A listing of case summaries by date posted is set out in the sidebar. TO SEARCH this LawBlog's more that 5,000 case summaries type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
N.B. §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
NYPPL's most recent posting is set out below.
February 29, 2012
February 28, 2012
February 27, 2012
February 24, 2012
Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate
Hearing officer recommends that employee found guilty of excessive absence be terminated from her position
* §73 permits the appointing authority, as a matter of discretion, to terminate an employee who has been continuously absent for one year or longer, regardless of whether such absence was self-imposed by the employee or flowing from the employee's having been involuntarily placed on a leave of absence by the appointing authority pursuant to §72 of the Civil Service Law [see §72.4]. In contrast to termination pursuant to §75, termination pursuant to §73 is not pejorative and the individual may apply for reinstatement to his or her former position "within one year after the termination of such disability."
The decision is posted on the Internet at:
Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds
After an investigation initiated by State Comptroller Thomas P. DiNapoli, a former investigator with the State Welfare Inspector General’s Office pleaded guilty to illegally obtaining unclaimed funds being held by the Comptroller’s Office of Unclaimed Funds.
The Comptroller maintains a site on the Internet where interested individuals, organizations or businesses may search for funds deposited with the Office of Unclaimed Funds at https://ouf.osc.state.ny.us/ouf/. Such moneys typically are sent to the Office from forgotten or unknown bank accounts, investment or brokerage accounts or insurance policies in accordance with the provisions of the Abandoned Property Law. In some cases a business or governmental agency is the owner of the money. For example, the Comptroller recently delivered $4,844.72 in unclaimed funds to the City of Syracuse.
February 23, 2012
Lane v City of New York, 2012 NY Slip Op 01257, Appellate Division, Second Department
In affirming Supreme Court’s dismissal of a dismissed probationary employee’s petition seeking reinstatement to his former position, the Appellate Division set out the following guidelines that courts consider in adjudicating such an action.
Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct
February 22, 2012
Filing a complaint about a school teacher with the school district may not be protected by an “absolute privilege”
Posner v Lewis, 2012 NY Slip Op 01323, Court of Appeals
In this tort action, the Court of Appeal said that it must decide whether defendants' course of conduct in instigating complaints to school authorities against Posner, a nontenured teacher, is entitled to an absolute privilege under Brandt v Winchell (3 NY2d 628]) that would warrant dismissal of Posner's causes of action for prima facie tort and tortious interference with prospective contractual rights.
February 21, 2012
A probationer has the burden of establishing that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law
February 18, 2012
For details, click on the text highlighted in color below.
DiNapoli Makes Property Tax Cap Information Available
Local governments and school districts are required to report the information used in calculating their tax cap for the coming fiscal year prior to adopting a budget. An estimated 4,000 local governments and school districts may be required to report this information annually. Over 2,000 local governments have already submitted their tax cap reports and that information is now available on Open Book New York, which will be updated nightly. Please note, the tax cap information found on Open Book New York reflects the data as submitted by local governments; it has not been edited or certified by the Comptroller’s Office.
DiNapoli: Village Officials Used LDC to Avoid State Procurement Laws
The village of Cornwall–on–Hudson skirted state procurement laws by using the Cornwall–on–Hudson Local Development Corporation to construct a new public works garage that was built on unsuitable land, failed to meet building codes and cost $929,000, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli.
DiNapoli: Pension Fund Gains in Third Quarter of FY 2011
The New York State Common Retirement Fund (Fund) was valued at $140.3 billion after Fund investments posted an estimated 4.83 percent rate of return for the third quarter ending December 31, 2011, according to New York State Comptroller Thomas P. DiNapoli.
DiNapoli’s Office Releases Municipal Audits
New York State Comptroller” office completed the following audits in the last two weeks:
February 17, 2012
The failure of the appointing authority to designate the §75 hearing officer in writing is a fatal jurisdictional defect
Tenure by estoppel
February 16, 2012
Refusal to work that results in the loss of employment does not constitute disqualifying misconduct if the employee’s refusal is attributable to a substantiated health problems
February 15, 2012
The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination
Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to an administrative review under the relevant collective bargaining agreement. Kahn filed an "administrative appeal." An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging that determination.
The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.
To avoid such a result, where there is an administrative appeal available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.
In this instance the Department of Education was obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment. However, the Court of Appeals decided that such reviews "stem solely from the [CBA]" and constitute ‘an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law §2573(1)(a)’ … they are not administrative remedies that [Kahn was] required to exhaust before litigating the termination of [her] probationary employment.”
Employer did not breach a “contract of employment” when it restored a probationary employee to the employee's former position
Miller v Theodore-Tassy, 2012 NY Slip Op 00940, Appellate Division, Second Department
February 14, 2012
Commissioner of Education does not have jurisdiction to consider classified service employee’s claims of alleged out-of-title work assignments
February 13, 2012
Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter
February 10, 2012
Both the New York City’s Conflicts of Interest Law and §§3020 and 3020-a of the Education Law apply to a New York City educator
February 9, 2012
Governor Cuomo and NYSCOPBA President Donn Rowe announce a tentative contract agreement between the State and NYSCOPBA law enforcement unit members
February 8, 2012
On remand the Hearing Officer, Randi Lowitt, Esq., determined that the penalty to be imposed should be a two-year suspension without pay. Hearing Officer Lowett's decision is posted on the Internet at:
Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73
The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in
A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Administrative Law
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Employment Law
- Blogging Government Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Catalog of Law Blogs
- Challenging Adverse Personnel Decisions
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- ReformNY - by NYU's Brennan Center for Justice
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
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Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.
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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.