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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

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.


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.
  

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals


An employee may be subjected to disciplinary action for misusing his or her sick leave accruals
1. Decisions of the Commissioner of Education, Decision 11,111
2. NYC Office of Administrative Trials and Hearings [OATH], OATH Index No. 1468/17

Typically "attendance rules" for public employees permit the employee use his or her sick leave accruals to absent himself or herself from work in the event of personal illness, to care for a family member, including an opposite sex or a same-sex partner or a same-sex spouse, who is ill, for medical appointments, obtaining and training a medical service animal, in connection with pregnancy and other medical situations.

Some jurisdictions permit an employee to absent himself or herself from work without charge to leave credits in the event he or she is subjected to a "medical quarantine" while the availability and use of paid sick leave, sick leave at one-half pay and sick leave without pay by employees in a "collective bargaining unit" pursuant to an employer's "attendance rules" may be subject to provisions set out in a collective bargaining agreement. 

In any event, disciplinary action may be taken being taken against the employee who misuses his or her sick leave benefits.

For example, in Decisions of the Commissioner of Education #11,111, a teacher appealed a disciplinary hearing panel's finding her found guilty of "falsifying records" based on her misusing "family sick leave" benefits and suspending her without pay for nine and one half months.

The panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the school district’s spring recess. The teacher, however, chanced to meet her principal at an "out of state" vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 

In OATH Index No. 1468/17 OATH Administrative Law Judge John B. Spooner found that a special officer violated his employer's rules when he absented himself from work for seven days using his sick leave accruals in order to remain on the payroll while attending "paid training sessions" being given by a private security company.

Judge Spooner rejected the officer’s claim that he was not working for the private company when he attended its training sessions, explaining that the officer’s signature on a letter accepting a position with the private company and his attending its required pre-employment training program constituted the commencement of an employment relationship with the company.

The judge also sustained charges alleging that the officer disobeyed instructions not to engage in  "outside work" without the prior approval of the Agency.

The ALJ recommended that the officer be terminated from his position with the Agency.

The decision is posted on the Internet at:

Saturday, May 20, 2017

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits


Town Clerk arrested for allegedly attempting to "boost" her retirement benefits
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that Springport Town Clerk Deborah Waldron has been arrested for allegedly trespassing on a town computer in an effort to boost her retirement benefits with the New York State and Local Retirement System.

The Comptroller's audits and investigations have led to over 130 arrests and more than $30 million in restitutions.

Comptroller DiNapoli’s investigations focusing on allegations of retirement fraud alone has led to 24 arrests and the recovery of nearly $3 million in retirement funds since 2011.

Fighting such corruption is among the Comptroller's top priorities and in 2011 he, together with New York State Attorney General Schneiderman, created the Operation Integrity task force. The work of this task force has led to the recovery of unlawfully diverted taxpayer dollars. Among those convicted as the results of these efforts are former State Sen. Shirley Huntley for activities involving "member fraud;" of former Member of the Assembly William Scarborough for campaign and travel fraud; and of six Metropolitan Council on Jewish Poverty executives involving a multi-million dollar embezzlement.

The Comptroller's press release concerning Waldron's arrest is posted on the Internet at:


U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education


U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education
Source: New York Municipalities Blog, Harris Beach, PLLC

On March 22, 2017, in Endrew F. v. Douglas County School District, the United States Supreme Court issued a ruling focusing on the appropriate legal standard when determining if  a student with a disability is receiving an appropriate free public education (FAPE) via the student's individualized education program (IEP).

The New York Municipalities Blog item is posted on the Internet at:

Friday, May 19, 2017

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court


An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014." The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

Thursday, May 18, 2017

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions


An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

The New York State Division of Human Rights [SDHR] found that the employer's policy of disqualifying all employees with bipolar disorder from working as a bus operator was an unlawful discriminatory act. The Division order the employer to pay a civil fine and penalty of $30,000. Employer appealed and the Appellate Division unanimously annulled the Division's decision and dismissed the complaint.


Wednesday, May 17, 2017

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination


An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination
The Circuit Court explained that “An employer may defend against [a hostile work environment claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that [the employee's] unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.” 






Tuesday, May 16, 2017

The basis for challenging a decision by a civil service commission are limited


The basis for challenging a decision by a civil service commission are limited

Supreme Court granted the NYC Civil Service Commission's motion dismissing a CPLR Article 78 petition seeking to vacate a determination by the Commission the terminated the petitioner's [Petitioner] employment as a New York City correction officer.


Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position



Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Supreme Court granted a tenured teacher's CPLR Article 75 petition to set aside a determination of an arbitrator that sustained numerous disciplinary charges and specifications filed against her and terminating her employment as a tenured teacher. The New York City Board/Department of Education appealed and the Appellate Division   unanimously reversed the lower court's ruling "on the law" and reinstated the arbitrator's decision.


Monday, May 15, 2017

Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC


Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC
Office of the Governor

As part of consent order with New York State's Department of Financial Services [DFS], Future Income Payments, LLC [FIP] is repaying more than $500,000 to New York pensioners

On May 15, 2017 New York State's Governor Andrew M. Cuomo announced that refund checks totaling $541,835, as well as loan forgiveness information, were issued to 115 retirees deceived by pension advance company FIP as required by FIP and its owner Scott Kohn.

FIP was not licensed to make loans in New York, nor was it licensed as a money transmitter. An investigation by DFS found that the company solicited and made loans to retired consumers at high interest rates in exchange for retirees assigning away several years of their pension benefits to pay for the unlawful loans.

The consent order resolved the investigation by DFS, which found that FIP made loans in New York State without a lending license, charged a usurious rate of interest on loans to New York pensioners, transmitted money to and from New York State without a money transmitter license, misrepresented to New York pensioners the legal status of the transactions by characterizing the loans as sales of an asset, and omitted the annual percentage rate of the loans. The refunds were mailed Friday, May 12, 2017 to 108 New York residents and seven former residents.

In addition to mandating the refunds, the consent order requires FIP to pay a $500,000 fine and stop engaging in all consumer-related transactions within New York State and with any New York resident. FIP was also required to reduce the total amount owed by pensioners to the actual value of the lump sum that was advanced and forgive amounts due above that amount, resulting in forgiveness of more than $6.3 million across 292 transactions.

New York pensioners who entered into agreements with FIP will receive a letter from the third-party administrator, Rust Consulting, Inc. Consumers who entered into an agreement with FIP and do not receive a letter or need more information should visit www.nyfipsettlement.com or contact Rust Consulting, Inc. at (866) 317-8866 or info@nyfipsettlement.com.

DFS urges anyone who suspects that they have been the victim of a pension advance scheme to contact the DFS Consumer Help Line at (800) 342-3736 or log onto www.dfs.ny.gov for assistance.
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Some exceptions to the Doctrine of Exhaustion of Administrative Remedies


Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Civil Service Law §64 bars temporary appointments to positions in the competitive class excess of three months, subject to certain exceptions, including, but not limited to, when an employee is on leave of absence from the position. The Police Benevolent Association of New York State, Inc. [PBA], the bargaining representative for individuals employed as university police officers [UPO] at the State University of New York [SUNY] brought an Article 78 action seeking an order, among other things, annulling the temporary part-time appointment of an individual [Employee] as a UPO by SUNY's College of Environmental Science and Forestry. PBA contended that SUNY's appointment of Employee as a temporary part-time employee violated Civil Service Law §64.


Saturday, May 13, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report


Bombay Clerk Sentenced for Pocketing Justice Court Fees

A North Country court clerk was sentenced for stealing more than $5,680 from Bombay Justice Court while the other court clerk—his mother—was on sick leave, according to State Comptroller Thomas P. DiNapoli.


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:     
                    
City of Long Beach, – Budget Review;

Town of Minisink, – Payroll and Fire Protection and Ambulance Contracts;

Village of Tannersville – Water Department Operations; and the

Town of Wales – Financial Management

A guide to cybersecurity


A guide to cybersecurity
Source: InvestmentNews

InvestmentNews reports that "With more data aggregated and housed in the cloud," the threat of a cyber-crime compromising an organization firm is greater than ever. Its "white paper sources 'new data from the 2017 InvestmentNews Adviser Technology Study' that assesses the state of cybersecurity," while also offering practical tips for protecting an organization's operations  and its data.

Friday, May 12, 2017

Applying the Pell Doctrine in a disciplinary action


Applying the Pell Doctrine in a disciplinary action
Sullivan v County of Rockland, 2017 NY Slip Op 03519, Appellate Division, Second Department

Disciplinary penalties imposed on public employees in New York State must meet the test set out in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The genesis of this litigation was a disciplinary action involving an individual [Employee] who had served with the Rockland County Department of Social Services [DSS] since 1990. The appointing authority initiated disciplinary action against Employee alleging of gross misconduct — "falsification of business records." The Charge served on Employee set out two specifications alleging Employee had made false entries in DSS's computer system.

Following a disciplinary hearing, a hearing officer found that DSS had submitted substantial evidence in support of both specifications set out in the Charge and recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer's findings and recommendation as to the penalty to be imposed and terminated Employee.

Employee challenged his dismissal and the Appellate Division subsequently determined that  "specification number 2 was not supported by substantial evidence." The court granted Employee's Article 78 petition to the extent of annulling the appointing officer's determination that found Employee guilty of specification number 2, vacated the penalty imposed, dismissal, but otherwise confirmed the determination. The court then remitted the matter to the appointing authority for a determination of the appropriate penalty to be imposed in view of the finding that Employee was guilty of specification number 1.*

The appointing authority issued a new determination based solely on Employee's having been found guilty of specification number 1 and, again, imposing the penalty of termination of employment. Employee again filed an Article 78 petition seeking judicial review the penalty imposed after the appointing authority reconsideration of the matter.

The Supreme Court granted Employee's petition and remitted the matter to the appointing authority for the imposition of a lesser penalty. The appointing authority appealed the Supreme Court's ruling.

Applying the Pell Doctrine, the Appellate Division said that "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." The court explained that "[a] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

In this instance the Appellate Division found that the penalty imposed was so grave in its impact on the Employee that it was disproportionate to the misconduct, or the risk of harm to DSS or the public.

Thus, under the circumstances of this case, the Appellate Division ruled that the penalty of termination of employment for "this single incident of misconduct" was so disproportionate to the offense as to be shocking to one's sense of fairness, and constituted an abuse of discretion as a matter of law.

As Employee's actions "were not so egregious or of such moral turpitude as to justify termination of his employment in light of his previously unblemished record," the Appellate Division concluded that Supreme Court properly granted Employee's Article 78 petition and remitted the matter to the appointing authority for the imposition of a lesser penalty.


The decision is posted on the Internet at:

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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Applying the Pell Doctrine in a disciplinary action


Applying the Pell Doctrine in a disciplinary action

Disciplinary penalties imposed on public employees in New York State must conform with the doctrine that "any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."


Thursday, May 11, 2017

Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017


Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017
Source: Today's General Counsel Institute

Today's General Counsel Institute reports that the need for privacy and cybersecurity compliance continues to increase as organizations become more and more digitally driven, data breaches become more publicized and regulations continue to increase. C-suite executives, boards of directors, employees and third party providers all have data security obligations. Always knowing how to proceed can be complicated and confusing.

The Institute's Data Privacy and Cybersecurity Forum is designed to help cut through the maze of issues involved in protecting an organization from cyber attack. The program offers an interactive format and roundtable sessions addressing "data privacy and cybersecurity issues and will also provide actual solutions to real world issues."  

This Forum will be held at the New York City Bar Association, 42 West 44th Street, New York, New York, 10036, May 23-24, 2017.

N.B. Today's General Counsel Institute is offering a Complimentary Registration to the first 25 NYPPL readers registering to attend the Forum and who enter the "promo code" NYPPL100 in the appropriate box on the registration form posted on the Internet at: 
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/register/

Data Privacy and Cybersecurity Forums will be held at other locations throughout the United States in the future. Additional information is posted on the Internet at:
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/

Wednesday, May 10, 2017

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law


CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law
Kimmel v State of New York, 2017 NY Slip Op 03689, Court of Appeals

Under the Equal Access to Justice Act [EAJA; CPLR Article 86] under certain circumstances a court may award reasonable attorneys' fees and costs to a prevailing plaintiff in a suit against the State.

Does the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The Court of Appeals concluded that it does.

A New York State Trooper [Plaintiff], sued the State of New York and the New York State Division of State Police [State] alleging that she was subjected to discrimination, sexual harassment, and retaliation based on her sex at work and thus suffered a hostile work environment. She sought back pay, front pay, benefits, compensatory damages, reasonable attorneys' fees, and an injunction restraining the State from continuing its discriminatory practices.

According to her complaint, and supporting exhibits, her coworkers posted lewd cartoons portraying Plaintiff naked and engaged in various sexual acts, suggested that she perform sexual acts on them and other coworkers and engaged in other harassing and hostile conduct, including a physical assault that required Plaintiff to seek emergency room treatment and doctor-ordered work leave. The Court of Appeals' decision states that "she made repeated complaints but the harassment continued. Neither her supervisors nor her Troop Commanders put a stop to her coworkers' offensive behavior. Plaintiff repeatedly sought legal assistance, but had difficulty finding an attorney to take her case."

The State, in its defense, denied "that the agency had engaged in any wrongdoing whatsoever," and asserted as a defense that "[a]ll actions taken by the State were official acts taken in the exercise of their discretion." Eventually, based on its continued defiance of court orders, the Appellate Division struck the State's answers.*

Ultimately the case went to trial. Plaintiff prevailed and received a jury award of over $700,000. The jury award included past earnings of $160,000; past lost retirement earnings of $60,000; future lost retirement earnings of $491,000; and past pain and suffering of $87,000.

When Plaintiff's current and former counsel sought attorneys' fees and costs pursuant to the EAJA, Supreme Court held that attorneys' fees and costs could not be awarded because the EAJA did not apply "where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees."** The Appellate Division,  in a split decision, reversed the lower court's ruling, holding that a plain reading of the EAJA and its definition of the term "action" compelled the conclusion that the "EAJA applies to this case."

Supreme Court subsequently entered a final judgment awarding Plaintiff and intervenor attorneys' fees and expenses and the State appealed.

After an extensive exploration of the legislative history and applying the plain language, and remedial nature of the EAJA, the Court of Appeals concluded that "this civil action is eligible for an award of attorneys' fees," holding that "for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency."

In the words of the court: "The plain language of the statute, which is supported by the legislative history, compels the conclusion that "any civil action" encompasses cases brought under the Human Rights Law, and noted that "[i]t is not for this Court to engraft limitations onto the plain language of the statute."

Citing Orens v Novello, 99 NY2d 180, the Court of Appeals stated that "[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature," noting its agreement with the Appellate Division that "we may 'not legislate under the guise of interpretation and, if application of the EAJA to this action is an unintended result of the plain language of the statute, then that is a consequence best left to the Legislature to evaluate and, if necessary, resolve.'"

Accordingly, the Court of Appeals ruled that the order of the Appellate Division insofar as brought up for review, should be affirmed, with costs.

* See286 AD2d 881

** A footnote in the opinion, Footnote 5 , states, in pertinent part, "claims brought under the Human Rights Law are not tort claims," citing Margerum v City of Buffalo, 24 NY3d 721, in which the court opined: "no notice of claim requirement applies because "(h)uman rights claims are not tort actions under General Municipal Law §50-e and are not personal injury, wrongful death, or damage to personal property claims under General Municipal Law §50-i."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03689.htm

Tuesday, May 09, 2017

Defamatory statements


Defamatory statements

Supreme Court granted the plaintiff's motion for summary judgment for alleged liable after determining that the defendant had defamed the plaintiff by publishing false statements about him.


Applying the Doctrine of Conflict Preemption


Applying the Doctrine of Conflict Preemption

Under the Doctrine of Conflict Preemption, a local law is preempted by a State law when a right or benefit is expressly provided by the State law has been curtailed or taken away by the local law. 


Monday, May 08, 2017

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court


Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court
Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, Court of Appeals

The Chief Administrative Judge signed an administrative notice declaring that the policy of the Administrative Board of the Courts of the State of New York [Board] henceforth would be that "no judge . . . certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115* may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System."

The policy was grounded on the Board's belief that judges who simultaneously drew both a full judicial salary and a full pension, typically referred to as "double-dipping," adversely affected both the public's impression of the court system and the court system's negotiations with the other branches over crucial budgetary and personnel matters.

While three retired Supreme Court Justices' [Plaintiffs] applications were pending "certification," the Board released an administrative order reflecting this policy and gave notice that it would no longer certify applicants who would, on reappointment, choose to receive both a retirement allowance for prior judicial service and their salary as a certified justice. Subsequently a memorandum from the Office of the Chief Administrative Judge clarified the situation, indicating that retired Justices otherwise approved for certification would be certified only if they deferred receipt of their New York State pensions until their judicial service ended.

Plaintiffs filed an Article 78 petition seeking an order annulling the policy. Supreme Court dismissed their petition for failure to state a claim and declared the Board's policy to be neither illegal nor unconstitutional. Plaintiffs appealed to the Appellate Division, which reversed the lower court and granted the petition. The Appellate Division held that  the Board's administrative order "violated the New York Constitution, the Judiciary Law, and the Retirement and Social Security Law."

The Board appealed the Appellate Division's ruling and the Court of Appeals reversed the Appellate Division's decision "Because the Board enjoys nearly unfettered discretion in determining whether to certify a retired Justice, and because its decision here was not contrary to any law or constitutional mandate raised by Plaintiffs."**

The Court of Appeals decision notes that "New York's public policy strongly disfavors the receipt of state pensions by persons also receiving state salaries, citing §150 of the Civil Service Law as establishing New York State's general public policy against the simultaneous receipt of a state pension and a state salary.

§150 provides that "Except as otherwise provided by sections one hundred one, two hundred eleven, and two hundred twelve of the retirement and social security law*** . . . if any person subsequent to his or her retirement from the civil service of the state . . . shall accept any office, position or employment in the civil service of the state . . . to which any salary or emolument is attached . . . any pension or annuity awarded or allotted to him or her upon retirement, and payable by the state . . . or out of any fund established by or pursuant to law, shall be suspended during such service or employment and while such person is receiving any salary or emolument therefor [sic] except reimbursement for traveling expenses."

Further, said the court, §101(c) of the Retirement and Social Security Law provides that  "In the event that a judge or justice shall ... [h]ave retired and is receiving a retirement allowance from this retirement system, or another retirement system of which he [or she] was a member, and . . . [b]e certified for service as a justice of the supreme court pursuant to section one hundred fourteen or one hundred fifteen of the judiciary law, his [or her] retirement allowance shall cease" (emphasis supplied in the opinion).

In this action, said the Court, the issue presented is whether the Board's policy is rationally related to whether certification is "necessary to expedite the business of the court." The Court of Appeals, per curiam, concluded that this prospective rule was necessary, reversing the order of the Appellate Division and reinstating the judgment of Supreme Court.

* §115 of the Judiciary Law provides that a retired Court of Appeals Judge or Supreme Court Justice, if otherwise eligible for such certification, may perform the duties of a Supreme Court Justice if the services "of such . . . justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office."

** Citing Marro v Bartlett, 46 NY2d 674, the Court of Appeals noted that "[p]rovided it complies with the two criteria set forth in the Constitution, and absent proof that its determination violates statutory prescriptions or promotes a constitutionally impermissible purpose, the Board's authority is not subject to judicial review."

*** §212.1 of the Retirement and Social Security Law provides, in pertinent part, "there shall be no earning limitations under the provisions of this section on or after the calendar year in which any retired person attains age sixty-five."

The decision is posted on the Internet at:

Saturday, May 06, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017 
Source: Office of the State Comptroller 

Audit Questions Payments Made to Supportive Housing Provider

An audit issued today by New York State Comptroller Thomas P. DiNapoli has identified $32,271 in unallowable expenses and $489,616 in questionable costs that were paid by the state Office of Mental Health to an Altamont, N.Y. company that serves as a supportive housing provider for New Yorkers with mental illness.

 

Municipal Audits released:
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of: 

Franklin Square and Munson Fire District– Non-Firefighting Vehicles; 

Greater Syracuse Property Development Corporation – Enforcement Mortgages; 

Village of Mayfield – Water and Sewer Operations; 

Village of Newport – Financial Management; and the 

Wassaic Fire District – Purchasing and Claims Processing 

Friday, May 05, 2017

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law


Failure of the individual to timely execute his or her oath of office upon election to his or her  public office results in the position becoming vacant by operation of law

§30(1)(h) of the Public Officers Law provides that an incumbent’s office “shall be vacant upon ... [an incumbent’s] refusal or neglect to file his [or her] official oath ... before or within thirty days after the commencement of the term of office for which he [or she] is chosen, if an elective office ....”1



Thursday, May 04, 2017

Determining when "actual notice," in contrast to "constructive notice," of an administrative action is required to trigger the running of the Statute of Limitations for filing an Article 78 action


Determining when "actual notice," in contrast to "constructive notice," of an administrative actionis required to trigger the running of the Statute of Limitations for filing an Article 78 action

The collective bargaining agreement between the Central School District [District] and the employee organization representing certain employees provided that upon retirement employees in the collective bargaining unit "could enroll in the same Blue Cross/Blue Shield health insurance and Guardian dental insurance plans available to the District's then current employees, at their own expense."


Wednesday, May 03, 2017

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal


An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal
Appeal of Susan Sudano, Decisions of the Commissioner of Education, Decision #Decision 17,078

This decision demonstrates the importance complying with all of the necessary procedural steps when filing an appeal with the Commissioner of Education.

Susan Sudano was a tenured teacher employed in the district in the tenure area of remedial reading. As the result of a position in her tenure area being abolished, Sudano  was "excessed" and her name was placed on a preferred list. Sudano, contending that less senior teachers in her tenure area were retained or appointed from the preferred list, filed an appeal with the Commissioner of Education  seeking reinstatement to her former position. However, the Commissioner never addressed the merits of her complaint as the result of her failing to satisfy a number of procedural requirements.

The first issue addressed by the Commissioner was  Sudano's satisfying the requirement that her appeal must be timely by filing it within 30 days of the date of the decision or the performance of the act complained of unless any delay in meeting this 30-day deadline is excused by the Commissioner "for good cause shown."

In response to the School District's argument that Sudano's appeal was untimely, the Commissioner said that although an appeal must be commenced within the 30-day deadline, earlier Commissioner decisions indicated that "where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue." Here the Commissioner said that to the extent that Sudano contends that the School District violated Education Law §3013(3) "by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, her appeal was timely,"  the Commissioner explained that although she agreed with the School District that Sudano was required file her appeal within 30 days of the effective date the position was abolished, there was a "conflict in past Commissioner's decisions" that was resolved in Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582. 

In Gordon the Commissioner excused a delay in commencing an appeal within 30 days after the effective date of the abolition of the position and indicated that delays in commencing similar appeals pending on the date of that decision also would be excused where service was made within 30 days of the date on which another teacher commenced service in a position to which the petitioner claimed an entitlement. As Sudano's appeal was pending on the date the Gordon was decided, the Commissioner excuse Sudano's delay in bringing her claim that she was not the least senior teacher in the tenure area of the position abolished, "for the reasons stated in Appeal of Gordon."

However, there were other procedural requirements that had to be satisfied such as personal service of the petition upon each named respondent and, if a school district is named as a respondent, "service upon the school district" was required to be made "personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Further, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such as a "necessary party." In addition, the Commissioner said that "Joinder requires that an individual be clearly named as a respondent in the caption [of the petition] and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Sudano, however, had "initially failed to properly serve two respondents, Hanwright and Paniccia," said the Commissioner. She then attempted to effect service upon Hanwright and Paniccia, by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, did not demonstrate that Sudano made "any diligent attempt" to serve Hanwright and Paniccia personally before resorting to "substitute service."

Although Sudano did effect personal service upon both individuals later, such service was effected more than 30 days after Hanwright and Paniccia began to serve in the positions which Sudano claimed she was entitled by reason of her seniority.  As Sudano "offered no excuse for the delay in effecting personal service and in the absence of evidence of diligent efforts to effect timely personal service," on Hanwright and Panicca, the Commissioner said that she declined to excuse the delay. As a result, neither Hanwright and Panicca had been properly joined as parties in Sudano's appeal.

As to another respondent, D’Esposito, the Commissioner said that Sudano "attempted to effect service by affixing a copy of the petition to the door at a residence presumed to be that of ... D’Esposito." The Commissioner then noted that "The record indicates that there was one prior attempt to serve respondent D’Esposito several hours earlier on that same day" but said that she could not conclude "that two attempts at service, both within hours of each other on the same day, constitute a diligent effort."

Sudano also attempted to serve D'Esposito by mail. However the Commissioner said that "absent evidence of diligent efforts to effect service upon respondent D’Esposito, service by posting or by mail is ineffectual." The Commissioner explained that while the regulation permits service of a petition on a person "of suitable age and discretion" at the respondent’s residence where the respondent cannot be found, "there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner."

As the Commissioner did not authorize alternative service by mail, and no personal service was made upon D’Esposito, the Commissioner ruled that Sudano's appeal must be dismissed with respect to D’Esposito for improper service.

Turning to another issue, joining necessary parties, the Commissioner said that were she to accept Sudano's argument that four other teachers less senior than she were serving in positions is her tenure area, the employment rights of these four other teachers would be adversely affected were Sudano to prevail in her appeal.  Under these circumstances, theses other teachers were necessary parties and should have been joined and served as such.

Dismissing Sudano's appeal "for failure to join necessary parties,"  and for failing to properly serve other respondents, the Commissioner never reached the merits of her appeal.

The decision is posted on the Internet at:

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Layoff, Preferred Lists and Reinstatement - A 658 page electronic publication [e-book] focusing on the laws, rules and regulations, and selected court and administrative decisions, concerning the rights of public employees in New York State in the event of a layoff. More information is available on the Internet at: http://nylayoff.blogspot.com/.
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Tuesday, May 02, 2017

Hearsay testimony may be admitted in evidence in an administrative hearing


Hearsay testimony may be admitted in evidence in an administrative hearing
Demas v City of New York, 2017 NY Slip Op 03267, Appellate Division, First Department

A coach [Coach] of a school basketball team filed an Article 78 petition challenging the unsatisfactory performance rating (U-Rating) he received for the 2012-2013 school year. Supreme Court dismissed Coach's petition and Coach appealed. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the determination that Coach's performance was unsatisfactory has a rational basis in the record.

The court said that the record indicated that while under his coaching and supervision, Coach's players "engaged in a pattern of profane and uncontrollable conduct, on and off the court, which included yelling profanities, making offensive hand gestures and aggressively interacting with the crowd during basketball games."

The Appellate Division also noted that on at least one occasion, "security agents had to escort the opposing team from the premises."

One of the issues raised by Coach in his petition was that the hearing officer had relied on "hearsay testimony" in sustaining the U-Rating he was given.

Hearsay testimony is testimony given by an individual who testifies under oath about what he or she has heard from others rather than testifying about that which he or she had personally witnessed. Although typically barred in a criminal trial, hearsay testimony is permitted in an administrative hearing and, if sufficiently relevant and probative, may constitute substantial evidence.*

Citing Paul v NYC Department of Education, 146 AD3d 705, the Appellate Division, rejecting Coach's contention that hearsay testimony should not have been admitted at the hearing, holding that the hearing officer "was entitled to rely on hearsay" in sustaining the U-Rating give Coach.

* In Gray v Adduci, 73 NY2d 741, the Court of Appeals said that it was well established that "hearsay evidence can be the basis of an administrative determination."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03267.htm


Monday, May 01, 2017

A Tweet may constitutes an assault and other electronic triggers resulting in litigation


A Tweet may constitutes an assault and other electronic triggers resulting in litigation

In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy decision  [Tracy v Comm. of Labor, App. Div., 256 AD2d 800] indicates,* leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence. Tracy was denied unemployment insurance benefits following her termination after threatening her supervisor.

Nicole Black, Esq., writing in her LawBlog Sui Generis, reports a "tweeting event" that resulted in an individual being arrested and charged with committing a hate crime as the result of the tweeting. Ms. Black reports:

"Sometimes a tweet is just a tweet in the online world, and other times it can amount to an assault in the 'real' world. At least, that’s the difficult lesson learned by John Rayne Rivello, a Maryland man who was indicted in Texas and charged with the hate crime, Aggravated Assault with a Deadly Weapon, in violation of PC 22.02(a)(2)."** The Grand Jury’s indictment alleged that on December 16, 2016, Rivello “intentionally, knowingly, and recklessly caused bodily injury to Kurt Eichenwald, a disabled person…by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures, and said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF), and an Electronic Device and Hands, during the commission of the assault…And further that the Defendant did intentionally select said Kurt Eichnewald primarily because of the said Defendant’s prejudice or bias against a group identified by race, ancestry, or religion, namely: persons of Jewish faith or descent.”

Employers have been sued for alleged defamation of an employee founded on postings made on the employer's web site as the decision in Firth v State of New York, 98 NY2d 365, demonstrates.***

The Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized at a press conference.  On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

Other examples of such types of litigation include Murphy v Herfort140 A.D.2d 415, litigation resulting from communications between administrators, while Missek-Falkoff v Keller, 153 A.D.2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. 

Allegations of defamation may also arise following an employee's former employer supplying information to a prospective employer concerning the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.


** Ms. Black's article is posted on the Internet at:

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