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Wednesday, January 31, 2018

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration
Dikovskiy v New York City Bd. of Educ., 2018 NY Slip Op 00231, Appellate Division, First Department

Gennadiy Dikovskiy filed petition pursuant to CPLR Article 75 seeking a court order vacating an arbitration award. Supreme Court granted Dikovskiy's petition and denied the New York City Board of Education's motion to dismiss her Article 75 action.

The Appellate Division affirmed the lower court's ruling vacating the penalty imposed.

Citing Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, the Appellate Division explained that "Where, as here, the parties have submitted to compulsory arbitration, the hearing officer's determination must be in accord with due process, supported by adequate evidence, and rational, and must not be arbitrary and capricious."

Finding that Supreme Court "properly concluded that the hearing officer's determination was arbitrary and capricious, and not supported by the record," the Appellate Division noted that:

1. There was no evidence that Dikovskiy's conduct toward a student violated any rule or regulation or was otherwise inappropriate;

2. The Board of Education's various training materials encouraged teachers to interact with students outside the classroom to foster student development;

3. The alleged "inappropriate" conduct with which Dikovskiy was charged "was not sufficiently defined so as to put Dikovskiy on notice as to what constituted misconduct; and

4. The Appellate Division's review of the video in evidence did not demonstrate that Dikovskiy had "engaged in any inappropriate behavior with a student."

The decision is posted on the Internet at:

Tuesday, January 30, 2018

Collecting attorney fees from the losing party




Collecting attorney fees from the losing party
Dechbery v Cassano, 2018 NY Slip Op 00228, Appellate Division, First Department
The Appellate Division held that Supreme Court properly exercised its discretion in denying Eileen Dechbery attorneys' fees in this proceeding seeking to vindicate her rights pursuant to Civil Service Law §71.*
 
Citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the court said that the general rule is that in Article 78 proceedings, "the prevailing party may not collect [attorneys' fees] from the loser unless an award is authorized by agreement between the parties or by statute or by court rule." However, observed the court, a petitioner in an Article 78 proceeding may be entitled to attorneys' fees under 42 USC §1988 where she asserts a substantial federal constitutional claim.

In this instance the Appellate Division said that Dechbery was not entitled to an award of attorney's fees as she has not successfully asserted a substantial federal constitutional claim in the proceeding. Although she alleges that her due process rights were violated, the mere fact that respondents mailed her notice of termination letter to her prior address does not constitute a violation of her due process rights as she was provided with post-termination due process.

Further, the court observed that Dechbery had failed to establish her entitlement to an award of attorneys' fees under the New York State Equal Access to Justice Act (CPLR Article 86).

* Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. The appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an accumulative period of one year or longer.

The decision is posted on the Internet at:


Monday, January 29, 2018

Signing a general release of all claims accruing up to the settlement date

Signing a general release of all claims accruing up to the settlement date
Harrington v City of
New York, 2018 NY Slip Op 00381, Appellate Division, First Department

In this employment discrimination and retaliation action, Michael Harrington alleges that the City of New York, et al, [Defendants] discriminated against him on the basis of his sexual orientation by refusing to employ him as a police officer and that Defendants also retaliated against him for a previous lawsuit plaintiff filed against the Defendants in 2007.

The 2007 action alleged discrimination, retaliation and harassment. The parties settled the 2007 lawsuit on December 12, 2013, with Harrington signing a general release of all claims accruing up to the settlement date, in exchange for a $185,000 payment from the Defendants.

After settlement, the New York Police Department [NYPD] instructed Harrington to proceed with his then-pending 2010 application, and he underwent another psychological evaluation. His application  remained on hold for nearly one year before the NYPD found Harrington not psychologically suited to serve as a police officer. The disqualification was based on the police psychologist's finding that plaintiff "relied chiefly on litigation to resolve issues," and cited plaintiff's 2007 action as evidence of his "poor stress tolerance."

Harrington,after exhausting his administrative remedies, initiated the instant litigation asserting causes of action for discrimination and retaliation under the State and City Human Rights Laws [HRLs]. He sought damages and an order directing the Defendants to appoint him to the NYPD. Supreme Court dismissed the causes of action. The Appellate Division reinstated Harringtoncauses of action, explaining that his complaint, "as amplified by [Harrington's] affidavit and psychological report, states claims for both discrimination and retaliation."

Harrington had stated a claim of invidious discrimination under the State and City HRLs by alleging (1) that he or she is a member of a protected class, (2) that he or she was qualified for the position, (3) that he or she was subjected to an adverse employment action (under State HRL) or he or she was treated differently or worse than other employees (under City HRL), and (4) that the adverse or different treatment occurred under circumstances giving rise to an inference of discrimination.

The Appellate Division, "affording plaintiff the benefit of every favorable inference, establishes prima faciethat defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve," said that "To make out a prima facie claim of retaliation under the State HRL, a plaintiff must show that (1) he/she has engaged in a protected activity, (2) his/her employer was aware of such activity, (3) he/she suffered an adverse employment action based upon the activity, and (4) a causal connection exists between the protected activity and the adverse action."*

Plaintiff alleges that in retaliation for his having commenced the 2007 action against the Defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.**

As an initial matter, Harrington's retaliation claims are not barred either by his settlement of the 2007 action, or by the general release of all claims that he could have asserted against the Defendants until that time. The alleged facts underlying the retaliation claims occurred in February 2014, and were not, said the court, precluded by the general release executed before that date, which waived only causes of action "up to . . . and including the date of the execution of this General Release."

The Defendants had contend that the 2007 action is not sufficiently temporally proximate to the alleged adverse action to support the causal connection necessary for plaintiff's retaliation claim. The Appellate Division disagreed, finding that although "temporal proximity between a protected activity and an adverse employment action may, under some circumstances, be sufficient in itself to permit the inference of a causal connection necessary for a retaliation claim, the fact that actions are not temporally proximate is not necessarily fatal to a retaliation claim. The absence of temporal proximity will not defeat the claim, where, as here, there are other facts supporting causation."

In finding Harrington psychologically unfit, the Defendants' police psychologist relied on Harrington's 2007 action against the Defendants. Specifically, the police psychologist's report stated that Harrington had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division held that the 2007 litigation served as the psychological disqualifier and was sufficient to plead the causal connection between the protected activity and the adverse action in this case.

* Under the City HRL, the test is similar, though rather than an adverse action, the plaintiff must show only that the defendant "took an action that disadvantaged" him or her.

** In finding plaintiff psychologically unfit, defendants' police psychologist relied on plaintiff's 2007 action against defendants. Specifically, the police psychologist's report stated that plaintiff had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division ruled that the 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.

The decision is posted on the Internet at:


Friday, January 26, 2018

The tolling of the statute of limitations when litigating a federal civil rights claim

The tolling of the statute of limitations when litigating a federal civil rights claim
Artis v District of Columbia, USSC, Docket 16-460

28 USC Section 1367(d) provides that the “period of limitations for” to refile a cause of action for a claim in State court  “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Stephanie C. Artis filed lawsuit in federal court against the District of Columbia alleging a federal employment discrimination claim. Artis also filed three related claims under D.C. law.

At the time Artis filed the related claims nearly two years remained on the statute of limitations for timely filing of the D.C. law claims.

More than two years later the federal district court rejected Artis' federal claim and dismissed her D.C.-law claims. Artis then filed her D.C. law claims in the D.C. Superior Court 59 days later. Superior Court dismissed those actions as time-barred and the D.C. Court of Appeals affirmed.

Supreme Court reversed, rejecting the District of Columbia's argument that 28 USC Section 1367(d) merely provided a grace period and the statute of limitations continued to run while the claim was pending in another forum.

The Supreme Court disagreed, explaining that the plain meaning of the statutory language, 28 USC Section 1367(d) indicated that the provision was a tolling provision, suspending the running of the statute of limitations both while the claim is pending in federal court and for 30 days after a dismissal of the federal action.

The decision is posted on the Internet at:

Thursday, January 25, 2018

Malwarebytes offers "cybersecurity" products


Malwarebytes offers "cybersecurity" products

Malwarebytes' January 2018 newsletter addresses "ransomware in one reference page -- its history, how to protect against it, what to do if you're infected."

The January 2018 newsletter is posted on the Internet at:

The URL of Malwarebytes' home page is https://www.malwarebytes.com/

Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office



Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office
Szymanski v Albanna, 2018 NY Slip Op 00378, Appellate Division, Fourth Department

In 2006, Mohamed Albanna, the defendant in this action, pleaded guilty to the federal crime of operating an unlicensed money transmitting business in violation of 18 USC §1960. He was sentenced to five years in prison and three years of probation.

In his plea agreement, Albanna acknowledged that had operated an illegal money transmitting business that transmitted more than $3.5 million to Yemen over a 13½-month period, in the course of which he [1] transmitted money to Yemen from individuals who did not fully and accurately identify themselves; [2] failed to inquire about the source of the money or why it was being sent; and [3] "made false entries in a money transfer ledger to hide the identities of certain senders and recipients." Albanna also acknowledged that he failed to file required currency transaction reports for cash transactions in excess of $10,000 and that he "knew that his business did not have the required license to transmit money."

In 2017, Albanna ran for election to the office of Councilman, for the 1st Ward of the of Lackawanna and received a majority of votes. Geoffrey M. Szymanski and the City of Lackawanna, as the Plaintiffs in this action, asked Supreme Court to declare that Albanna was ineligible to assume the City office of Councilman, 1st Ward.

Plaintiffs argued that §14.9 of the City Charter provides that "[a] person convicted of a crime or offense involving moral turpitude shall be ineligible to assume or continue in any City office, position or employment." Supreme Court found that Albanna was ineligible to assume the office of 1st Ward Councilman in the City of Lackawanna.

Albanna appealed but the Appellate Division sustained the lower court's ruling.

The Appellate Division explained that because Albanna stipulated the facts recited above in the course of the 2006 criminal action and "was convicted of a crime of moral turpitude," Supreme Court properly declared Albanna ineligible to assume the office of Councilman.

The decision is posted on the Internet at:


Wednesday, January 24, 2018

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty
Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:


[1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).

Tuesday, January 23, 2018

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment


Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment
Jiggetts v New York City Human Resources Admin., 2017 NY Slip Op 09236, Appellate Division, First Department

A  per diem employee, Kyle Jiggetts, was terminated from his position with the New York City Department of Homeless Services [DHS] 1994.

Jiggertts challenged his termination and an arbitrator concluded that, as a per diememployee, he could not challenge the termination of his employment under the disciplinary review procedures set forth in the controlling collective bargaining agreement.

Jiggetts, however, "continued to pursue lawsuits long after their lack of any legal basis was made apparent to him" and ultimately Supreme Court granted DHS's motion for sanctions. Jiggetts appealed.

The Appellate Division opined that given Jiggetts history of frivolous litigation, Supreme Court had providently exercised its discretion in imposing sanctions, which consisted of:

1. Ordering Jiggetts to pay $10,000;

2. Enjoining Jiggetts from commencing any further actions or proceedings arising out of his termination of employment from DHS without prior leave of the court.

The Appellate Division further explained that "[t]o the extent Jiggetts' remaining claims of discrimination and retaliation are not barred by res judicataprinciples based on prior federal and state court rulings rejecting his challenges to HRA's termination of his employment in 1994, they are barred by the applicable statutes of limitations, as the instant petition, filed in 2015, was commenced more than three years after petitioner was terminated in 1994."

The decision is posted on the Internet at:


Monday, January 22, 2018

The unauthorized removal of inoperative medical equipment may not constitute misconduct

The unauthorized removal of inoperative medical equipment may not constitute misconduct
OATH Index No. 2286/17

A respiratory therapist [RT] was charged with removing a respiratory device from a patient, failing to notify a doctor or clinical team that respiratory device had been removed, and failing to respond when summoned to report to the emergency department to provide respiratory care for a trauma patient.

OATH Administrative Law Judge Astrid B. Gloade credited proof showing the patient broke the device before RT had removed it and recommended dismissal of the charge related to RT removal of the device from the patient. In effect, Judge Gloade found that an unauthorized removal of a patient’s inoperative respiratory machine did not constitute misconduct on the part of RT under the circumstances.

In contrast, the ALJ found that RT's failure to notify the clinical team that of the removal the nonfunctioning device from the patient and RT's failure to respond when summoned by the emergency department constituted misconduct for which RT could be sanctioned in an administrative disciplinary action.

Accordingly, Judge Gloade, recommended that RT be suspended for sixty-days without pay.

The decision is posted on the Internet at:


Friday, January 19, 2018

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17


Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17
Rademacher v Schneiderman, 2017 NY Slip Op 08416, Appellate Division, Third Department; decided with Swack v Schneiderman, Appellate Division, Third Department; 2017 NY Slip Op 08421*

In March 2012 an inmate at Attica Correctional Facility, George Williams, brought a 42 USC §1983 action alleging that Matthew Rademacher, a correction officer, and certain other correction officers, violated his civil rights by physically attacking him without justification and the filed false reports and statements that resulted in disciplinary sanctions against him. Williams contended that all the correction officers involved were acting within the scope of their employment at the time.

Rademacher requested, and the respondent in this action, Eric T. Schneiderman, as Attorney General of the State of New York [Law Department], said that the State, pursuant to Public Officers Law §17, would reimburse Rademacher for the reasonable counsel fees and litigation expenses associated with his defense in Williams' 42 USC §1983 action.

In January 2013, Rademacher and two of the other correction officers were indicted on charges of gang assault in the first degree, tampering with physical evidence and ]official misconduct. Ultimately Rademacher, in full satisfaction of the indictment, pleaded guilty to the charge of official misconduct. Pursuant to the plea agreement, Rademacher was sentenced to "a one-year conditional discharge" and he resigned from his position as a correction officer.

The Williams Civil Rights action pursuant to 42 USC §1983, however, had been stayed during the pendency of the criminal action and in May 2015, the Law Department advised Rademacher that in consideration of his guilty plea, the State no longer had a duty to pay for his legal representation in the Williams action pursuant to Public Officers Law §17. 

Rademacher initiated a CPLR Article 78 proceeding in Supreme Court seeking, among other things, an order compelling the Law Department to rescind its determination and pay for his legal defense in the Williams action. Supreme Court granted Rademacher's application and the Law Department appealed.

The Appellate Division initiated its analysis of the case by stating that there was no  question that the State initially had a duty to defend Rademacher in the Williams action §1983 complaint alleged that, while acting within the scope of his employment as a correction officer, [Rademacher] "caused Williams to suffer physical, emotional and psychological injuries by physically attacking him, intentionally and without justification, and thereafter authoring or engineering written statements and reports falsely accusing him of various crimes, offenses and rules violations."

The Law Department, however, argued that the State's duty to defend Rademacher ceased once he pleaded guilty to official misconduct because "the guilty plea established, as a matter of law, that the allegations underlying the civil complaint arose outside the scope of [Rademacher's] employment and were the result of intentional misconduct."

The Appellate Division disagreed, explaining that:

1. "As is the case in the private insurance realm, the state's determination to disclaim financial responsibility for an employee's defense is rational only if it can be determined, as a matter of law, 'that there is no possible factual or legal basis on which [the State] may be obligated to indemnify the employee'";

2. Pursuant to Public Officers Law §17 (3) (a), the State has an obligation to indemnify its employees for any judgment or settlement obtained against them in state or federal court, so long as "the act or omission from which [the] judgment or settlement arose occurred while the employee was acting within the scope of his [or her] public employment or duties" and "the injury or damage [did not] result[] from intentional wrongdoing on the part of the employee." In other words, said the court, the State will not have a duty to indemnify an employee if the act or omission giving rise to the civil judgment or settlement occurred outside the scope of his or her employment or was the product of intentional wrongdoing; and

3. Neither Rademacher's allocution** of his actions in his plea nor the elements of official misconduct preclusively established that the acts alleged in the 42 USC 1983 complaint occurred while Rademacher was acting outside the scope of his employment or that the injuries or damages allegedly sustained by Williams were the result of Rademacher's intentional wrongdoing.

The Appellate Division said that Rademacher, "[i]n allocuting to this crime," did little more than recite the elements of official misconduct, adding only that "he committed the unauthorized act on August 9, 2011 in Wyoming County while employed by the Department of Corrections and Community Supervision."

However, said the court, assuming, as the Law Department contended, that the commission of an unauthorized act for purposes of an official misconduct conviction falls outside the scope of employment and constitutes intentional wrongdoing, Rademacher's plea allocution did not particularize the unauthorized act that he committed or otherwise include admissions to any of the conduct alleged in the civil complaint in the Williams action.

Accordingly, the Appellate Division held that it could not conclude, as a matter of law, "that there is no possible factual or legal basis on which the state may eventually be obligated to indemnify [Rademacher]." This, said the court, is because the state must defend the entire action "[i]f any of the claims against [its employee] arguably arise from covered events."

N.B. In the event a public officer or employee in a defendant in a criminal action, §19.2.(a) of the Public Officers Law provides, in pertinent part, that "it shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties upon his [or her] acquittal or upon the dismissal of the criminal charges against him [or her] or reasonable attorneys' fees incurred in connection with an appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.

It should also be noted that although not every employee is a public officer, all public officers are public employees.

* With the exception of the name of the Petitioner in Swack v Schneiderman, the facts and procedural history in the Swack v SchneidermanCPLR Article 78 proceeding are indistinguishable from those in Rademacher v Schneiderman.

** An allocution is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. An accused who had pleaded guilty to a criminal  charge or who had pleaded nolo contentere is deemed to "having been found guilty" of that criminal charge. However, although  a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

TheRademacher decision is posted on the Internet at:

The Swack decision is posted on the Internet at:


Thursday, January 18, 2018

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report

State Education Department: Kennedy Child Study Center: Compliance with the Reimbursable Cost Manual (2017-S-7)Kennedy is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. During the 2013-14 school year, Kennedy served about 345 students. The New York City Department of Education (DoE) refers students to Kennedy and pays for its services using rates established by SED. The DoE is reimbursed by SED for a portion of its payments to Kennedy. For the three fiscal years ended June 30, 2014, auditors identified $612,781 in reported costs that did not comply with state guidelines for reimbursement.
       
Public Service Commission: Pipeline Safety Oversight (Follow-Up) (2017-F-20)
An initial report issued in March 2016 found Department of Public Service (DPS) staff working under the Public Service Commission did not verify the accuracy of the information on employee/contractor qualifications maintained by individual operators. DPS staff rely on this data during field audits. In addition, DPS had not set up a process to identify instances where operators failed to notify them of specific gas-related incidents as required. In a follow-up, auditors determined DPS officials made significant progress in addressing the issues identified in the initial audit.

New York City Department for the Aging: Congregate Meal Services for the Elderly (2016-N-5)
Auditors
found that DFTA officials could not demonstrate that they contracted with optimally located senior centers to ensure the maximum number of eligible senior citizens can take advantage of the congregate meals being offered. DFTA did not perform any analysis to determine whether the costs submitted by sponsors were reasonable.  Auditors also reviewed the sponsors’ administrative costs for four randomly selected senior centers and found that one overstated its February 2016 invoice by $12,006, and may have received $120,570 in overpayments during the fiscal year ended June 30, 2016.

New York State Health Insurance Program: United HealthCare (UHC): Improper Payments for Medical Services Designated By Modifier Code 59 (Follow-Up) (2017-F-23)
An initial audit report released in January 2015, identified 13 claims out of a sample of 245 that were overpaid by $39,345 because a distinct or independent service was not provided as required even though the services were designated as such with modifier 59. Based on statistical sampling techniques, auditors estimated that UHC overpaid between $1.6 million and $5.2 million for services that included modifier 59 during the one-year period ending
Aug. 31, 2013. In a follow-up, auditors found UHC officials made significant progress in addressing the issues identified in the initial audit. UHC also recovered $29,856 of the $39,345 in identified overpayments.

State University of New York: Compliance With Payment Card Industry (PCI) Standards (Follow-Up) (2017-F-24)
An initial audit report issued in June 2016 found that although SUNY schools were generally knowledgeable about PCI compliance and the need to protect credit card data from unauthorized access, a range of weaknesses were found. In a follow-up, auditors found SUNY schools and the SUNY System Administration have made significant progress in implementing the recommendations identified in the initial report.

Wednesday, January 17, 2018

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances


Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department


Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

Tuesday, January 16, 2018

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions
Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."


Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

The decision is posted on the Internet at:



[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).


Friday, January 12, 2018

Informal Opinions of the Attorney General



Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017 
A change in the use of municipal parking spaces on parkland must be authorized by special legislation.


Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    
The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

Thursday, January 11, 2018

Police officer terminated following being found guilty of downloading and possessing child pornography


Police officer terminated following being found guilty of  downloading and possessing child pornography
2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

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