

The Court rejected the District's efforts to provide "further justification" for its decision in its answer to Kaufman's petition on the grounds that "judicial review of an administrative determination is limited to the grounds invoked by the administrative body" in making its determination. In other words, the District was not permitted to bolster its justification by presenting reasons that it did not cite in its final determination rejecting Kaufman's application.

         The White Case

The White case addressed a technical issue: the necessity of filing a "notice of claim" as a prerequisite to challenging a school board's rejection of an application for retroactive membership in a retirement system.

Frances White was employed as a substitute teacher with the Ossining Union Free School District ("Ossining") in September 1974. She first joined the New York State Teachers' Retirement System [TRS] in September 1976 as a Tier 3 member.

In 1994 White applied for retroactive membership in TRS effective September 1974. Approval of her application would give her Tier 2 members status. Ossining, which would have to make the employer contribution if White were qualified for retroactive membership, determined that she did not meet the §803 requirement and disapproved her application.

White sued, challenging Ossining's determination. Ossining asked the Court to dismiss her complaint on the grounds that White had neglected to file a notice of claim with the District which Ossining contended was required by §3813(1)2 of the Education Law.

Holding that White was attempting to assert a private right rather than a "public interest," the Court ruled that White's efforts to excuse her failure to file the notice of claim did not fall within any of the exceptions that would otherwise excuse this omission. Ruling that the failure to file a §3813(1)2 notice was a "fatal defect," the Court granted Ossining's motion and dismissed her appeal.

The full opinion in White follows:


         WHITE v. FREYMAN

Petitioner's motion to strike two affirmative defenses raised in response to this CPLR Article 78 proceeding commenced to challenge an unfavorable March 15, 1996 Retirement and Social Security Law 803 determination is denied.

Background and Facts

Petitioner Frances White was employed as a substitute teacher with the Ossining Union Free School District("Ossining") in September 1974. While there, she did not join the then effective and voluntary New York State Teachers Retirement system (the "retirement system"), Tier II. Thereafter, she worked for various school districts. In September 1976, White joined the then effective and mandatory Tier III retirement system which provides for, among other things, a less generous benefit package than that offered through Tier II.

In November 1994, White applied to Ossiningfor retroactive membership in Tier II of the New York State Retirement System pursuant to §803 of the Retirement and Social Security Law. Very briefly, §803 allows for retroactive membership in an earlier retirement system where an employee did not, when first eligible to join the retirement system1:

(i) expressly decline membership in a form filed with the employer; (ii) participate in a procedure explaining the option to join the system in which a Forn, booklet or other written material is read from, explained or distributed ...; or (iii) participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

After having been turned down for retroactive membership by the Ossining Assistant Superintendent and then the Ossining Superintendent, a full evidentiary hearing was held on November 17, 1995. Upon consideration of the hearing testimony and subsequently submitted briefs, the Ossining Board of Education affirmed the previous denials by written determination dated March 15, 1996. This CPLR Article 78 proceeding was commenced on July 12, 1996to upset that determination.

By verified answer and an affirmation dated August 9, 1996, respondent raises two affirmative defenses: (1) petitioner failed to file an Education Law 3813(1)2 notice of claim with the school district within three months after the accrual of her claim; and, (2) failed to allege that in her petition. This motion to strike the affirmative defenses followed.

Conclusions of Law

With narrow exception (see, infra), service of an Education Law 3813 notice of claim is a condition precedent to obtaining personal jurisdiction over a school district, even in a CPLR Article 78 proceeding (see, Education Law 3813; Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992]; Matter of Jackson v. Board of Education, Colton-Pierrepont Central School District, 194 AD2d 901 [3d Dept, 1993], lv den 82 NY2d 657). The notice of claim must be served within three months of the accrual of claim, here, admittedly, March 15, 1996.3 Absent a judicially recognized exception, or permissible leave to file a late notice of claim (see, Education Law 3813[2-a]), failure to comply with the notice of claim requirement is a fatal defect which mandates the dismissal of the proceeding (Parochial Bus Systems v. Board of Education, 60 NY2d 539, 548).

Petitioner moves to strike the affirmative defenses on the ground that the public interest exception, one of two judicially recognized exceptions to the 3813 notice of claim requirement (see, Matter of Board of Education of the Union-Endicott Central School District v. NYS Public Employment Relations Board, 197 AD2d 276 [3d Dept, 1994], lv den 84 NY2d 803), applies to her case. The scope of the public interest exception to the notice of claim requirement extends to "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" (Mills v. County of Monroe, 59 NY2d 307, 311, cert den 464 US 1018).

In Union Free School District No. 6 v. NYS Human Rights Appeal Board (35 NY2d 371, mot rearg den 36 NY2d 807), the Court deemed exempt under the public interest exception a case dealing with personnel policies and practices which discriminated on the basis of sex. The court found that the relief granted would "redound to the benefit of that teacher as well as to the benefit of other teachers similarly situated" (id. at p. 380). Also emphasized was the "public's interest in the elimination of discrimination based on sex -- a public interest duly declared by legislative enactment" (id.). Nonetheless, where a favorable disposition would not directly affect or vindicate the rights of others, an action based on unlawful discriminatory practices constitutes the vindication of a private right (see, Mills v. County of Monroe, 59 NY2d 307, 311 [action to redress employment discrimination on the basis of race]).

"The 'tenure rights' of teachers are also considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights [citations omitted]"  (Sephton v. Board of Education of the City School District of the City of New York, 99 AD2d 509, 510 [2d Dept, 1984], lv den 62 NY2d 605; Matter of Piaggone v. Board of Education, Floral Park-Belrose Union Free School District, 92 AD2d 106 [2d Dept, 1983]; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 [2d Dept, 1980]).

In Sephton (99 AD2d 509), the Court held that an action for the recovery of back pay based upon an alleged improper salary restructuring was not exempt from the §3813 notice requirement because the "vindication of private rights and duties" was being sought (id. at 510). Here, too, petitioner is "not attempting to pursue the kind of public interest that would remove the necessity of filing a notice of claim" (Matter of Jackson v. Board of Educ. Colton-Pierrepont Cent. School Dist., 194 AD2d 901, 903, supra). Fundamentally private relief, retroactive membership in an earlier tier of a retirement system with all of the benefits that it brings, is being sought on the grounds that the Retirement and Social Security Law 803 determination is null and void for reasons included in CPLR 7803(3) and (4). This proceeding lacks public policy implications inasmuch as the disposition of petitioner's claim was not intended to nor could it directly affect or vindicate the rights of others (see, Mills v. County of Monroe, 59 NY2d 307, 311)

Matter of Walton v. Board of Education of the Valley Central School District(Supreme Ct, Orange County, January 17, 1996, Owen, J. [Index No. 5777/95]) is distinguishable. There, relying on Piaggone, supra, the court ruled that a §3813 notice of claim was not required in that CPLR Article 78 proceeding because petitioner asserted that the respondent did not fulfill "a requirement imposed by law," i.e., respondent allegedly failed to provide an RSSL 803(b)(3) affidavit.4 Here, the contention is that an incorrect RSSL 803 determination was reached. Petitioner has no legal right to a determination in her favor.

Matter of Mogg v. Brentwood Union Free School District (Supreme Ct, Suffolk County, March 1, 1996, Cowan, J.) is not controlling, and is unpersuasive. Without discussion or comment, Mogg, supra, relies upon Piaggone, supra, for its holding that a §3813 notice of claim is not required in an Article 78 proceeding for retroactive membership in an earlier retirement system. As previously noted, however, Piaggone is a tenure case and, as such, is significantly distinguishable. This is especially so in light of more recent cases that have applied the §3813 notice requirement to CPLR Article 78 proceedings (see, e.g., Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992] supra [Education Law 3813 notice requirement applicable to CPLR Article 78 proceeding commenced to challenge school district's determination, after a Civil Service Law 75 hearing, to terminate an employee for, among other things, incompetency]).

A claim for monetary damages in addition to that which is a "natural concomitant" of the ultimate relief sought may very well disqualify a proceeding or action that is otherwise exempt from §3813 (see, Feinberg v. Board of Education of the East Ramapo Central School District, 78 A.D.2d 889 supra.; see also, Hermele v. Union Free School District No. 23, 167 AD2d 512 [2d Dept, 1990], lv den 77 NY2d 804 [action to recover for wrongful discharge and for reinstatement of employment constitutes a private dispute]). However, the mere absence of a claim for monetary damages in an otherwise nonexempt case does not qualify it for exemption.

The Court must reject petitioner's argument that her November 1994 RSSL 803(3) affidavit satisfies the 3813 notice of claim requirement. It is not knowledge of the wrong or underlying facts that counts, it is knowledge of the actual claim (Parochial Bus System v. Board of Education 60 N.Y.2d 539, 548 [1983]; Chesney v. Board of Education, 5 N.Y.2d 1007 [1959]; Munroe v. Booth, 305 N.Y. 426 [1953]; Thomann v City of Rochester, 256 NY 165, 172 [1931]). The affidavit precedes the earliest date on which the claim could have accrued, March 15, 1996.

The alternative relief sought, an application for leave to file a late notice of claim, must be denied. An extension of time during which to serve a notice of claim "shall not exceed the time limited for the commencement of an action by the claimant against any district or any such school" (Education Law 3813[2-a]; Matter of Board of Education of Schenevus Central School District v. Merritt Meridan Construction Corporation, 210 AD2d 854 [3d Dept, 1994]). Petitioner's September 25, 1996 application for leave to file a late notice of claim was made well over four months (see, CPLR 217) after the date the cause of action accrued, March 15, 1996.

While a pleading may constitute substantial compliance with a notice of claim requirement, that is only where, unlike here, it has been served within the requisite period of limitations (Matter of Deposit Central School District v. Public Employment Relations Board, 214 AD2d 288 [3d Dept, 1995] lv den 88 NY2d 866; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 supra).

One may question the wisdom of requiring the filing of a notice of claim within three months after the accrual of a claim cognizable under CPLR Article 78, and where there exists a mere four month statute of limitations (see, Education Law 3813; CPLR 217). However, that is a matter more properly placed before the Legislature. As the Court stated in Parochial Bus Systems v. Board of Education, supra, (60 NY2d 539 at 548):
said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue [,] [t]he courts are without power to substitute something else." (Thomann v. City of Rochester, 256 NY 165, 172 ...) Moreover, "[w]hat satisfies [a statute such as §3813 of the Education Law] is not knowledge of the wrong. What the statute exacts is knowledge of the 'claim.' " (Id.).

Nor may a claimant be relieved of "a positive statutory mandate" simply because no prejudice has resulted, "even to avoid a harsh result." (P.J. Panzeca, Inc. v. Board of Educ., 29 NY2d 508, 510 ...)

Petitioner's failure to present a notice of claim to the school district as is required by Education Law 3813 constitutes a fatal defect resulting in the dismissal of this proceeding.

Accordingly, the petition is dismissed.

The foregoing constitutes the Opinion, Decision and Order of the Court.

 Notes

(1) §803 was effective for three years, and has since expired.

(2) Education Law 3813 provides: "No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district unless it shall appear by and as an allegation in the complaint that a written verified claim upon which such action or special proceeding is founded was presented within three months after the accrual of such claim *."

(3) See, p. 11 of petitioner's motion to strike, p. 12 of respondents' memorandum of law accompanying verified answer.

(4) The court expressly declined to rule on whether a notice of claim was necessary for the judicial review of an administrative determination on the grounds of arbitrariness and capriciousness.

* The courts have identified an exception that could excuse literal adherence to the §3813 filing requirement: "substantial compliance" with the mandates of §3813. In Deposit CSD v PERB, the Appellate Division held that  although compliance with §3813 "is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge," the fact that the District had received a copy of the charges filed with PERB by the employee organization "within 90 days after the claim arose, and had filed its answer" to the allegations meant that  there was substantial compliance with the notice of claim requirements set out in §3813. According to the ruling in Deposit, "substantial compliance with Education Law §3813 is all that is required in situations where the school district has been sufficiently informed of the claim." In White's situation it could be argued that the District had substantial notice of her claim as it had made the final administrative determination denying her application for retroactive membership in TRS.

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.