Friday, June 23, 2017

OATH disciplinary hearing held in absentia



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

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

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

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

Posted on the Internet at:

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

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Educator terminated for a continuing pattern of inappropriate behavior involving students



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

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

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

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

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

The decision is posted on the Internet at:

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses 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

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Thursday, June 22, 2017

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


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

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

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

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

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

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

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

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

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

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

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

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

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

_________________

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

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


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

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

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

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

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

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

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

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

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

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

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

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

The decision is posted on the Internet at:

Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law


Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law
Montero v Police Assn. of the City of Yonkers, Inc., 2017 NY Slip Op 02040, Appellate Division, Second Department

Raymond Montero asked the Appellate Division to review a determination by Supreme Court that sustained the Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association [YPBA], expulsion of Montero from its membership. The Appellate Division annulled the lower court ruling, on the law, with costs, and granted Montero's petition.

YPBA had notified Montero of charges alleging he was guilty of certain misconduct and of a hearing scheduled to consider such charges. Montero chose not to appear at the hearing. Apparently YPBA conducted Monero's hearing in absentia and made a determination to expel him from membership in the organization.

Citing Matter of Kelly v Northport Yacht Club, Inc., 44 AD3d 858, the Appellate Division set out the standard for assuming jurisdiction in the matter as follows: "[W]here the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly."

Here, said the court, YBPA determined that Montero committed conduct that was "prejudicial to the welfare of the Association," in violation of the bylaws, was arbitrary and capricious.

Montero was charged with providing "information" to the author of articles published online, providing that author with an email from the YPBA's president to the members, publishing that email online himself, with comments, and being involved in an altercation with another member. The court noted that "Other than the single identified email, there is no basis in the record on which to determine what, if any, other information was provided to the author of the articles by [Montero], and whether such unidentified information was detrimental to [YPBA]."

Although YPBA characterized the email as "confidential," the Appellate Division opined that there is no reason to conclude that the email, which was sent to all of the YPBA's members, was confidential as the email merely contained a statement indicating that the sharing of the email was "discouraged." Further, said the court, while Montero's was alleged to have disseminated "certain misinformation," during a time when YPBA was negotiating a contract with the City of Yonkers complicated the contract negotiations, YPBA failed to explain how the shared email, or the comments made by Montero, had such an effect or was detrimental to the welfare YPBA.

Quoting from Polin v Kaplan, 257 NY 277, the court observed that "If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership. . . . The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by permitting free expression and free political opposition than it may ever lose from any disunity that it may thus evidence."

Lastly, the court said that there was no rational basis for the conclusion that a brief physical altercation between Montero petitioner and another YPBA member "prejudice[d] the welfare" of organization.

The decision is posted on the Internet at:

Tuesday, June 20, 2017

Applying the Doctrine of Abatement in a criminal action


Applying the Doctrine of Abatement in a criminal action
United States v Libous, USCA, 2nd Circuit, Docket #15-3979

Under the Doctrine of Abatement, the government has no right to retain fines imposed pursuant to a criminal conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to [1] withdraw his then pending appeal; [2] vacate the underlying judgment of conviction of making false statements to the FBI; and [3] remand the matter to the district court for dismissal of the indictment and a order refunding the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a two-year term of probation on Libous, whose physicians had determined had less than a year to live, along with a $50,000 fine imposition of the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established Doctrine of Abatement, ab initio, when a convicted defendant dies pending an appeal as of right, his [or her] conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated."

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, "a defendant does not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right, suggesting that it may distinguish the impact on the Doctrine in cases of suicide from the impact of the Doctrine in the event of death as the result of natural causes, accident, or events other than suicide while such an appeal is pending.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

Determining if an individual is an employee of an employer



Determining if an individual is an employee of an employer
Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;
2. The payment of salary or wages by the entity;
3. The power of dismissal of the individual by the entity; and
4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

Monday, June 19, 2017

Claiming the affirmative defense of "privilege"


Claiming the affirmative defense of "privilege"
Casey v State of New York,  2017 NY Slip Op 01922, Appellate Division, Third Department

Office of Court Administration's [OCA] sole contention is that the Court of Claims court should have found that its "detention" of Colleen Casey, a senior court officer, was privileged* on the ground that a designated superior's authority to command Casey through lawful orders carried with it a privilege to keep Casey under the supervisor's supervision and to control her movements when Casey did not immediately comply with the lawful order to surrender her personal firearms.

The Appellate Division, observing that OCA bore the burden of proof to establish any claim of an affirmative defense of privilege, said that "There is nothing in this testimony that supports [OCA's] current claim that [Casey] was so noncompliant that it was reasonably necessary to confine her or restrict her movements to ensure her compliance, or so distraught that close supervision was required to ensure her safety and that of others until the firearms [sought] were secured."

OCA, relying upon Casey's testimony in her Court of Claims action to support its claim of privilege, argued that the testimony that Casey she was upset and uncooperative establishes that it was reasonable under the circumstances for the supervisor and the other officers to confine her and restrict her movements. However, said the Appellate Division, as it "previously noted, it was [OCA's] burden, not [Casey's], to prove the claim of privilege."

Having made no claim at trial that the officers' actions were based in any way upon Casey's alleged insubordination or required by any threat to public safety, and having instead presented contradictory evidence to the effect that Casey consented to almost everything she was directed to do, "[OCA] cannot now meet its burden by relying on the same testimony that it sought to discredit at trial."

Addressing OCA's contention that the supervisor "was privileged to confine [Casey] restrict her movements," under the governing rules and procedures to ensure Casey's compliance with lawful orders, the Appellate Division observed that "the rules that require court officers to comply with their supervisors' lawful orders and to turn over their firearms when directed to do so are solely directed at the subordinate officer's obligations, and do not directly address the extent of a supervisor's authority to compel compliance."

Further, said the court, "Nothing in any of the provisions relied upon by [OCA] expressly authorizes a supervisor to use confinement or force to compel a subordinate to comply with an order" nor do the rules that require an officer to comply promptly with lawful orders unequivocally forbid all resistance to every order. Rather the rules provide that the officer "shall not obey any order which is inconsistent with the law," must request clarification or confer with a supervisor when in doubt as to whether an order is lawful, and must obey an order that he or she believes to be unlawful only if the supervisor fails to modify the order after being respectfully informed of the subordinate's belief that it is unlawful.

Accordingly, the Appellate Division said that it agreed with the Court of Claims conclusion that OCA did not meet its burden to that the conduct of the officers in confining Casey and restricting her movements was "reasonable under the circumstances and in time and manner," and therefore OCA failed to prove that its supervisor's conduct was privileged.

The decision is posted on the Internet at:



* A particular benefit, advantage, or immunity available to a particular entity, person or class of persons.

Saturday, June 17, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017

Click on text highlighted in color  to access the full report


Audits of State Departments and Agencies

The AIDS Institute has taken several steps to update its procedures to address problems with contractor cost claims that were identified prior to this audit. However, the institute needs to further improve its internal controls to provide effective oversight and monitoring, and ensure that claimed contractor expenses are program appropriate and consistent with contract requirements.

DOH is generally meeting its obligations for conducting background checks on unlicensed employees of nursing homes, adult care facilities (ACF), and home health care (HHC) providers, according to state requirements. However, auditors identified 24 criminal history record check applicants whose determination letters were not completed on time. As a result, the individuals could have been allowed to work for periods ranging from 2 months to as long as 28 months. Of these, auditors found only eight applicants (who were ultimately denied eligibility) actually worked on a provisional basis, for periods between 3 and 14 months while their background checks were pending.

The 80/20 program provides low-interest financing to multifamily rental developers who commit to designating at least 20 percent of a development's units to low-income households. Based on the rents charged and the regulatory agreements for our four sampled developments, auditors concluded that the proper numbers of affordable apartment units were made available to low-income tenants. However, auditors found higher earners with apartments and several areas that could use improvement.

An initial audit report issued in December 2015, identified $710,284 in rebate revenues from agreements with 114 drug manufacturers that were not credited to the state Department of Civil Service from Jan. 1, 2011 through Dec. 31, 2013. In a follow-up report, auditors found UHC officials made progress in addressing the issues identified in the initial audit. This included the remittance of $338,649 in drug rebate revenue to Civil Service. In addition, UHC officials agreed to remit another $67,386 in rebate revenues.

An initial audit report issued in November 2016, found that UHC did not remit $1,498,719 in drug rebate revenue to the Department of Civil Service as it was required to do during from Jan, 1, 2010 through Dec. 31, 2013. In a follow-up, auditors found UHC officials had remitted the rebate revenue to Civil Service.

Based on testing, auditors found the Port Authority complied with the terms related to base rent payments to the city. However, the Port Authority had not fully complied with the terms of the ancillary agreements, which included an obligation to provide information and support to the Airport Board.

For the fiscal year ended June 30, 2014, Elmcrest claimed $54,250 in ineligible costs for the rate-based preschool special education program that it operated. The ineligible costs included: $18,264 in personal service costs, including bonuses and employee fringe benefits; $16,578 in overstated expenses; $12,911 in improperly allocated costs; and $6,497 in other than personal service costs, including undocumented vehicle costs, ineligible consulting services costs and non-reimbursable auditing fees. Elmcrest did not disclose related-party transactions with two vendors as required.

An initial audit report issued in October 2015 found that for the period from January 1, 2015 to December 31, 2016, the courts ordered the installation of 1,084 Ignition Interlock Devices (IIDs) for offenders under the Probation Department's supervision. Auditors found only a small percentage of the IIDs were installed in the cars of persons cited for alcohol-related motor vehicle violations and that probation officers often did not provide sufficient oversight of DWI offenders. Auditors also found that referral of probation violators were not made to the appropriate courts and district attorneys as required. In a follow-up, auditors found that probation officials made considerable progress in correcting the problems that were identified. However, additional improvements are still needed.

Variety, a not-for-profit organization located in Syosset, is a provider of special education services. Variety offers a range of special education services and programs to children with disabilities from birth to eight years of age. For the fiscal year ended June 30, 2014, auditors identified $6,719 in other-than-personal-service costs that did not comply with the requirements for state reimbursement.

During 2016, the tax department processed almost 7.6 million refunds totaling over $9.6 billion. After the tax department processes refunds, DiNapoli's office is charged with serving as a second set of eyes to ensure that only proper refunds are paid. Auditors returned 12,335 refunds totaling almost $43.9 million to the department that it had approved for payments. DiNapoli's auditors found red flags and other questionable information that led them to determine that the refunds were fraudulent or inappropriate.

Auditors identified $1,224,077 in inappropriate claims. They also identified two high-dollar outlier claims that resulted in $2,633,204 in total savings. For these claims in particular, board staff members entered incorrect data in fields used to calculate the payment amount resulting in artificially higher amounts to be paid. Auditors also reviewed claims processed by the board on a post payment basis to identify potential duplicate payments. For calendar year 2016, they identified 210 potential duplicate payments totaling $344,000.


Municipal Audits

The board needs to improve its policies and procedures over credit card use and travel related expenditures to ensure that all such expenditures are adequately supported and for necessary district purposes. Credit card charges totaling $32,860 were either not adequately supported or did not comply with the district's purchasing policy. In addition, credit card charges for conferences totaling $6,185 were not supported by proof of attendance and district officials paid travel credit card charges for meals for individuals who were not authorized by the board to travel.

A total of $5,681 in documented collections received during the audit period had not been deposited into a court bank account. The justices did not provide adequate oversight of the clerks responsible for receiving, recording and reporting cash receipts, and did not compare manual cash receipt records to the bank deposits. Accurate and complete bail records were not maintained and bank reconciliations and accountability analyses were not performed. The justices did not establish policies and procedures for enforcing unresolved traffic tickets.

The board has not established an internal control environment that fosters compliance and transparency due to its lack of policies, guidelines and monitoring. For example, claims to be paid were not presented on an abstract, and board minutes did not indicate that the board authorized, via resolution, the payment of claims audited and reviewed. In addition, the district has not submitted its statutorily required financial statements to the Office of the State Comptroller.

The village accumulated significant fund balances without clear plans to use this money. Over the last three years, the general fund balance increased by 42 percent to $338,000, or 159 percent of actual expenditures, and the water fund balance increased by 58 percent to $238,700, or 240 percent of actual expenditures.

For access to state and local government spending, public authority financial data and information on 130,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.

Friday, June 16, 2017

The Plausibility Standard


The Plausibility Standard
Irrera v Humpherys, USCA, Second Circuit, Docket #16-2004

The Plausibility Standard was addressed the United States Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, and essentially attempts to establish the "bright line" between speculative allegations and those of sufficient plausibility to survive a motion to dismiss the action. In Irrera the Second Circuit explained that "... Iqbal instructs [that] courts are to determine whether a complaint contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Dr. Joseph Irrera [Plaintiff] filed Title VII against Dr. Douglas Humpherys and the University of Rochester [Defendants] alleging that he had suffered unlawful retaliation as a result of his filing a complaint of sexual harassment. The district court granted Defendants' motion to dismiss.

The Second Circuit applied the Plausibility Standard to Plaintiff's retaliation claim and held that it was plausible that he was denied a teaching position after he declined sexual approaches from the man who was his teacher and the department chair.

Accordingly, the Second Circuit Court of Appeals vacated in the District Court's ruling part and remanded the matter for its further consideration of Plaintiff's retaliation claims.

The decision is posted on the Internet at:

Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes


Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes
Lawrence Teachers' Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, Appellate Division, Third Department

The Lawrence Union Free School District [District)] implemented a universal prekindergarten program pursuant to Education Law §3602-e. Initially program tasks were performed by employees working in a collective bargaining unit exclusively represented by the Lawrence Teachers' Association's [Association] but in 2012 the District unilaterally contracted with an outside eligible agency to staff and operate the program. The Association filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the District had violated Civil Service Law §§204[2] and 209-a[1][d] of the Public Employees' Fair Employment Act, commonly referred to as the "Taylor Law," by outsourcing the work without first negotiating the matter in good faith with the Association.

A PERB Administrative Law Judge [ALJ] concluded that the provisions of Education Law §3602-e vitiated the District's duty to negotiate in good faith and dismissed the charge. PERB affirmed the ALJ's ruling and the Association initiated a CPLR Article 78 proceeding challenging PERB's decision. Supreme Court annulled PERB's determination and remitted for further proceedings, holding that nothing in Education Law §3602-e "defeat[ed] the District's bargaining obligations . . . under the Taylor Law." The District appealed.

Although the outsourcing of work performed exclusively by represented employees is a mandatory subject of bargaining under the Taylor Law, rendering a failure to bargain an improper employer practice under Civil Service Law §209-a(1)(d), PERB had concluded that the outsourcing in this instance was not a mandatory subject of bargaining in view of the provisions set out in Education Law §3602-e(5)(d). That provision authorizes a school district "to enter any contractual or other arrangements necessary to implement" a prekindergarten program plan "[n]otwithstanding any other provision of law."*

The Appellate Division said that its review of the statutory landscape "nevertheless leads us to agree with PERB's interpretation." The court explained that the main goal in statutory construction is to discern the will of the Legislature and, in this instance, the statute provides for a universal prekindergarten program "designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies." Thus, said the court, a school district is free to avoid collaborative efforts in crafting a prekindergarten program plan as regardless of the precise plan devised, a school district is empowered to "enter any contractual or other arrangements necessary to implement" it "[n]otwithstanding any other provision of law."

Significantly, the Appellate Division noted that §3602(5)(d) grants a school district the power to make necessary arrangements "[n]otwithstanding any other provision of law," which, said the court, is the "verbal formulation frequently employed for legislative directives intended to preempt any other potentially conflicting statute, wherever found in the [s]tate's laws."

The court held that the addition of that language "signals the intent of the Legislature to override any statutory conflicts to the exercise of the school district's contracting power, including the Taylor Law bar to outsourcing work absent bargaining beforehand."

The Appellate Division opined that "[t]here is no absolute bar to collective bargaining over" the outsourcing of prekindergarten work to an outside agency and an agreement reached after collective bargaining on the subject is enforceable. However, the court observed that the clear language of Education Law §3602-e compels the conclusion that negotiation is not required to begin with and thus PERB was correct when it determined that the absence of negotiation in this instance did not constitute an improper practice under the Taylor Law.

In contrast, the Appellate Division noted that PERB's decision with respect to the Association's allegations concerning an improper practice within the meaning of the Taylor Law does not preclude Association from demanding "impact negotiations" concerning the program in the future.

* The Appellate Division's decision noted that "[a]s PERB itself recognizes, the interplay between the Taylor Law and Education Law §3602-e presents a question of pure 'statutory construction [that] is a function for the courts[, and PERB] is accorded no special deference in [its] interpretation of statutes'."

The decision is posted on the Internet at:

Thursday, June 15, 2017

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"


Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"
Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss


Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss
England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

Wednesday, June 14, 2017

The anatomy of a discrimination action


The anatomy of a discrimination action
Clarke v Metropolitan Transp. Auth., 2017 NY Slip Op 04421, Appellate Division, Second Department

In processing an employment discrimination claim "A plaintiff alleging discrimination in employment has the initial burden to establish . . . that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination"

If the individual makes such a prima facie showing, the burden of going forward shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

The burden of going forward then shifts back to the plaintiff "to establish every element of intentional discrimination, and if the employer had advanced a "legitimate, nondiscriminatory reasons for the challenged actions," to show that the employer's explanation or explanations were pretextual.

In this action seeking to recover damages for alleged employment discrimination Supreme Court, granted the Metropolitan Transportation Authority's [MTA] motion for summary judgment dismissing Edmond Clarke's causes of action alleging employment discrimination on the basis of age and sex, and hostile work environment.
The Appellate Division, in response to Clark's appeal challenging the Supreme Court's ruling, affirmed the lower court's determination.

The Appellate Division explained that in this instance MTA was, prima facie, entitled to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the basis of age and sex by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual.

A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." However, said the court, "Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists."

Further, noted the Appellate Division, "The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so."

MTA, said the court, "established [its] prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging the existence of a hostile work environment by demonstrating that the conduct and remarks about which Clark complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of his employment at MTA.

The decision is posted on the Internet at:

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination


Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination
Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

Thomas Turco, a member of the Civil Serv. Empls. Assn., Inc. [Union], sustained an on-duty injury to his left shoulder. After Turco was out of work for more than one year on Workers' Compensation leave, the district terminated his employment pursuant to Civil Service Law §71. Turco filed a grievance, alleging that such termination violated the CBA. After Turco's grievance was denied, the Union filed a demand for arbitration. Ultimately the Appellate Division granted the district's motion for a temporary stay of the arbitration proceedings.

Conceding the general policy favoring the resolution of disputes by arbitration, the Appellate Division held that some matters, because of competing considerations of public policy, cannot be heard by an arbitrator, explaining "If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'."

In this instance the district contended that arbitration of the subject matter of the dispute was prohibited by public policy, and in effect, decisional law. The Appellate Division agreed citing Matter of Economico v Village of Pelham (50 NY2d 120, overruled on other grounds Matter of Prue v Hunt, 78 NY2d 364). In Economico the Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination."

The district terminated Turco's employment pursuant to Civil Service Law §71 which provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work.*

The Appellate Division noted that Civil Service Law §71 establish "the point at which injured civil servants may be replaced," as it "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." The same is true, said the court, with respect to the termination of an individual absent on §72 leave for “ordinary disability” -- a disability unrelated to work -- pursuant to §73 of the Civil Service Law.**

Thus, concluded the court, the abrogation of the authority granted to a public employer by the statute to terminate the employee absent on §71 leave is implicated in Turco’s situation. As an arbitrator would not be able to fashion a remedy that would not violate public policy in this matter, the Appellate Division ruled that “a preemptive stay of the instant matter is not improper” and Supreme Court should have granted the school district’s petition to permanently stay arbitration.

The decision is posted on the Internet at:


* N.B. Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

** Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as both §71 and §73, in pertinent part, specifically provide that an individual terminated from a §71 or a §72 leave, as the case may be, “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age


Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age
Geller v. Markham, 635 F.2d 1027.

In Geller a School Board policy of not initially employing teachers above “Step 5” (i.e. teachers having more than 5 years of teaching experience) was held to constitute unlawful discrimination because of age by the 2nd Circuit Court of Appeals.

The rejected teachers were able to show that 93% of teachers over age 40 had more than 5 years of teaching experience but only 60% of teachers under age 40 had more than 5 years of such experience.

Thursday, May 25, 2017

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits


An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits
Matter of Derfert (Commissioner of Labor), 2017 NY Slip Op 04016, Appellate Division, Third Department

To be eligible for unemployment insurance benefits, claimant must be "ready, willing and able to work." Further, whether a claimant is available for work ordinarily presents a question of fact for the Unemployment Insurance Appeal Board [Board] to determine and its decision will be sustained provided it is supported by substantial evidence in the record.

The uncontroverted evidence in this appeal from the Board's denial of claimant's application for unemployment insurance benefits for the period May 2, 2015 through June 7, 2015, was that claimant did not report to work, with the employer's approval, because a former boyfriend was physically and verbally abusing her. Such abuse included calling claimant on a daily basis and leaving threatening and disparaging voicemail messages and regularly sat in a car outside or near her home waiting for her to emerge.*

Although the Board ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment, the Appellate Division said that it disagreed with the Board ruling that claimant's leave of absence "necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work."

The court, citing Labor Law §593(1)(b)(i), explained that the Legislature had provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment "due to any compelling family reason," which includes "domestic violence . . . which causes the individual reasonably to believe that such individual's continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family."

The genesis of §593(1)(b)(i) was a ruling by a New Jersey appeals court that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits. The Appellate Division said that §593(1)(b)(i) indicated "the legislative intent remained to ensure that 'individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits.'"

The Board had, in this instance, rejected the claimant's application for benefits notwithstanding the claimant's uncontroverted testimony that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend.  

The Appellate Division disagreed with the Board's holding that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law §593(1)(b), is "unavailable" for or unwilling to work and is, therefore, ineligible for unemployment insurance benefits under Labor Law §591(2). The court said such a ruling "contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits."

Accordingly, the court ruled the Board should not have found claimant to be ineligible for unemployment insurance benefits due to unavailability. It then reversed the Board's determination and remanded that matter to the Board "for further proceedings not inconsistent with this Court's decision."

* The decision notes that such abuse commenced after a "stay-away order of protection" expired and claimant had been unsuccessful in obtaining a new order.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_04016.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.
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Wednesday, May 24, 2017

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss


Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss
England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03948.htm

Monday, May 22, 2017

Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court


Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court
Source: Office of the Governor

Governor Andrew M. Cuomo today appointed the Honorable Rolando Acosta as Presiding Justice of the Appellate Division for the First Judicial Department and elevated nine elected Supreme Court Justices from across New York to the four Appellate Departments of New York State.

In the Appellate Division-First Department Governor Cuomo designated Associate Justice Rolando Acosta to Presiding Justice of the First Department-Appellate Division, and appointed Supreme Court Justices Cynthia Kern, Peter Moulton, Jeffrey Oing and Anil Singh to fill four Associate Justice vacancies. The First Department includes New York and Bronx counties.

For Appellate Division-Second Department the Governor designated Supreme Court Justices Linda Christopher and Angela Iannacci to fill two Associate Justice vacancies on the Appellate Division-Second Department.  The Second Department comprises a ten-county downstate region that includes Kings, Queens, Richmond counties, Long Island and the lower Hudson Valley.  

Appoints to the bench in the Appellate Division-Third Department are as follows: Supreme Court Justices Stanley Pritzker and Philip Rumsey will fill two Associate Justice vacancies on the Appellate Division-Third Department.  The Third Department covers twenty-eight counties in the Eastern and Northern portions of Upstate New York, ranging from the mid-Hudson Valley to the Canadian Border and as far west as Schuyler and Chemung counties in the Southern Tier.  

In the Appellate Division-Fourth Department Governor Cuomo designated Supreme Court Justice Joanne Winslow to fill an Associate Justice vacancy on the Appellate Division-Fourth Department.  The Fourth Department encompasses twenty-two Upstate Counties in the Western and Central portions of the State, stretching as far north as Jefferson County.

Each of the designated Justices were chosen among candidates reviewed and advanced for consideration by Judicial Screening Committees from one of the four Appellate Departments across New York.  These Committee’s undertook a thorough review of all applications and written material, including conversations with numerous practitioners familiar with the candidate’s career and job performance.  In addition, the Committee conducted in-person interviews of dozens of elected Supreme Court justice candidates from across the State, with only those applicants deemed “highly qualified” by the Committees submitted to the Governor for consideration for appointment to Appellate Division.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Presiding Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.

Brief biographies of these appointees are set out below:


Appellate Division-First Department

Honorable Rolando T. Acosta

Justice Acosta was elected New York State Supreme Court Justice in 2002 in the 1st Judicial District, and was appointed to the Appellate Division in 2008.  His judicial career began in 1997 as a New York City Civil Court Judge, where he spearheaded the creation of the Harlem Community Justice Center.    Prior to his judicial service, he held various posts with the Legal Aid Society, including Attorney-in-Charge of the largest civil trial office and Director of Government.  Justice Acosta has also served as Deputy Commissioner for Law Enforcement for the New York City Commission on Human Rights. In addition to his judicial responsibilities, Justice Acosta has been an active community servant and worked tirelessly to enhance the legal profession for all participants.  He has served as the President of the Latino Judges Association, during which time he was a mentor and teacher with the Latino Community, and as the Vice President of the New York City Bar Association.  He was selected as the 2004 Judge of the Year by the National Hispanic Bar Association, and is currently a member of the New York State Commission on Judicial Conduct, the Chief Judge’s Task Force to Expand Access to Civil Legal Services in New York, and the City Bar’s Council on the Profession. Justice Acosta was raised in the South Bronx and Washington Heights, after having emigrated from the Dominican Republic at age 14.  He is a graduate of Columbia College and Columbia University School of Law.  He currently serves as a Trustee of Columbia University and as a member of The Dean’s Council of Columbia Law School.

Honorable Cynthia S. Kern

Justice Kern has been a jurist since 2000 when she was first elected to the New York City Civil Court.  In 2008, she was designated an Acting Supreme Court Justice for the Civil Branch in New York County and was re-elected to City Civil Court in 2010.  The next year she successfully ran to fill a vacancy for New York Supreme Court Justice in the First Judicial District and has continued in that capacity since her election.  Prior to taking the Bench, Justice Kern was a practicing attorney for 15 years.  She began as a litigation associate with the law firm of Rosenman, Colin, Freund, Lewis & Cohen, before taking a similar position with Moses & Singer.  As a civil litigator, she focused on commercial and real estate litigation.  In 1992, she became the Principal Court Attorney for the Honorable Joan B. Lobis, New York Supreme Court.  Justice Kern graduated from the State University of New York at Stony Brook in 1982 and received her law degree from New York University School of Law in 1985.

Honorable Peter H. Moulton

Justice Moulton first became a jurist when elected as a Civil Court Judge in New York County on 2003.  In April 2010, Justice Moulton was appointed to be an Acting Supreme Court Justice of the Supreme Court, New York County.  He subsequently was elected to the Supreme Court in 2013.  As a judge, he has also held several leadership positions, including the Supervising Judge of the Civil Court, New York County from November 2010 through January 2014, and since March 2015 has served as both the Administrative Judge for Civil Matters, First Judicial District, and the Coordinating Judge of the New York City Asbestos Litigation.  Prior to sitting on the bench, Justice Moulton was the Principal Law Clerk to the Honorable Leland DeGrasse, Supreme Court Justice from 1995 to 2003.  He began his legal career as a law clerk to Judge Charles E. Stewart, Jr. in the Southern District of New York from 1986 to 1988, before joining the New York City Law Department’s Affirmative Litigation Division as a Staff Attorney.  Justice Moulton graduated from Stanford University in 1983 with a B.A. in International Relations and received his J.D. from Columbia Law School in 1986.

Honorable Jeffrey K. Oing

Justice Oing was elected to serve as a New York City Civil Court Judge in January 2004.  In 2011, he was elected to the Supreme Court of the State of New York in the 1st Judicial District and assigned to the Commercial Division.  Prior to taking the bench, he served as Deputy General Counsel to the New York City Council in 2002 and 2003, and also served as Deputy Director of the New York City Districting Commission.  From 1993 to 2002, Justice Oing worked in the New York Supreme Court in a variety of capacities, including as Law Secretary to Justice Walter B. Tolub (2000-02), Principal Appellate Court Attorney for the First Department (1998-2000), Law Secretary to Justice Marilyn G. Diamond (1995-98), and a Principal Court Attorney (1993-95).  In 1992, Justice Oing served as an Assistant Counsel to New Jersey Governor James J. Florio.  Prior to his public sector legal career, he was an associate at the New Jersey firm of Herold & Haines and began his career with the law firm of Donovan Leisure Newton & Irvine in 1990.  Justice Oing graduated from Columbia College in 1986 with a B.A. in English and received his J.D. from New York University School of Law in 1989.

Honorable Anil C. Singh

Justice Singh has been a jurist since 2003, after being elected as a New York City Civil Court Judge in 2002.  He was designated an Acting Supreme Court Justice in 2010 and was elected to his current role as a New York State Supreme Court Justice in the 1st Judicial District in November 2013.  In April 2015, Justice Singh was appointed to the Commercial Division.  Prior to taking the bench, Justice Singh clerked for the Honorable Alice Schlesinger from 1987 to 2002.  Justice Singh was born in Gazipar, India in 1958 and immigrated to the United States in 1976 and upon this designation, he becomes the first Indian-American elevated to the Appellate Court in New York.  He graduated from Lawrence University in 1980 with a B.A. in Political Science and History and received his J.D. from the Antioch School of Law in 1986. 


Appellate Division-Second Department

Honorable Linda J. Christopher

Justice Christopher has been a jurist since 2002 when she began serving as Acting Justice for the Villages of Upper Nyack and Grandview.  In 2005, Justice Christopher was elected to the Rockland County Family Court where she presided through 2010.  While serving as a Family Court Judge, she also served as Acting Supreme Court Justice for the Integrated Domestic Violence Court from 2006 through 2010.  Since 2011, Justice Christopher has been a Supreme Court Justice and currently serves as the Supervising Judge for Matrimonial Matters for the Ninth Judicial District.  She began her legal career in 1980 as a law clerk for the Honorable Orelle Weeks in Denver Juvenile Court, followed by taking an Associate position with the law offices of Jerome Trachtenberg.  She also served briefly as a Hearing Examiner for Rockland County Family Court before starting her own practice in 1986.  Justice Christopher was in private practice with the Law Offices of Linda Christopher from 1986 to 1992, partnered in the firm of Christopher and Draine from 1992 to 1996, before returning to her private practice until her election to Family Court in 2004.  Justice Christopher graduated from the University of Colorado in 1976 majoring in Political Science before earning her J.D. from Antioch School of Law in 1980.

Honorable Angela G. Iannacci

Justice Iannacci has served as a member of the bench since 2004, when she was elected to Family Court in Nassau County.  Two years later, she was elected a Supreme Court Justice in Nassau County, and currently serves as Associate Justice for the Appellate Term in the 9th and 10th Judicial Districts, a position to which she was appointed in 2009, as well as continuing her Supreme Court docket in the 10th Judicial District.  Prior to taking the bench, Justice Iannacci held several legal positions including Principal Court Attorney to the Honorable Allan L. Winick, as Hearing Officer in Small Claims Assessment Review Proceedings, and fifteen years of extensive private practice with AIG, Rossano, Mose, Hirschhorn & Corleto, P.C., in Garden City, NY, and Gordon & Silber, P.C., in Manhattan concentrating in personal injury, medical malpractice and general liability matters.  She also maintained a solo general practice, Angela G. Iannacci, P.C., of Great Neck, NY while serving as a Hearing Officer from 1996-2001.  Additionally, she has served on the Judicial Committee on Women in the Courts, the NYS Anti-Discrimination Panel, NYS Office of Court Administration’s Best Practices Committee for Matrimonial Judges, the NYS Domestic Violence Task Force, and the NYS Special Commission on Fiduciary Appointments.  Justice Iannacci received her B.A. from George Washington University in 1983 majoring in Political Science and Economics, and her J.D. from Pace University School of Law in 1986. 


Appellate Division-Third Department

Honorable Stanley L. Pritzker

Justice Pritzker has been a jurist since 2005, taking the bench as a multi-court judge for the County, Family, Surrogate, and Drug Treatment Courts in Washington County.  In 2007, he was also designated an Acting Supreme Court Justice presiding over civil actions in Washington County.  In 2013, Justice Pritzker was elected as a Justice of the Supreme Court for the 4th Judicial District.  Prior to his judicial career, Justice Pritzker was in private practice for nearly two decades handling civil, municipal and criminal litigation matters.  He also has extensive experience as a children’s attorney as an advocate in juvenile delinquency, PINS, divorce, custody neglect, and abuse proceedings.  Justice Pritzker began his professional career as a social worker in New York City while attending law school during the evenings.  He graduated from the State University of New York at Buffalo in 1978 with a B.A. in Philosophy and Psychology and earned a Masters degree in Social Work from the same institution in 1980.  He received his law degree from St. John’s University Law School in 1986.

Honorable Philip R. Rumsey

Justice Rumsey was first elected as a Justice of the Supreme Court for the Sixth Judicial District in 1994 and was re-elected to the bench in 2007.  Prior to becoming a jurist, Justice Rumsey practiced law for nearly two decades in both the private and public sectors, beginning as an Assistant District Attorney in Cortland County in 1976.  Other public service roles that he has served include, Assistant County Attorney for Cortland County, Attorney with the Cortland Housing Authority, Staff Counsel for the New York State Senate Standing Committee on Agriculture, Legislative Counsel for New York State Senator James L. Seward, and Town Attorney for the Town of Cortlandville.  He was also a Partner in the law firm of Ryan & Rumsey until taking the bench in 1994.  Justice Rumsey has been a member of the New York Pattern Jury Instructions Committee since 2008, and served in the New York State Army National Guard from 1971 to 1977.  He graduated from Hamilton College in 1971 with a B.A. in Geology and received his J.D. from Syracuse University School of Law in 1975. 


Appellate Division-Fourth Department

Hon. Joanne M. Winslow

Justice Winslow was elected as a Justice of the Supreme Court for the Seventh Judicial District in 2008.  She was assigned to the Matrimonial Part until 2011, before assuming her current assignment in Criminal Part, where she presides over felony indictments from arraignment through sentencing, as well as handling other legal matters.  Prior to her election to the bench, Justice Winslow spent over two decades as an Assistant District Attorney with Monroe County, finishing her tenure at the DA’s office as Bureau Chief for Major Felonies.  Justice Winslow has been recognized for both her professional and civic service activities, receiving accolades for distinguished and dedicated service from Rochester Police Department, Monroe County District Attorney’s Office, Monroe County Sheriff’s Office, and Boy Scouts of America.  This past December, Chief Judge Janet DiFiore named Justice Winslow to serve on the Richard C. Failla LGBTQ Commission.  She graduated from Springfield College in 1981 with a B.S. in Social Studies & Secondary Education, before receiving her J.D. from Albany Law School in 1986.
  

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

The Discipline Book at http://thedisciplinebook.blogspot.com/

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

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

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

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