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N.B. §22 of the New York State General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL follows this protocol.

January 31, 2019

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"


Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"
Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Appellate Division, Third Department

Jordon Lilley reported to Gordon Daniels, the interim superintendent of the Greene Central School District[School District], that an employee under Lilley's supervision had allegedly engaged in misconduct by texting while driving and punching in time cards of other employees who had not yet arrived at work, including the employee's daughter.

Lilley alleges that Daniels told him that "despite a recommendation from the school district's counsel to terminate [the employee]," no action would be taken against the employee. Lilley subsequently reported the employee's alleged misconduct to the State Police and appeared before the school district's Board of Education to report the same alleged employee misconduct.

According to Lilley, the day after appearing before the School Board he was placed on administrative leave and was served with charges alleging "incompetence and/or misconduct" pursuant to Civil Service Law §75. The notice of discipline set out five separate charges, including that Lilley's alleged breach General Municipal Law §800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by Lilley and his wife, and that such sales constituted a conflict of interest.

Lilley then commenced this action pursuant to Civil Service Law §75-b, the so-called "Whistle Blower Statute," seeking, among other things, damages and reinstatement to his former position. Supreme Court, among other things, granted the School District's motion to dismiss Lilley's complaint, finding that documentary evidence submitted in support of the School District's motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the School District, warranted dismissal of Lilley's complaint. Lilley appealed.

Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division noted that "Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action." Although a claim pursuant to §75-b cannot be sustained when a public employer has a separate and independent basis for the action taken, "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction." Further, said the court, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

The Appellate Division the held that Supreme Court erred procedurally and substantively in dismissing Lilley's complaint based upon documentary evidence purportedly demonstrating that he had violated General Municipal Law §800, thereby "vitiating [Lilley's] retaliation claim" as the School District's evidence failed to "conclusively establish" that Lilley possessed any of the authority enumerated in General Municipal Law §801 creating a conflict of interest. In fact, said the Appellate Division, Supreme Court's decision is devoid of any reference to the factors enumerated in General Municipal Law §801 and thus Supreme Court improperly granted the School District's motion to dismiss Lilley's petition.

The Appellate Division also found that Supreme Court erred in the substantive application of Civil Service Law §75-b with respect to the School District's contention that an independent basis existed for its placing Lilley on administrative leave.

To assert a whistle blower claim under Civil Service Law §75-b, the individual must allege (1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the individual] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action."

The element of causation requires "that 'but for' the protected activity, the adverse personnel action by the public employer would not have occurred." Supreme Court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed Lilley's claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make "a separate determination regarding the employer's motivation" to ensure against pretextual dismissals and "shield employees from being retaliated against by an employer's selective application of theoretically neutral rules."

The Appellate Division modified the Supreme Court's ruling "on the law" by reversing the court's granting of the School District's motion to dismiss Lilley's amended complaint and remitted the matter to the Supreme Court to permit the School District to serve an answer to Lilley's complaint.

In contrast, the Appellate Division held that Supreme Court properly denied Lilley's cross motion seeking to disqualify Lynch and his law firm as the School District's counsel, explaining that "When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." In his affidavit, Lilley states that Lynch is a "critical witness" because he "was likely the attorney who recommended [that the employee] be terminated" and he "followed [Daniels'] directions with respect" to the disciplinary charges [filed] against [Lilley]."

Lilley, said the court, argued that the crime-fraud exception applies to the attorney-client privilege between Lynch and the School District. However the Appellate Division found that "there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against Lilley are committed in furtherance of a fraud or crime." As Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action, Lilley failed to demonstrate that he is entitled to disqualification of Lynch and his law firm from representing the Defendants.

The decision is posted on the Internet at:

January 30, 2019

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action


Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action
Randolph v Office of The N.Y. State Comptroller, 2019 NY Slip Op 00167, Appellate Division, Third Department

The petitioner in this action, David L. Randolph, applied for disability retirement benefits. His application was denied by the Comptroller following a hearing. Randolph, acting pro se,* appealed the Comptroller's decision and sent the notice of petition, verified petition and supporting documents by certified mail to Office of the New York State Comptroller, the Office of the Attorney General and the Supreme Court in Albany County.

Randolph, however, failed to "personally deliver these documents to an Assistant Attorney General or to the Attorney General" as required by §307.1 of the Civil Practice Law and Rules.** The Office of the State Comptroller moved to dismiss the proceeding for "lack of personal jurisdiction." Supreme Court granted the motion, and Randolph appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's ruling, explaining "[h]aving failed to obtain an order to show cause authorizing service by mail in lieu of personal service" Randolphused the certified mail method to effectuate service upon the Comptroller." This method, said the court, "requires that the pleadings be sent by certified mail, return receipt requested, to the Comptroller, and that they also be served upon the State of New York by personally delivering them to an Assistant Attorney General or to the Attorney General."

The record indicated that Randolphdid not personally deliver the notice of petition, verified petition, and other documents to an Assistant Attorney General or to the Attorney General. This, said the Appellate Division, is a jurisdictional defect and, in the words of the Appellate Division "Supreme Court properly dismissed the petition, and the merits of the underlying determination are not before us."

* Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf", e.g., acting as one's own attorney.

** §307.2 of the CPLR, addresses "Personal service on a state officer sued solely in an official capacity or state agency" and provides, in pertinent part, "...and by personal service upon the state in the manner provided by subdivision one of this section." §307.1 of the CPLR, Personal service upon the state, provides that such service "shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state."

The decision is posted on the Internet at:

January 29, 2019

Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage


Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage
Mehrhof v Monroe-Woodbury Cent. Sch. Dist., 2019 NY Slip Op 00110, Appellate Division, Second Department

Edward J. Mehrhof [Superintendent] and the Board of Education of the Monroe-Woodbury Central School District [Board] entered into a three year  "Superintendent's Employment Contract" [Contract]. Paragraph 14 of the Contract provided that the Superintendent could be discharged from employment prior to the expiration its three-year term for "good and just cause" upon a majority vote of the entire Board.

Subsequently the Contract was, from time to time, amended and ultimately provided for its extension  through June 30, 2015 with the caveat that "the Board may meet by January 30, 2015, to consider extending [Superintendent's] employment for an additional year."

In a writing labeled "Statement of Reasons for Termination" dated May 22, 2014, the Board terminated Superintendent's employment pursuant to paragraph 14 of the amended superintendent's contract whereupon Superintendent notified the Board that he was appealing the termination of his employment to an independent hearing officer designated by the Board."

On June 14, 2014 the Board's attorney wrote Superintendent that "regardless of the result of the appeal to a hearing officer, [Superintendent's] contract would not continue beyond June 30, 2015." The Board memorialized its attorney's letter with a formal resolution dated July 8, 2014. Superintendent did not pursue his appeal to a hearing officer.

In September 2015, Superintendent served a notice of claim on the Board and in May 2016 he commenced an action against the Board in Supreme Court seeking to recover damages for the Board's alleged breach of contract and its alleged  "tortious interference with prospective business advantage." The Board move to dismiss the Superintendent's complaint. In support of its motion to dismiss, the Board submitted, among other things, the Superintendent's amended complaint, the contract between the parties, the amended Superintendent's contract and the Board's resolution. The Supreme Court granted the Board's motion to dismiss Superintendent's petition and Superintendent appealed that ruling to the Appellate Division.

The Appellate Division said that in considering a motion to dismiss a complaint the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The court then explained that order to state a cause of action to recover for tortious interference with prospective economic advantage, the plaintiff must allege a specific business relationship with an identified third party with which the defendants interfered, citing a number of court decisions including Burns Jackson Miller Summit & Spitzer v Linder, 88 AD2d 50, 72, affd 59 NY2d 314).

Agreeing with the Supreme Court's finding that Superintendent "did not adequately plead a cause of action to recover for tortious interference with prospective economic advantage," the Appellate Division noted that Superintendent "did not identify any third parties with which he had a current or prospective economic relationship." In addition, and to the extent that Superintendent alleged that the Board interfered with a prospective contract, rather than an existing contract, the Appellate Division again agreed with the Supreme Court's determination that Superintendent "failed to adequately allege that Board engaged in the requisite culpable conduct."**

Finally the Appellate Division sustained Supreme Court's determination that the documents submitted by the Board refuted Superintendent's allegations that [1] he was entitled to recover accrued benefits for the 2014-2015 school year and [2] since Superintendent's employment was not automatically renewed for the 2015-2016 school year, he was not entitled to any damages for salary and benefits for that school year.

* In support of its motion to dismiss Superintendent's petition, the Board submitted, among other papers, Superintendent's contract, the amended contracts between the parties and the Board's relevant resolutions.

** In support of its motion to dismiss Superintendent's complaint, the Appellate Division noted that the Board had submitted  "documentary evidence" within the meaning of CPLR §3211(a)(1) reflecting official out-of-court transactions concerning Superintendent's employment and his termination.

The decision is posted on the Internet at:


January 28, 2019

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority


Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority
Thomas v Town of Southeast, 2019 NY Slip Op 00446, Appellate Division, Second Department

In an employee disciplinary matter conducted pursuant to §75 of the Civil Service Law, judicial review of factual findings made after a hearing is limited to consideration of whether that determination was supported by substantial evidence. Further, in the event there is conflicting evidence, or different inferences that may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the appointing authority and courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists.

Timothy Thomas, an employee of by the Town of Southeast Highway Department was served with disciplinary charges pursuant to §75 alleging that he had committed various acts of misconduct over a period of some 10 months including instances of disobeying the orders of a superior, including one instance in which his failure to follow the directions of the highway department Superintendent allegedly placed the Thomas, a coworker, and the general public in danger; being absent from work for two days without obtaining prior approval for such absence; and threatening and physically confronting the Highway Department Superintendent in the Department's garage.

At the disciplinary hearing Thomas denied the alleged charges of misconduct while a number highway department employees testified to the contrary. In addition, relevant camera surveillance footage, as well as audio recordings, was introduced into evidence by the Town in support of charges it had filed against Thomas and was made part of the record by the hearing officer.

At the conclusion of the hearing, the hearing officer found the Thomas guilty of some, but not all, of the charges filed against him. The hearing officer recommended Thomas be terminated from his employment "given the nature of the incidents, [Thomas'] lack of credibility and lack of remorse, and his previous disciplinary suspension of five days for harassing a co-worker and improper performance of his duties, as well as previous reprimands."

The appointing authority adopted the hearing officer's findings and recommendation and terminated Thomas' employment, whereupon Thomas filed a petition pursuant Article 78 of the CPLR seeking a judicial review of the Town's action.

The Appellate Division dismissed Thomas' appeal, explaining that any credibility issues were resolved by the hearing officer (see Matter of Reed v Raynor, 151 AD3d 730), and substantial evidence in the record supported the determination that the Thomas was guilty of the misconduct alleged in the surviving charges of misconduct.

The Appellate Division noted that a court may set aside an administrative disciplinary penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Walden v Town of Islip, 6 NY3d 735), and although "reasonable minds might disagree over what the proper penalty should have been," such a consideration does not provide a basis for a court to "refashioning the penalty," citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917

The Appellate Division decided that the penalty imposed on Thomas' by the appointing authority, dismissal from his employment, "is not so disproportionate to the offenses as to be shocking to one's sense of fairness, especially in light of the number of incidents and the petitioner's prior disciplinary record."

The decision is posted on the Internet at:

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January 26, 2019

Twenty-six New York State school districts designated as being in "fiscal stress"


New York StateComptroller Thomas P. DiNapoli reports 26 school districts in New York State are in "fiscal stress"
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color

Twenty-six school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System.* Although the same number of districts were designated in fiscal stress last year, many of the entities in this year’s list have changed. Only 12 were designated as stressed in both 2018 and 2017.

Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which drives the classification.

“Despite the ongoing financial pressures facing school districts, our fiscal stress monitoring system has revealed encouraging results in several communities,” said DiNapoli. “However, school boards and superintendents must remain cautious. Today’s budget decisions can have long-lasting implications and can quickly move a district into fiscal stress.”

This year, five school districts are designated in “significant fiscal stress” and the remaining 21 as “susceptible to fiscal stress.” The scores are based on the evaluation of 672 school districts with fiscal years ending on June 30, 2018.

The five school districts that were classified in “significant stress” are Eldred (Sullivan County); New Suffolk (Suffolk); Norwich (Chenango); Schenevus (Otsego) and Wyandanch (Suffolk).

A report released by DiNapoli today in conjunction with the fiscal stress scores showed the regions of Central New York, Long Island and the Southern Tier as those having comparatively high percentages of districts in fiscal stress.

The scores are based on financial information submitted as part of each district’s ST-3 financial report filed with the State Education Department as of Dec. 28, 2018.

* N.B. This announcement does not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year. The monitoring system does not score New York City.

For a list of school districts designated in fiscal stress, visit:

For the complete list of school district fiscal stress scores, visit:
For a copy of the fiscal stress report, visit:



January 25, 2019

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances


Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances
OATH Index No. 2137/18

A New York City correction officer was charged with using excessive force against an inmate and submitting a false report.

A video of the incident and respondent’s testimony indicated that a newly-admitted inmate resisted processing. When the correction officer attempted to guide the inmate to a table, the inmate swatted the correction officer's hand away and attempted to spit in the correction officer's face. The correction officer admitted that his hand was briefly was on the inmate’s neck as he tried to push the inmate away.

OATH Administrative Law Judge Noel R. Garcia sustained the excessive force charge but he recommended dismissal the false report charge. Judge Garcia found the correction officer’s written statement was consistent with the video evidence.

The ALJ recommended that correction officer be suspended for thirty-five days without pay, finding mitigation of the penalty was warranted based on the fact that the use of force was set in motion by the inmate’s belligerence, that the inmate did not suffer any injury, consideration of the correction officer’s long service record, and that the correction officer accepted responsibility for his actions.

The decision is posted on the Internet at:

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Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances, a guide to disciplinary penalties imposed on officers and employees of New York State and its political subdivisions.

January 24, 2019

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request


Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request
Luongo v Records Access Appeals Officer, 2019 NY Slip Op 00344, Appellate Division, First Department

The Legal Aid Society, New York, appealed a Supreme Court decision denying its petition to compel the New York City Police Department's Records Access Appeals Officer to disclose documents it had requested pursuant to the Freedom of Information Law [FOIL]* and dismissing the proceeding Legal Aid had brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower courts ruling.

The Appellate Division explained that the New York City Police Department documents at issue contain information used to evaluate a police officer's performance and included such items as the disposition of disciplinary charges brought against the officer.

Further, said the Appellate Division, the records, which contain factual details regarding misconduct allegations and punishments imposed on officers, could contain "material ripe for degrading, embarrassing, harassing or impeaching the integrity of [the] officer[s]," citing New York Civil Liberties Union v New York City Police Department, 2018 NY Slip Op 0842. The court pointed out that the records sought were exempt from disclosure pursuant to Civil Rights Law §50-a.

§50-a.1, which applies to the personnel records of police officers, firefighters and correction officers, provides as follows:

1. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order.

However, it should noted that subdivision 4 of §50.1 of the Civil Rights Law provides that "The provisions of this section shall not apply to any district attorney or his assistants,** the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions."

* Article 6 of the New York State Public Officers Law.


**  §22 of the General Construction Law provides as follows: Gender. Whenever words of the masculine or feminine gender  appear in any law, rule or regulation, unless the sense of the sentence  indicates otherwise, they shall be deemed to refer to both male or  female persons.

The decision is posted on the Internet at:

January 23, 2019

Applying the Doctrine of Collateral Estoppel


Applying the Doctrine of Collateral Estoppel
Roth v. County of Nassau, United States Court of Appeals, Second Circuit, Index#18-966-cv, Summary order

Rulings by summary order do not have precedential effect.

Craig Roth appealed the federal district court's granting summary judgment dismissing his claims that Nassau County had subjected him to unlawful discrimination after finding that Roth was collaterally estopped from asserting his discrimination claims under the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL).

The Second Circuit Circuit Court of Appeals said that it:

1. reviews a district court’s grant of summary judgment de novo and that the judgment may be affirmed on any ground fairly supported by the record;

2. in reviewing a district court’s application of the doctrine of collateral estoppel de novo, the Second Circuit accepts "all factual findings of the district court unless clearly erroneous; and

3. under New York law, collateral estoppel a. “may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate”; and b. “the issue that was raised previously must be decisive of the present action.”

Roth conceded that he is collaterally estopped from arguing that he could perform the “essential functions” of a police officer’s job but argued that he was not collaterally estopped from arguing that he could perform the essential functions of the job “with or without reasonable accommodation.” Roth claimed that the state court’s Article 78 order did not adequately address the issue of accommodation, and that he is not barred from demonstrating that he was able to perform the essential duties of the police officer job with or without such accommodation.*

The Second Circuit held that the District Court correctly concluded that Roth’s ADA and NYSHRL claims are precluded under the doctrine of collateral estoppel explaining that Roth’s complaint in this appeal seeks to relitigate issues that were fully and fairly decided during his Article 78 proceeding in New York Supreme Court as his Verified Petition before the New York Supreme Court specifically asserted that his disqualification violated Section 296(1)(a) of the NYSHRL and “may be actionable pursuant to the American’s [sic] with Disabilities Act as that Act protects individuals from employment discrimination based upon an actual or perceived disability.”

Roth's memorandum and reply memorandum in support of his Verified Petition filed with the State Supreme Court claimed to have “established a prima facie case of discrimination" that the County medically disqualified him for the position of police officer because of his medical disability.” In order to demonstrate a “disability” within the meaning of the NYSHRL, said the court, a plaintiff must show that he or she was able to perform the essential functions of the job with or without a reasonable accommodation. Nassau County's medical experts’ medical conclusions was that there was a significant risk that Roth could become mentally or physically incapacitated during bursts of severe exertion, including in pursuing suspects, using force, and rescuing individuals.

Considering the "particular nature of those functions" and Roth’s conceded failure to request any accommodation, the Circuit Court ruled that "absent a clear indication to the contrary the New York Supreme Court reasonably concluded that there was 'substantial evidence' to support a determination that it would have been impossible to provide any reasonable accommodation for those particular essential functions" of a police officer

In the words of the Second Circuit, "Roth’s discrimination claims fail because he is precluded under the doctrine of collateral estoppel from arguing that he was able to perform the essential functions of a police officer with or without a reasonable accommodation."

* Both the NYSHRL and the ADArequire a plaintiff to demonstrate as an element of his or her claim that he or she was able to perform the essential duties of his or her job with or without a reasonable accommodation.

The decision is posted on the Internet at:

January 22, 2019

Guidelines for confirming an award issued pursuant to compulsory interest arbitration


Guidelines for confirming an award issued pursuant to compulsory interest arbitration
Matter of Walker (Read), 2019 NY Slip Op 00340, Appellate Division, Third Department

The collective bargaining agreement [CBA] for uniformed firefighters [Firefighters] employed by the City of Plattsburgh [Plattsburgh], with the exception of the Fire Chief and the Assistant Fire Chief, expired. Since the expiration of that CBA the Firefighters and Plattsburgh had participated in compulsory interest arbitration three times to resolve disputes that arose during their negotiations of successor agreements as provided by Civil Service Law §209[4]).

In 2016 an arbitration award covering the 2012-2013 contract period granted the firefighters a 2% wage increase for 2012 and 2013, carried through 2017, and directed that all retroactive payments be disbursed within 45 days of the award.*  

Plattsburgh, however, failed to implement the mandated wage increases and make the required retroactive payments whereupon Firefighters commenced a CPLR §75.10 proceeding seeking to confirm the arbitration award. Plattsburgh, on the other hand, cross-moved to vacate the award as being "violative of public policy and exceeding the scope of the panel's authority."

Supreme Court granted the Firefighters application to confirm the award and denied Plattsburgh's cross motion, prompting Plattsburgh's appealing the Supreme Court's decision.

As a general policy of supporting and encouraging the resolution of disputes through arbitration (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, judicial interference with an arbitration award is confined to narrowly circumscribed circumstances. Courts may vacate an arbitration award if the arbitrator exceeded his or her authority by issuing an award that violates a strong public policy, is irrational or clearly exceeds a specific, enumerated limitation on the arbitrator's power (see Matter of Shenendehowa Cent. Sch. Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 20 NY3d 1026.**

Addressing Plattsburgh's argument that the arbitration award should be vacated on the basis that it violated public policy, the court said that in granting relief on such grounds "courts must be able to examine [the] arbitration ...  award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement." In other words, said the Appellate Division, "judicial inquiry is constrained to determining whether 'the actual result of the arbitration process' — without evaluation of the underlying rationale — on its face, and 'because of its reach, . . . violates an explicit law of this [s]tate'."

Plattsburgh contended that the enactment of Chapter 67 of the Laws of 2013 demonstrated that a strong state public policy exists "to control and stabilize the [general] fund balance and real property tax levies of 'fiscally eligible municipalities' who are experiencing ongoing fiscal distress," arguing that the award of a 2% salary increase for 2012 and 2013, carried through 2017, would deepen Plattsburgh's fiscal crisis by requiring it to completely deplete its general fund balance and raise taxes over the tax cap.

The Appellate Division said that Plattsburgh's reliance on such an argument was misplaced, explaining that, as  relevant here, Chapter 67 established a permanent financial restructuring for local governments to "provide a meaningful, substantive avenue for fiscally eligible municipalities to reform and restructure and provide public services in a cost-effective manner," while also setting "new parameters for arbitration awards" involving fiscally eligible municipalities.

Where, as here, the public interest arbitration panel determines that the public employer is a fiscally eligible municipality, the panel must, "first and foremost, consider [the public employer's] ability to pay by assigning [that criterion] a weight of [70%]", while assigning an aggregate weight of 30% to the remaining statutory criteria set out in Civil Service Law §209 subdivisions [4][c][v] and [6][e].

In the view of the Appellate Division, the amendments relied upon by Plattsburgh did not a "reveal strong and well-defined policy considerations prohibiting, in an absolute sense, the relief awarded here — that is, the 2% salary increases and the retroactive payments flowing therefrom" but rather "clearly evince a general policy recognizing the importance of considering, during the arbitration process, the fiscal status of fiscally-distressed municipalities" and the law requires only that, "when resolving a dispute and fashioning an award, the public interest arbitration panel accord a weight of 70% to a fiscally eligible municipality's ability to pay."

Concluding that the arbitration panel had complied with its mandate and the required 70% weighting factor, the Appellate Division said it could not reweigh the statutory factors and substitute its judgment for that of the arbitration panel nor could it engage in the extended fact-finding or legal analysis required by Plattsburgh's argument.

Finding that the arbitration award was not prohibited by a strong and well-defined policy embodied in law, the Appellate Division concluded that there was no basis upon which to invoke the public policy exception to vacate the arbitration award. Further, ruled the court, there was no merit to Plattsburgh's argument that the arbitration award mandated legislative action and in its absence, the panel exceeded the scope of its authority.

* Before issuing this arbitration award, the panel offered the parties an opportunity to consent to an alternate proposed opinion and award granting the panel the authority to issue a determination addressing more than a two-year period and, if agreed to, providing for, among other things, a 1.5% wage increase for 2012, 2013 and 2014 and a 1.75% wage increase for 2015, 2016 and 2017. However, the Common Council of the City of Plattsburgh unanimously rejected this alternate proposed opinion and award. 

** Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division observed that "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision".

The decision is posted on the Internet at:

January 18, 2019

New legal specialties traineeship titles established by the State of New York


New legal specialties traineeship titles established by the State of New York
Source: NYS Department of Civil Service Director of Staffing Services

In a memorandum from the Department of Civil Service’s (DCS) Director of Classification and Compensation, dated December 27, 2018, New York State Departments and Agencies were notified of a restructuring of the Legal Specialties Traineeship.

The Department of Civil Service has issued General Information Bulletin No. 19-03 providing information about the selection plan and appointment process for the Legal Specialties Traineeship going forward and it has been posted on the Internet at:

Entry level appointments can be made to all levels of the Senior Attorney, Senior Attorney (Realty), Senior Attorney (Financial Services), Hearing Officer, Unemployment Insurance Referee and Motor Vehicle Referee traineeships, including the journey level. All appointments must be made to the highest level for which the candidate is qualified.

DCS will be reissuing the continuous recruitment, open competitive announcement for Legal Specialties soon.

How Lawyers Are Using Social Media in 2019


How Lawyers Are Using Social Media in 2019

Nicole Black, a Rochester, New York attorney and the Legal Technology Evangelist at MyCase - law practice management software for small law firms, notes that the majority of lawyers are learning about - and are using - social media. She asks "Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?"

Her article "How Lawyers Are Using Social Media in 2019" is posted on the Internet at:
https://nylawblog.typepad.com/suigeneris/2019/01/how-lawyers-are-using-social-media-in-2019.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Qualifications for employment in the public service mandated by statute may not be waived


Qualifications for employment in the public service mandated by statute may not be waived
Martin, as Administratrix of The Estate of Christos Lekkas v State of New York et al., 82 AD2d 712

Christos Lekkas, a permanent Assistant Clinical Physician in the then Office of Mental Retardation and Developmental Disabilities,* [OMRDD] was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to Education Law §6522 of the Education Law which provides that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician," Lekkas initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas be given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge."

Prior to its repeal in 1971 §6512.1(b) of the Education Law had exempted full-time employees of a State hospital from the normal requirement of a State license to practice medicine. Announcements for civil service examinations for certain physician positions in State hospitals were not updated to reflect  that appointees to these positions now must be licensed to practice medicine by the State of New York. As a result, Lekkas' was permanently appointed an Assistant Clinical Physician following his passing a post-1971 examination for the position.

Supreme Court, addressing the narrow issue of whether a permanently appointed civil service employee in the competitive class may be summarily discharged from his or her position because he or she did not meet the minimum qualifications for the position, citing Ferrine v Bahou, 75 A.D.2d 669, as being dispositive of the issue, ordered Leekas reinstated to his former position with back pay and benefits "without prejudice to further proceedings" deemed advisable by the State.

The State appealed contending that Lekkas was ineligible for employment as an Assistant Clinical Physician because he was not licensed to practice medicine by New York State.

The Appellate Division framed the issue before it as "[w]here, as here, an ineligible applicant is appointed, the issue narrows to whether such an appointee can be discharged without being afforded an opportunity to challenge the reasons for his discharge." The court, affirming the Supreme Court's ruling, explained that resolution of this question turned on whether the qualifications for Assistant Clinical Physician were prescribed by regulation or by statute.

If Education Law, §6522 controlled, it was beyond the power and jurisdiction of the Civil Service Commission or any other administrative body to confer upon an applicant eligibility for appointment "denied to him [or her] by the Legislature."*

If a regulation controlled, the Appellate Division, citing Matter of Wolff v Hodson, 285 N.Y. 197, said that the decision was within the sole power and jurisdiction of the administrative agency and thus no appointee who has obtained permanent appointed to his or her position can be removed without being afforded the procedural rights set forth in §50.4 of the Civil Service Law, "despite the fact that had his [or her] infirmity to qualify for the position been timely known he [or she] would not have been appointed."

Noting that the duties of an Assistant Clinical Physician were defined administratively rather than by statute, the Appellate Division concluded that such duties were amenable to administrative change. The record, said the court, indicates that OMRDD notified Lekkas and others performing medical duties requiring licensure by circulating memoranda advising unlicensed physicians that they must desist from such practice except under the supervision of a licensed physician.**
  
Accordingly, ruled the Appellate Division, the State's contention that Lekkas was subject to job dismissal, without recourse to any benefits of his permanent employee status on the sole ground that he was practicing medicine without a license was without merit as Lekkas' assigned duties as an Assistant Clinical Physician were defined administratively, rather than by statute and thus such duties were amenable to administrative change. Presumably, Lekkas, on the date his employment was terminated, was discharging limited medical duties under the supervision of a licensed doctor.

Thus, said the court, the State's claim that Lekkas was subject to summary dismissal, without recourse to any benefits of his permanent employee status, on the sole ground that he was practicing medicine without a license as required by Education Law §6522 was without merit in view of the fact that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat. Accordingly, said the Appellate Division,  the provisions of the Civil Service Law rather than the Education Law controlled.

In the words of the Appellate Division, While it is clear that decedent would not have been eligible either to take the examination or be appointed if the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, it is equally clear that respondents could not terminate decedent on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment (see Civil Service Law, §50.4). Special Term thus correctly annulled decedent's discharge and ordered respondents to reinstate him with back pay and benefits" and affirmed the lower court's judgment , with costs.

It should be noted that Leekas died subsequent to the perfection of this appeal but prior to oral argument and the administratrix of his estate was substituted as party petitioner. As Special Term ordered Leekas' reinstated with back pay, the possibility exists that his estate could be the beneficiary of monetary benefits if it should ultimately prevail in this matter. Accordingly, the Appellate Division declined to dismiss the appeal on the ground of mootness.

* Subsequently redesignated the Office for People with Developmental Disabilities

** Such physicians were continued in employment and were given a period of time during which they could seek to obtain a New York State license to practice medicine. Leekas failed to obtain the required license prior to the deadline imposed to do so.

The decision is posted on the Internet at:


January 17, 2019

Why lawyers should know how to properly redact a document


Why lawyers should know how to properly redact a document
Source: George Khoury, Esq. writing on Technologist, Findlaw's Legal Technology Blog

Mr. Khoury notes that "if you don't know how to properly redact a document, you could end up telling the entire world what you never intended to tell anyone."

His article is posted on the Internet at:


Settlement of a dispute by oral agreement


Settlement of a dispute by oral agreement
Doe v. Kogut, USCA, Second Circuit, Docket #17-1479 [Summary Order]
[N.B.Second Circuit rulings by summary order do not have precedential effect.]

The parties in this action reached a settlement at a conference with a magistrate judge. After reciting the terms of the settlement on the record, the federal magistrate judge asked both parties if they understood and accepted the terms of the settlement and understood that acceptance constituted an oral contract. Both Doe and Kogut affirmed these statements.

Doe, however, subsequently repudiated the settlement, stating that the oral contract was not binding and she had been under duress.

Kogut, on the other hand, moved to enforce the settlement agreement and the court granted Kogut’s motion, reasoning that the oral agreement was binding and that Doe was not under duress at the time of the settlement conference. The Circuit Court sustained this ruling, explaining that “[a] settlement agreement is a contract that is interpreted according to general principles of contract law” and need not be reduced to writing if it is entered into voluntarily on the record in open court.  

In order to determine if the parties intended to be bound by an oral contract, the courts consider four elements:

[1] The absence of a writing;

[2] Whether there has been partial performance of the contract;

[3] Whether all of the terms of the alleged contract have been agreed upon; and

[4] Whether the agreement at issue is the type of contract that is usually committed to writing.

In this appeal the Circuit Court found that [a] the parties did not expressly reserve their rights not to be bound by the oral contract nor did either party object to the magistrate judge's statement of the terms of the settlement; and [b] both Doe and Kogut affirmed that they understood they would be bound by the oral agreement.

Noting that the parties “agreed that the formal settlement documents [would] incorporate the . . . [oral] terms and conditions,” the Circuit Court commented that the magistrate judge expressly stated that any later writing would be merely a memorialization of the material terms discussed at the conference and neither party objected. This factor, said the court, favors enforcement of the contract.

The second factor - partial performance - was affected Doe’s change in counsel. Doe's new attorney subsequently advised the court that he had been fired by Doe and ultimately a third attorney advised the court that he was now Doe’s new attorney. Thus, said the Circuit Court, the fact that Kogut did not ultimately draft a written version of the settlement or tender the agreed upon amount of the agreed upon payment to Doe "does not necessarily show that the parties intended not to be bound by the oral terms," opining that "[a]t best for Doe, this factor is neutral as Kogut’s ability to perform his end of the settlement was impaired as a result of Doe's actions.

The Circuit Court of Appeals found that the district court properly concluded that there were no open material terms as the agreement, as outlined by the magistrate judge, covered monetary compensation, included a mutual non-disparagement clause, and required Doe to withdraw her "family court petition" by a specified date. When asked by the magistrate judge, Doe’s attorney confirmed that no material terms were omitted. Indeed the Circuit Court's ruling states that "the parties considered whether the intervention of [an extra mural element] would affect any of the terms of the agreement and concluded that Doe would be bound [only] as to actions within her control." The court explained that Doe inability to withdraw her petition "does not bear on whether the parties settled all of the terms, but rather on her ability to perform her obligations.'

Turning to the fourth factor, the Circuit Court opined that “[s]ettlements of any claim are generally required to be in writing or, at a minimum, made on the record in open court [and] [t]hat is precisely what happened here -- the parties settled their dispute on the record before the magistrate judge." In the words of the Circuit Court, "... the parties’ settlement was not particularly complex -- Doe released her claims against Kogut and agreed to halt, to the extent  possible, proceedings in criminal and family court in exchange for a monetary payment and a mutual agreed upon non-disparagement agreement. Thus this factor favors enforcement of the oral settlement of the matter.

Because the parties did not reserve their rights not to be bound by the oral settlement, no material term was left open for further negotiation, and as the parties had reached their agreement on the record in open court, three of the four Winston factors favor enforcement of the oral settlement agreement.** The remaining factor was deemed neutral, without impact on any of the material terms of the settlement. 

As to Doe's claim of duress, although a settlement contract or agreement, like any other, may be attacked on the grounds that it was procured by fraud, duress or other unlawful means, Doe offered no evidence supporting her contention she agreed to the terms of the settlement under duress. Further, Doe did not offer any evidence of her attorney’s alleged lack of preparedness that “preclude[ed] the exercise of [her] free will,” and thus the court found this argument insufficient to show duress.

The Circuit Court of appeals held that the oral settlement was valid and the magistrate judge did not err by enforcing the agreement.


* Although this case involved litigating the oral settlement of a marital dispute, it is instructive with respect to the elements that would be considered by courts in resolving disputes involving an oral settlement of a contract grievance, a disciplinary action, a collective bargaining dispute and similar administrative or quasi-judicial proceedings. 

** Winston v. Mediafare Entm’t Corp., 777 F.2d 78

The decision is posted on the Internet at:

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