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May 31, 2018

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges


Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges
Source: New York City Office of Administrative Trials and Hearings

Employee's "whistleblower defense" rejected by Administrative Law Judge
OATH Index No. 1883/17

A New York City claims examiner raised a Civil Service Law §75-b whistleblower defense to misconduct charges filed against the individual

Administrative Law Judge Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed.

Rather, the ALJ found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges.

Among Judge Garcia's findings:

1. Petitioner proved respondent took 288 days of unauthorized absence;

2. The individual operated of a personal watercraft in Florida while on leave for a purported injury; and

3. The employee submitted false documents during the hiring process that indicated that He was employed as an Assistant District Attorney during a period when he, in fact, worked as a paralegal.

Penalty recommended by the ALJ: termination of employment.  

The decision is posted on the Internet at:


Only one of several disciplinary charges filed against the employee sustained by proof submitted by the appointing authority at the disciplinary hearing
OATH Index No. 1958/17

In response to complaints filed against a New York City correction officer, the correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing the recruit's report about his conduct.

OATH Administrative Law Judge Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for the appointing authority to sustain its burden of proof.

Judge Miller sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”.

A five-day suspension without pay was recommended.  

The decision is posted on the Internet at:


Placing employee on "emergency involuntary leave" as authorized by CSL §72.5  sustained
OATH Index No. 1750/18

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability pursuant to §72.5 of the Civil Service Law.

Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him.

A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers.

ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  

The decisions is posted on the Internet at:

Determining if a dispute between a public employer and an employee organization is arbitrable


Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process
Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department

The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher.

The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year.

Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process."

Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011.

Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal ... as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher.

The decision is posted on the Internet at:

Report Reviews Impact of Taylor Law


Duly noted:

The Empire Center has issued a 50th anniversary update of its seminal 2007 report on New York’s landmark Taylor Law, which governs labor relations in state and local government, 50 Years Later, Report Reviews Impact of Taylor Law. 

The report is posted on the Internet at:


Authority of the arbitrator


Authority of the arbitrator
City of New York v District Council 37, 2018 NY Slip Op 03220, Appellate Division, First Department

Supreme Court granted the City of New York's petition to vacate an arbitration award, denied the grievance, and dismissed this proceeding the City brought pursuant to CPLR Article 75. The Appellate division unanimously affirmed the Supreme Court's ruling.

The court explained that an arbitrator exceeds his or her powers when the "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

However, the fact that there is a provision in a contract that the arbitrator may not alter or modify does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the intent of the parties.

In contrast, an arbitration award should be vacated where it is not derived from the contract but from the deliberate and intentional consideration of matters outside the contract.

Here, said the Appellate Division, the record shows that the arbitration award added to or modified the collective bargaining agreement as the arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

This exceed the arbitrator's powers as such an action was expressly prohibited in the agreement

The decision is posted on the Internet at:

May 30, 2018

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State


Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State
Buckley v City Of New York, 56 N.Y.2d 300
[Decided with Lawrence v City of New York]

These cases essentially involved the question of whether the fellow-servant rule continues to apply in New York. 

In each of these cases an employee of the City of New York, who was injured through the negligence of a coworker brought an action against the City. 

In Buckley v City of New York, a police officer was accidentally shot in the leg when a gun being loaded by a fellow officer discharged in the station house locker room. 

In Lawrence v City of New York, a fire fighter was seriously injured when a fellow fire fighter threw a smouldering couch from the second story window of a fire-damaged building and struck the plaintiff while he was standing in the yard.

In each case the plaintiff secured a jury verdict of liability against the city on a theory of vicarious liability and the city's motion to dismiss the complaint on the basis of the fellow-servant rule was denied. The Appellate Division affirmed the judgments in both instances and leave has been granted to appeal to this court. The Court of Appeals affirmed the Appellate Division's ruling.

The doctrine of  rule of respondeat superior holds that the employer will be liable to third parties for torts of an employee committed within the scope of his or her employment.

In contrast, the fellow-servant rule is triggered in the event an employee is injured by a fellow employee in the workplace. The injured worker will have no recourse against the employer in respondeat superiorand the rule provides that "where a servant is injured through the negligence or fault of a fellow servant, engaged in a common business and employment ... if the master is himself free from fault, the master is not responsible for the injury."

The Court of Appeals observed that "The over-all effect of the fellow-servant rule was drastically curtailed by the advent of workers' compensation legislation," concluding that "Today we are squarely presented with the question left open in Poniatowski — whether the fellow-servant rule is to survive in New York." Continuing, the court opined that "The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation, and was dealt an almost fatal blow in this State in Poniatowski v City of New York, 14 N.Y.2d 76."

With these decisions the court said it rejected "this rule entirely [and] inter its remains," explaining "The fellow-servant rule serves no continuing valid purpose in New York, but instead merely works an unjustifiable hardship upon individuals injured in the workplace, and we must thus conclude that the fellow-servant rule is no longer to be followed in New York."

The Buckley decision is posted on the Internet at:

May 29, 2018

Employer not liable for damages from an injury resulting from their superiors' exercising poor judgment


Employer not liable for damages from an injury resulting from their superiors' exercising poor judgment
Buckley v City of New York, 176 A.D.2d 207
[Decided with Coulter v City of New York]

Two New York City police officers sued the City to recover money damages for injuries they suffered while confronting a criminal suspect.

Their theory for recovery was that the City was negligent because "standard operating procedures" were not followed in an earlier attempt to arrest a suspect. Buckley and Coulter contended this failure to follow "standard operating procedures" resulted in their suffering injuries when they attempted to arrest the suspect some time later.

The Appellate Division dismissed their appeal, noting that "police officers may not recover monetary damages for the exercise of poor judgment on the part of their superiors in the exercise of their duties."

Although Buckley and Coulter, in the alternative, contended that they were entitled to recover under the provisions of §205-e of the General Municipal Law, the court ruled that §205-e applied only in cases involving the "negligent failure to comply with requirements regarding the maintenance and safety of [a] premises." As there was no allegation that their injuries were the result of such a failure, the Appellate Division held that §205-e was inapplicable insofar as recovery for their injuries was concerned.

The decision is posted on the Internet at:

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery


Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery
Sestito v City of White Plains, 2018 NY Slip Op 03528, Appellate Division, Second Department

The Commissioner of Public Safety of the City of White Plains adopted the findings and recommendations of a hearing officer, made after a hearing, and terminated the Petitioner's benefits under General Municipal Law §207-a. The Appellate Division confirmed the Commissioner's determination and dismissed the Article 78 action "on the merits, with costs."

Petitioner in the action, a firefighter, alleged that he had been injured while performing his duties and applied for benefits pursuant to General Municipal Law §207-a. The Commissioner's medical examiner found that Petitioner was capable of returning to light duty and that there would be a "medium to moderate" chance that he would be able to resume full duty if he underwent spinal fusion surgery.

The City's Fire Chief sent Petitioner a letter ordering him to return to work to assume a light duty position, or risk losing his benefits. A second letter sent by the Fire Chief awarded the Petitioner General Municipal Law §207-a benefits for a designated period and directed Petitioner to schedule the "fusion surgery."

Petitioner did not return to work as directed and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.
A hearing was conducted and the hearing officer concluded that the Fire Chief's orders were "reasonable and rational," and that Petitioner's failure to comply with those orders was without justification. The Commissioner adopted the recommendations of the hearing officer.

In his appeal Petitioner argues that the Commissioner's determination is not supported by substantial evidence. The Appellate Division disagreed, explaining that "Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Finding that there was substantial evidence to support the Commissioner's determination that Petitioner was fit to return to light duty and that surgery was a reasonable and appropriate treatment the court ruled that as Petitioner failed to return to work for his light duty assignment, and did not undergo surgery, his GML §207-a benefits were properly terminated.

In Schenectady Police Benevolent Association v New York State Public Employment Relations Board, 85 N.Y.2d 480, the Court of Appeals ruled that General Municipal Law §207-c, which provided benefits to law enforcement personnel authorizes the appointing authority to (a) require such personnel injured in the line of duty to perform light duty when found medically qualified to do so and (b) under the appropriate circumstances, undergo surgery, where reasonable.

The key to requiring an individual to undergo surgery, said the court, is that §§207-a and 207-c both provide that its respective benefits may be withheld if the officer refuses to undergo surgery. The decision notes that the employer's physician "may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment...."

The Court of Appeals observed that the §207-c further provides that anyone who refuses to accept "medical treatment or hospital care" waives the right to benefits under the section. A similar provision in §207-a applies where the injured employee is a firefighter.

The Sestito decision is posted on the Internet at:

The Schenectady decision is posted on the Internet at:

Determining if a dispute between a public employer and an employee organization is arbitrable


Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

May 25, 2018

Admitting evidence of prior disciplinary action taken against the charged party


Admitting evidence of prior disciplinary action taken against the charged party
OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:


Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State


Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State
Police Benevolent Assn. of N.Y., Inc. v State of New York, 2018 NY Slip Op 03586, Appellate Division, Third Department

This decision provides an opportunity to consider the relevant provisions of law applicable with respect to the reemployment of individuals receiving a retirement allowance from a public retirement system of New York State.*

§150 of the Civil Service Law requires the suspension of the pension and annuity [retirement allowance] of a retired state or municipal employee in the event such an individuals is employed in a public service position of the State or a political subdivision of the State and making a certain salary while continuing to receive his or her pension during the public employment** except as otherwise permitted by §§100, 211, 212, 213, 214 of the Retirement and Social Security Law, §503 of the Education Law and "as now provided by any local law or charter."

§211 further requires that a retired state or municipal employee to be employed in a public service position making in excess of a certain salary while continuing to receive his or her pension obtain the approval of certain commissions or public officers, to be requested by the appointing authority, and, where required, a "waiver" in order to avoid any diminution of his or her retirement allowance.

The position of Chief of University Police at the State University of New York, College at Brockport became vacant and two individuals applied for the position and met all of the required qualifications. Edward Giblin, who was retired from public service and receiving a retirement allowance, was offered and accepted the position.

The Police Benevolent Association of New York, Inc., [Petitioners] commenced this CPLR Article 78 proceeding alleging that the State University violated Retirement and Social Security Law §211 by hiring Giblin and granting him a waiver despite the availability of qualified, nonretired applicants. Petitioners sought an order compelling State University to rescind the waiver issued to Giblin. Supreme Court granted State University's motion to dismiss the petition based on lack of standing and Petitioners appealed.

The Appellate Division dismissed the appeal as moot, explaining "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

According to the decision, "Giblin retired from the position in 2017, and the waiver is therefore no longer in effect." Accordingly, said the court, "Petitioners cannot receive the relief requested in the petition, rendering the matter moot."

However, noted the court, there is an exception to the mootness doctrine permitting judicial review. In the event the issues are substantial or novel, likely to recur either between the parties or between other members of the public, and involve "a phenomenon typically evading review," such judicial review is warranted. Here, however, the Appellate Division did not find that the exception applies in this instance.

* New York State's Optional Retirement Programs authorized by Article 3, Part 5, Article 8-B and Article 125-A of the Education Law are not public retirement systems as neither the State nor a political subdivision of the State are liable for payment of benefits nor a party to any contract purchased in whole or in part with employer contributions made under the optional retirement program established and administered pursuant to these articles and any benefits shall be paid to "electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

** This limitation does not apply to individuals receiving a retirement allowance serving on jury duty or employed by the office of inspector of election as a poll clerk or ballot clerk pursuant to the Election Law, or as a notary public or commissioner of deeds, or to a retiree who has been elected to public office nor does it apply to individuals after the calendar year in which any such retired person attains age 65.

The decision is posted on the Internet at:

May 24, 2018

Processing an application for unemployment insurance benefits


Processing an application for unemployment insurance benefits
Matter of Weinstein (City of New York Dept. of Citywide Admin. Servs.--Commr. of Labor), 2018 NY Slip Op 03576, Appellate Division, Third Department

Guidelines applied by the NYS Department of Labor in determining if a claimant was entitled to receive unemployment insurance benefits include:

1. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve.

2. There must be substantial evidence in the record to support the Board's decision.

3. A false representation on an employment application regarding whether a claimant has ever been convicted of a crime can constitute disqualifying misconduct on a claim for unemployment insurance benefits.

Fred Weinstein [Claimant] filed a claim for unemployment insurance benefits. Claimant had commenced his employment as a sanitation worker for the City of New York on September 15, 2014. His employment was terminated in September 2015 after it was discovered that he had provided false information on his employment application. Claimant's application for unemployment insurance benefits was initially denied by the Department of Labor on the ground that his employment was terminated for misconduct, but an Administrative Law Judge [ALJ] overturned the denial following a hearing and awarded the Claimant benefits.

The Unemployment Insurance Appeal Board [Board] had adopted the finding of the ALJ that Claimant had falsified his job application by answering no when asked if he had ever been convicted of a felony or misdemeanor when, in fact, he had been previously convicted of two felonies and six misdemeanors.

The Board concluded, however, that Claimant's false representation did not disqualify him from receiving unemployment insurance benefits due to the length of time that the employer took in taking action against him and the City's Department of Citywide Administrative Services [Employer] appealed.

The Appellate Division noted that the record was "not entirely clear" with respect to when the Employer first learned of Claimant's criminal history found that the Employer was aware no later than March 2015 that Claimant had falsely represented that history, and Claimant was terminated in September 2015.

The individual who investigated Claimant's application for employment for Employer testified that the length of time between the filing of the application and the termination was not excessive because of the large amount of applications for employment for the City of New York that must be investigated and the Employer's policy to provide an opportunity for the employee/applicant to respond to any adverse information uncovered by the investigation before taking action.

The Appellate Division held that the length of time taken by the Employer prior to its taking action to terminate Claimant, under these circumstances, should not have been a factor in determining whether Claimant's false representations constituted disqualifying misconduct for the purposes awarding Claimant unemployment insurance benefits.

Finding that Board's decision lacked substantial evidence to support its  determination that Claimant was entitled to receive unemployment insurance benefits, the Appellate Division ruled that the Board's determination "must be reversed."

The decision is posted on the Internet at:

May 23, 2018

Lawsuit to recover damages for wrongful death of a student dismissed


Lawsuit to recover damages for wrongful death of a student dismissed
Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

May 22, 2018

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease


The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

Admitting evidence of prior disciplinary action taken against the charged party

Admitting evidence of prior disciplinary action taken against the charged party
OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:



May 21, 2018

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence


Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence
In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

The Appellate Division then considered the issue of whether Respondent's final determination was supported by substantial evidence. It found that it was, noting that "As relevant here, neglect is defined as an action 'that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient.'"

The decision is posted on the Internet at:

May 20, 2018

Processing an application for unemployment insurance benefits

Processing an application for unemployment insurance benefits
Matter of Weinstein (City of New York Dept. of Citywide Admin. Servs.--Commr. of Labor), 2018 NY Slip Op 03576, Appellate Division, Third Department

Guidelines applied by the NYS Department of Labor in determining if a claimant was entitled to receive unemployment insurance benefits include:

1. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve.

2. There must be substantial evidence in the record to support the Board's decision.

3. A false representation on an employment application regarding whether a claimant has ever been convicted of a crime can constitute disqualifying misconduct on a claim for unemployment insurance benefits.

Fred Weinstein [Claimant] filed a claim for unemployment insurance benefits. Claimant had commenced his employment as a sanitation worker for the City of New York on September 15, 2014. His employment was terminated in September 2015 after it was discovered that he had provided false information on his employment application. Claimant's application for unemployment insurance benefits was initially denied by the Department of Labor on the ground that his employment was terminated for misconduct, but an Administrative Law Judge [ALJ] overturned the denial following a hearing and awarded the Claimant benefits.

The Unemployment Insurance Appeal Board [Board] had adopted the finding of the ALJ that Claimant had falsified his job application by answering no when asked if he had ever been convicted of a felony or misdemeanor when, in fact, he had been previously convicted of two felonies and six misdemeanors.

The Board concluded, however, that Claimant's false representation did not disqualify him from receiving unemployment insurance benefits due to the length of time that the employer took in taking action against him and the City's Department of Citywide Administrative Services [Employer] appealed.

The Appellate Division noted that the record was "not entirely clear" with respect to when the Employer first learned of Claimant's criminal history found that the Employer was aware no later than March 2015 that Claimant had falsely represented that history, and Claimant was terminated in September 2015.

The individual who investigated Claimant's application for employment for Employer testified that the length of time between the filing of the application and the termination was not excessive because of the large amount of applications for employment for the City of New York that must be investigated and the Employer's policy to provide an opportunity for the employee/applicant to respond to any adverse information uncovered by the investigation before taking action.

The Appellate Division held that the length of time taken by the Employer prior to its taking action to terminate Claimant, under these circumstances, should not have been a factor in determining whether Claimant's false representations constituted disqualifying misconduct for the purposes awarding Claimant unemployment insurance benefits.

Finding that Board's decision lacked substantial evidence to support its  determination that Claimant was entitled to receive unemployment insurance benefits, the Appellate Division ruled that the Board's determination "must be reversed."

The decision is posted on the Internet at:

Due process procedure for mental disability leave set


Due process procedure for mental disability leave set
Laurido v. Simon, 489 F. Supp. 1169

Section 72 of the Civil Service Law authorizes an appointing authority to place an employee on leave of absence if the employee is certified not mentally fit to perform the duties of the position. Judge Haight of the U.S. District Court, Southern District of New York (Matter of Laurido) after holding that a state employee was not provided the required due process in connection with his being placed on leave pursuant to Section 72, prohibited placing employees on such leave unless the following procedural steps are followed:

        *"Written notice of the facts relied upon by the appointing authority to suggest that the employee is not mentally fit to perform the duties of his or her position in advance of the employee's examination by an employer's physician.

        *"Written notice of the physician's findings

        *"Written notice of the appointing authority's determination with respect to the involuntary leave, and the reasons and facts in support thereof.

        *"Written notice of the employee's right to appeal the appointing authority's determination and  the procedures for perfecting such appeal.

        *"Pre-hearing release to the employee, or his or her authorized representative, of the employee's medical records and related data, upon written request of the employee or the employee's personal physician or attorney, where authorized.

        *"Upon timely request, an adversarial type hearing, before an impartial decision maker, at which hearing the employee may be represented by counsel and may present evidence on his or her own behalf.

        *"Written notice of the hearing decision, together with a statement of the reasons and facts relied upon in support thereof."

Judge Haight noted that there might be compelling circumstances which would require the immediate suspension of an employee for the safety of the employee, the employee's co-workers or the public, or for the proper conduct of business, indicating that under such circumstances an immediate leave of absence may be directed but the procedures described above must be provided promptly thereafter. The Court also indicated that should the employee succeed in reversing the initial determination, reinstatement together with back pay and the restitution of leave credits would be required. It should be noted that alcoholism and substance abuse are defined as mental disabilities in the State's Mental Hygiene Law and Human Rights agencies have viewed such conditions as a "disability".

The decision is posted on the Internet at:

May 18, 2018

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]
Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

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