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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.

April 30, 2019

Guidelines followed by the judiciary in adjudicating motions to confirm or deny arbitration awards


In a proceeding pursuant to CPLR Article 75 brought by Petitioner [P] to confirm two arbitration awards, the Respondent [R] cross-petitioned to vacate the awards. Supreme Court confirmed both arbitration awards and denied R's cross-petitions. R appealed the Supreme Court's decisions.

The Appellate Division affirmed Supreme Court's ruling, explaining:

1. Judicial review of arbitration awards is extremely limited and unless the court determines that the arbitration award "violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's powers," it may not be vacated;

2. The party seeking to vacate an arbitration award bears a "heavy burden" of proving by "clear and convincing evidence" that impropriety by the arbitrator prejudiced that party's rights or impaired the integrity of the arbitration process;

3. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies;

4.  A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes the court's interpretation would be the better one; and

5. Even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the arbitration award to the court's sense of justice.

Finding that R did not contend that the arbitration awards violated public policy or exceeded a specifically enumerated limitation on the arbitrator's powers, nor that the arbitration awards were irrational, the Appellate Division said it agree with the Supreme Court's [1] determination granting P's petition to confirm the awards; [2] the lower court's denying D's cross-petition; and [3] its confirming both of the arbitration awards.

The decision is posted on the Internet at:


April 29, 2019

Revealing confidential records resulting a youthful offender adjudication distinguished from answering questions about the facts underlying the incident.


The plaintiff, [P], allegedly was injured as a result of a physical altercation with D, the defendant, which had occurred in the hallway of the high school that they both attended at that time.

When, in the course of discovery during the litigation that followed in P's effort to recover damages for personal injuries she had allegedly suffered as the result of certain actions by D, D's attorney refused to produce D, who had been adjudicated a youthful offender, contending that, pursuant to the Criminal Procedure Law §720.35(2) [CPL], the information sought by P was protected by the confidentiality provisions provided by law with respect to adjudications involving youthful offenders.

P then asked Supreme Court to grant her motion to compel D to appear for, and answer questions at, the deposition. The court granted P's motion, denying D's legal guardian's motion for a protective order precluding the deposition of D. D's legal guardian appealed the Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, explaining that the relevant provisions of law concerning youthful offender status set out in the CPL were the result of  "a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals."

The primary advantage of youthful offender treatment, said the court, is "the avoidance of the stigma and practical consequences which accompany a criminal conviction." Further, noted the Appellate Division, CPL §720.35[1] provides that "youthful offender adjudication is not a judgment of conviction for a crime or any other offense" and consistent with "the statutory goal that eligible youths not be stigmatized by a youthful offender adjudication," provides that records relating to the prosecution shall be sealed.

However, opined the Appellate Division, the statutory grant of confidentiality afforded to such official records and the information contained therein "does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication." Thus an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, "even though those facts also form the basis of his or her youthful offender adjudication."

The Appellate Division concluded that although D cannot be compelled to divulge the contents of the confidential records underlying her youthful offender adjudication, D can be compelled to answer questions about the facts underlying the incident.

The decision is posted on the Internet at:

April 27, 2019

May 2019 AELE case notes and publications alert


*** Law Enforcement Liability Reporter ***

This issue has cases on assault and battery: chokeholds, assault and battery: handcuffs, electronic control weapons: stun mode, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: intentional use, First Amendment, forfeiture proceedings, pursuits: law enforcement, and terrorism and national security issues. View at:
http://www.aele.org/law/2019all05/LR2019MAY.html


*** Fire, Police & Corrections Personnel Reporter ***

This issue has cases on drug screening, First Amendment, handicap/abilities discrimination: accommodation in general, national origin discrimination, pensions, political activity, retaliatory personnel actions, security clearances, and veterans and other preference laws. View at:
http://www.aele.org/law/2019all05/FP2019MAY.html


April 26, 2019

A probationary educator may be summarily terminated during his or her probationary period provided it is not unlawful or made in bad faith


When the New York City Department of Education [DOE] terminated an individual [Educator] serving in a civil service position in the Unclassified Service* during his probationary period, Educator file a petition pursuant to CPLR Article 78 seeking a court order annulling his dismissal from his position and directing DOE to reinstate him to his former position.

Supreme Court dismissed Educator's petition and the Appellate Division unanimously affirmed the lower court's ruling, explaining that, as the Court of Appeals held in Duncan v Kelly, 9 NY3d 1024, that Duncan, a probationary police officer, could be terminated without "notice and hearing" for any reason or no reason at all, as long as the dismissal was not unlawful or made in bad faith.**

Educator, said the Appellate Division, "alleges no facts to show that his termination was for an illegal or an improper reason" and his characterization of his termination as having been made in bad faith was "purely speculative." In contrast, the court observed that the record indicated that Educator was terminated for misconduct and for violating certain relevant regulations.  

Addressing Educator's contention that DOE's Office of Special Investigations "failed to interview one particular student" and failed to provide him with certain "investigatory materials," the Appellate Division opined that those "alleged irregularities in the process ... without more, do not constitute bad faith or a deprivation of a substantial right."


* See §35 of the Civil Service Law. §2573 of the Education Law, addressing the appointment of assistant, district or other superintendents, teachers and certain other employees, provides, in pertinent part, that "[t]he service of a person appointed to any of such positions may be discontinued at any time during [his or her] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education."

** "Police officer" is a position in the Classified Service of the Civil Service. Case law indicates that a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to his or her termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03141.htm


April 25, 2019

The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation


In this civil rights action a former employee [Plaintiff] sued her former employer [Defendant] alleging the Defendant failed to provide a workplace accommodate in consideration of her disability, subjected her to acts of unlawful discrimination, subjected her to a hostile work environment, and subjected her to retaliation. The federal district court dismissed her several claims.

The Second Circuit Court of Appeals reviewed her appeal of the federal district court’s dismissal of her complaint de novo, "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor” but, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, noted that "[a]lthough a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” The Circuit Court then considered the major components of Plaintiff's complaint and concluded as follows:

Failure to accommodate a disabled individual:  A plaintiff makes a prima facie case of disability discrimination arising from an alleged "failure to accommodate" by showing (1) "[p]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” The Circuit Court concluded that Plaintiff failed to plausibly allege that she requested reasonable accommodations for her disability.

Although the Americans with Disabilities Act [ADA] provides that reassignment to a vacant position is a reasonable accommodation, it does not require employers to create entirely new positions and it is the employee's burden to show that a reasonable accommodation exists, including the existence of a vacant position for which he or she is qualified.

In any event, the Circuit Court determined that Plaintiff had not alleged that there was an open position when she asked to transfer from her then position and to the extent that Plaintiff asserted that she should have been promoted as an accommodation, "that was not a reasonable accommodation."

Addressing Plaintiff's claim that Defendant "could have provided her with an ergonomic chair and other equipment, the Circuit Court said that Plaintiff had not alleged that she had requested these accommodations and declined to consider that aspect of her claims.

Adverse employment actions: Plaintiff's claims arising out of alleged adverse employment actions were found to have occurred more than three hundred days before Plaintiff filed her administrative charges with the New York State Division of Human Rights and thus they were found to have been "statutorily time-barred."

Disparate Treatment: Plaintiff alleged that she had been denied promotion because of her disability. The Circuit Court said the Plaintiff [1] sought to be promoted to positions for which she did not possess a minimum qualification as she did not have the requisite bachelor’s degree nor did she allege any facts showing that she was qualified for appointment to any position that permitted the applicant to satisfy the job eligibility requirements through a combination of experience and education. As to these and similar allegations involving Plaintiff's alleged disparate treatment by Defendant, the Circuit Court explained that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”*

Hostile Work Environment: To establish a hostile work environment claim, the Circuit Court said Plaintiff must show that “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . her work environment” and that any harassment she experienced was based on her being a member of a "protected class." In contrast, the Circuit Court noted that "[r]un-of-the-mill workplace conflicts, troubling though they may be, do not rise to the level of an objectively hostile workplace" and concluded that Plaintiff failed allege facts sufficient to establish a viable hostile work environment claim.

Retaliation: Citing Treglia v Town of Manlius, 313 F.3d 713, the Circuit Court observed that ADAretaliation claims are analyzed pursuant to the framework  established for Title VII cases.** Further, to establish an adverse employment action in the context of retaliation, the challenged action or actions must be materially adverse in contrast to merely being essentially "trivial harms,” “slights,” and, or, “annoyances,” which do not constitute adverse acts. The Circuit Court opined that none of incidents described by Plaintiff attained the level of an adverse action but, at most, consisted of interpersonal slights.

The Circuit Court then concluded its analysis of the complaints advanced by Plaintiff's by stating that "for the foregoing reasons" the judgment of the district court is affirmed.

* Observing that Plaintiff had plausibly alleged that certain supervisors were rude to her, the Circuit Court opined that "rudeness is not an adverse employment action and [Plaintiff] did not allege that she was ever formally disciplined by [by supervisors] despite their criticism."

** This framework requires “(1) the employee's participation in a protected activity; (2) that [the employer] knew of [the employee's] participation in that protected activity; (3) that [the employee] suffered an adverse employment action; and (4) that there exists a causal relationship between the protected activity and the adverse employment action.” 

The decision is posted on the Internet at:

April 24, 2019

Determining if a "non-governmental entity" is an "agency" within the meaning of the New York State's Freedom of Information Law and thus subject to its provisions


As the Court of Appeals opined in Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, New York State's Freedom of Information Law [FOIL] "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies."* For the purposes of FOIL, the term agency includes "any ... governmental entity performing a governmental ... function for the state or any one or more municipalities thereof." 

On occasion, however, a nongovernmental organization may be found to fall within the ambit of the term "agency" as described in FOIL and thus be deemed to be subject to its mandates with respect to the public's access to its records and documents.

Among the attributes of an entity that may be considered by courts in determining whether a nongovernmental organization is "an agency" for the purposes of FOIL are the following:

1. Is the organization required to disclose its annual budget?

2. Are the organization's offices in a public building?

3. Is the organization subject to a governmental entity's authority with respect to the hiring or firing personnel?

4. Does the organization have a board comprised primarily of governmental officials?

5. Was the organization created exclusively by a governmental entity?

6. Does the organization describes itself as an agent of a governmental entity?

When an emergency medical technician [Plaintiff] submitted a FOIL requests for certain records related to the rejection of Petitioner's application to be reinstated as a member of the Cortlandt Community Volunteer Ambulance Corps, Inc. [Ambulance], Ambulance "declined the requests on the ground that it was not an 'agency' required to comply with FOIL as defined in Public Officers Law §86(3)." In response, Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing Ambulance to produce the requested records, which petition Supreme Court granted.

Ambulance appealed and the Appellate Division vacated the Supreme Court's order and "on the law and the facts," denied Plaintiff's petition "in its entirety" and dismissed the proceeding. The Appellate Division had determined that Ambulance "does not fall within the definition of an agency" for the purposes of FOIL and thus was not subject to the requirements of FOIL.

Ambulance, said the court is a "not-for-profit corporation" that has contracted with the Cortlandt Ambulance District No. 1 [District], a subsidiary of the Town of Cortland, to provide emergency medical services to persons located within the District for a fixed annual sum.

The contract between the parties provides that Ambulance is to comply with "all orders, rules, regulations and demands made by the Town" in order to provide "adequate ambulance protection to residents within the District" and this constituted the only involvement of the Town and District with respect to operation of Ambulance. Neither the Town nor the District had formed and incorporated Ambulance and neither has the authority to select or appoint Ambulance's directors, officers, or members of Ambulance. For its part, Ambulance is not required to submit its budget to the Town or District for review nor does either the Town or the District have authority to approve Ambulance's budget or review or audit Ambulance's financial books and records.

The Appellate Division also noted that Ambulance receives the majority of its funding from sources other than the payments it receives from the District pursuant to the contract and purchases all of its equipment, supplies, and services from its own assets. 

Further, Ambulance receives no funding from the Town or District apart from the agreed upon contract payments and Ambulance is solely responsible for the maintenance and expenses related to its buildings, has the authority to hire staff, who are solely its employees, and it obtains its own workers' compensation policy for coverage of its employees and members. None of Ambulance's personnel are covered by the workers' compensation policy maintained by the District or the Town for their respective employees and volunteers and neither the District nor the Town has authority to review or approve contracts entered into by Ambulance for professional or other services it deems necessary for its operation.

Considering the defacto relationship of the parties, the Appellate Division concluded that "Under these circumstances, it cannot be said that Volunteer Ambulance is a 'governmental entity performing a governmental . . . function' so as to render it an agency subject to the mandates of FOIL."

In contrast, in Ryan v Mastic Volunteer Ambulance Co., 212 AD2d 716, the Appellate Division determined that Mastic Volunteer Ambulance Company [Mastic] was an "agency" within the meaning of FOIL.

The Ryan court found that Mastic performed a governmental function and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the Town of Brookhaven. Further, Mastic submitted a budget to, and receives all of its funding from, the Town and Mastic's allocation of its funds is "scrutinized by the Town."

Thus, concluded the court, Mastic "clearly falls within the definition of an agency" as defined in FOIL and is subject to its provisions."

* The basic concept underlying FOIL is that all government documents and records, other than those having access to them specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

The Cortlandt Community Volunteer Ambulance decision is posted on the Internet at:


April 23, 2019

A police officer's personnel records are exempt from disclosure pursuant to the Freedom of Information Law during and after he or she leaves public service


Public Officers Law §87[2][a]) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

The custodian of the relevent records denied Plaintiff's New York State's Freedom of Information Law [FOIL request for documents concerning complaints filed concerning a retired New York City police officer [Detective], together with reports of the outcome of any investigations into such complaints. Plaintiff had sought such records on the theory that such records were not, or were no longer, "personnel records used to evaluate performance toward continued employment or promotion" of police officers, firefighters and correction officers.*

Arguing that Civil Rights Law §50-a(1) was inapplicable because [1] the police officer was now retired and [2] the requested records are not "personnel records" because the custodian of the records was employed by an agency independent from the former Detective's employer, Plaintiff challenged the custodian's decision by initiating a CPLR Article 78 action seeking a court order to compel production of any such records. Supreme Court, in effect, denied the petition and dismissed the proceeding and Plaintiff appealed the Supreme Court's ruling.

The Appellate Division disagreed with Plaintiff's contention that Civil Rights Law §50-a(1) does not apply to the records demanded held by the custodian, explaining:

1. An agency "may deny access" to records that "are specifically exempted from disclosure by state or federal statute."

2. Civil Rights Law §50-a(1) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

3. In Matter of Prisoners' Legal Services of New York v New York State Dept. of Correctional Servs., 73 NY2d 26, the Court of Appeals held "whether a document qualifies as a personnel record under Civil Rights Law §50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location or its particular custodian."

The Appellate Division then observed that records of civilian complaints, "regardless of where they are kept," could be used to harass or embarrass police officers, which is exactly what Civil Rights Law §50-a was intended to prevent and the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a.**

Focusing on the application of these provisions to "former police officers," the court said it agreed with ruling by the Appellate Division, Third Department, in Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany, 121 AD3d 1369 that "a police officer's personnel records continue to be exempt from disclosure after he or she departs from public service."

Rejecting Plaintiff's contention that the potential for personnel records to be used to embarrass or harass police officers during litigation ceases to exist after their retirement, the Appellate Division opined that "[a] retired police officer might 'still [be] involved in an open or pending case' and ... in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his [or her] integrity." Indeed, observed the court, Detective "has been called to testify numerous times since his retirement."

Holding that the custodian of the records met its burden of showing "a substantial and realistic potential for the abusive use of the requested material against [Detective]," the Appellate Division sustained the lower court's ruling denying access to the records demanded by Plaintiff.

* Civil Rights Law §50-a.1.


The decision is posted on the Internet at:

April 22, 2019

Factors considered by courts in evaluating the disciplinary penalty imposed on an employee found guilty of misconduct


Supreme Court denied an Educator's petition seeking to vacate the determination of the New York City Board of Education [DOE] terminating her from employment after a Disciplinary Hearing Officer had found her guilty of a number of charges and specifications.

The Appellate Division said that the hearing officer's findings had a rational basis and were supported by adequate evidence and  included a finding that Educator had  abdicated her responsibilities as a teacher in violation of school protocol by "leaving a student in crisis with a school aide," and other incidents that the court's decision characterized as "causing unwelcome confusion for the student and her family."

Citing Bolt v New York City Department of Education, 30 NY3d 1065, the Appellate Division noted that considering "controlling precedent," its sense of fairness was not shocked by DOE's imposing the penalty of termination following the Educator's being found guilty of the several charges and specifications filed against her.  The Appellate Division also noted Educator's "poor judgment, and her failure to take responsibility for her actions or demonstrate any remorse gave no indication that her inappropriate behavior was likely to change."

The court then opined that absent a disciplinary penalty being obviously disproportionate to the misconduct and in contravention of the public interest and policy reflected by the agency's mission, in this instance "the mere fact that a penalty is harsh, and imposes severe consequences on an individual," did not affront its sense of fairness that it shocked the conscience of the court.

The decision is posted on the Internet at:

________________


A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on   http://booklocker.com/7401.html
_______________



April 19, 2019

Setting the terms and conditions of a disciplinary probationary period


Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "disposed" of the subsequent administrative disciplinary action taken against the officer by entering into a "settlement agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

While in disciplinary probationary status the police officer was arrested on assault charges alleged by a third party, which led to the officer being summarily dismissed from his position. 

Subsequently the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.**

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals being summarily termination from his or her position, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. 


Taylorwas subsequently summarily terminated from his position for allegedly sleeping on the job without notice and hearing and initiated an Article 78 proceeding against his former employer seeking reinstatement to his former position.

Although the employer contended that it terminating Taylor without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not a reason justifying his being summarily dismissed from his position authorized by the settlement agreement. The court explained that under the terms of the settlement agreement Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the agreement, i.e., his performance of his duties was unsatisfactory because of his consumption of alcohol. 

* Nolo contendere is a plea by which a defendant in a criminal prosecution accepts his or her of conviction of the charge or charges as though he or she had entered guilty plea but does not actually admit guilt. A plea of "nolo contendere," however, has the same primary legal effects as had the individual entered a plea of "guilty as charged."

** See Green New York City Police Department, et al., 235 AD2d 475.  The Appellate Division  also rejected the police officer's demand for "a name-clearing hearing," explaining that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

April 18, 2019

Evaluating conflicting testimony and the credibility of witnesses in a disciplinary hearing


A court may not weigh the evidence or reject the choice made by the hearing officer in a disciplinary proceeding where there is conflicting evidence and room for choice exists. Where  there is room for choice, the court may not substitute its judgment for that of the hearing officer regarding the credibility of the witness.*

In Crossman-Battisti v Traficanti, Appellate 235 A.D.2d 566, the Appellate Division rejected the employee's claim that all the witnesses had motives to lie and fabricate their testimony, finding that there was no basis "to disturb the resolution of issues of credibility implicit in [the employer's] determination [and] the duty of weighing the evidence and making the choice between conflicting inferences which can be drawn from the evidence is for the administrative agency, not the courts."

Citing  Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, the Appellate Division explained that considering "the broad discretion afforded to an administrative agency in cases involving internal discipline," it would not substitute its judgment for that of the appointing authority.

Addressing the employee's "retaliation defense" for whistle-blowing asserted in her answer [see Civil Service Law §75-b(3)], the court opined that the whistle-blowerdefense "applies only where the disciplinary proceeding is based solely on the employer's unlawful retaliatory action." Where, as here, explained the Appellate Division, "the employer presented evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained."

As to the penalty imposed by the appointing authority, termination of the employee, the court ruled that "there is no basis to disturb the penalty of dismissal imposed in this case, which we do not find so disproportionate to the offenses as to be shocking to one's sense of fairness," applying the Pell Doctrine.**

The Appellate Division sustained the agency's terminating the employee after finding her guilty of "unauthorized activity, altercations with other employees, unauthorized absences and abuse of leave time."

* Kolanik v Safir, 231 A.D.2d 720.

** Matter of Pell v Board of Educ., 34 N.Y.2d 222.

The decision is posted on the Internet at:


April 17, 2019

Establishing a prima facie case of unlawful discrimination triggers the McDonnell Douglas Corp. protocols used to evaluate employee's claims


In this appeal the United States Circuit Court of Appeals, Second Circuit, considered the employee's [Plaintiff] challenge to a federal district court's summarily dismissing his Title VII  complaint  "in the entirety" on the motion of his former employer [Defendant] and the lower court's dismissal of his New York City Human Rights Law"* allegations. Essentially Plaintiff alleged that Defendant had unlawfully discrimination against him on the basis of his race, ethnicity, or national origin in violation of Title VII.

The Circuit Court observed that summary judgment must be granted to the moving party “if the pleadings, the discovery and disclosure materials [in] the files, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court then explained that a petitioner's federal law unlawful discrimination claims are to be analyzed under the three-step McDonnell Douglas burden-shifting framework, in which the employee must initially present a prima facie case of unlawful discrimination.**

By establishing a prima facie case of unlawful discrimination, the employee shifts the burden of going forward to the employer, requiring the employer to articulate a legitimate, non-discriminatory reason for its actions.

In the event the employer presents a legitimate, non-discriminatory reason for its actions, the burden of going forward then shifts back to the employee, who must now show that the employer’s explanation or justification for its action is merely a "pretext" in order for the individual to go forward with his or her claim of unlawful discrimination.

In this action the federal district court held that although the Plaintiff satisfied the requirements of articulating a prima facie case of unlawful employment discrimination, the Defendant, citing the Plaintiff's poor work performance, had set out a legitimate, non-discriminatory basis for its dismissing Plaintiff from his position. The district court then rejected Plaintiff's contention that the Defendant's allegation of "poor work performance"  as its justification for Plaintiff's termination was "mere pretext" for its action.

Thus, in the words of the Circuit Court, the central issue on appeal is were the reasons advanced by the Defendant as justification for its action "pretext." The Circuit Court decided that the Plaintiff had, in fact, demonstrated the existence of a triable issue of fact as to whether Defendants' proffered reason for his dismissal was mere pretext.

The court observed that in both Plaintiff's federal district court complaint and in an exhibit to his complaint to the New York State Division of Human (sic), Plaintiff asserted that he had overheard one of the named Defendants state during a phone to another party that she “know[s] how to terminate this stupid [referring to Plaintiff's nationality] guy” and submitted other evidence of discriminatory animus towards him, including additional comments made by said Defendant to others.

In reviewing a district court’s grant of summary judgment de novo, and "construing the evidence in the light most favorable to the non-moving party," here the Plaintiff, and drawing all reasonable inferences in the non-moving party's favor,” the Circuit Court concluded that "it [was] for the jury to determine whether to credit Plaintiff's representation, and vacated both of the federal district court’s rulings.

The Circuit Court then remanded the matter to the federal district court "for further proceedings consistent with this order."

* The Circuit Court noted that with respect to Plaintiff's New York City Human Rights Law claim, which it considered separately, it was “construing [its] provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible", citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102.

April 16, 2019

Standing to challenge the appointing authority's decision finalizing a disciplinary action taken against an employee


Certain residents and taxpayers of the Village [Plaintiffs] commenced a CPLR Article 78 proceeding seeking a court order annulling a resolution adopted by the Village's Board of Trustees [Board] approving, by a three-to-two vote, a modified disciplinary settlement agreement entered into by the Village and an employee of the Village.

The Plaintiffs, among other things, alleged that the Board's action violated the Village's Code of Ethics as one of the Board members who voted in favor of the resolution was the employee's brother-in-law. The Village and the employee separately moved to dismiss the Plaintiffs' Article 78 petition on various grounds, including lack of standing.

Supreme Court granted those branches of the separate motions of the Village and the employee seeking to dismiss the proceeding for lack of standing, thus denying the petition and dismissing the proceeding. The Plaintiffs appealed.

The Appellate Division said it agreed with the lower court's ruling, explaining:

1. Plaintiffs "effectively concede" that they are unable to show the existence of an injury in fact; and

2. Plaintiffs "do not qualify for common-law taxpayer standing."

The Doctrine of "Common-Law Taxpayer Standing" referred to by the Appellate Division was considered by the Court of Appeal in its decision in Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579.  The Transactive court  noted "it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises."

As the Court of Appeals explained in Colella v Bd. of Assessors, 95 NY2d 401, it fashioned a remedy for taxpayers to challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action." The Doctrine, opined the court, should not be applied, however, to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter.

Citing General Municipal Law §51, which provides for the prosecution of municipal officers for illegal acts, the Court of Appeals commented that its position with respect to the Doctrine of Common Law Taxpayer Standing is reinforced by the fact that "the Legislature has seen fit to confer general taxpayer standing to challenge the actions of local governmental officials in only limited situations."

The decision is posted on the Internet at:

April 15, 2019

Considering the strong policy of including all public employees within the ambit of the Taylor Law, authority to designate certain employees managerial or confidential is to be read narrowly


For the purposes of Article 14 of the Civil Service Law, the Taylor Law, the term "public employee" means any person holding a position by appointment or employment in the service of a public employer except:

[1] judges and justices of the unified court system;

[2] persons holding positions by appointment or employment in the organized militia of the state; and 

[3] persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate body in accordance with such body's duly established procedures. 

Such persons, however, remain subject to the provisions of §210 of the Taylor Law, "Prohibition of strikes" and §211 of the Taylor Law which provides for obtaining "injunctive relief" where required.

Further, only persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective bargaining pursuant to the Taylor Law or to have a major role in the administration of collective bargaining agreements and, or, negotiated memoranda of understandings, or in personnel administration, provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment, may be designated "managerial" within the meaning of the Taylor Law while only employees who assist and act in a confidential capacity to employees designated "managerial" may be designated "confidential" for the purposes of the Taylor Law.*

Managerial  or confidential employees may not be an officer or a member of any employee organization that is currently, or seeks to become, the certified  or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.

Following the New York City Board of Certification's [the Board] approving an application by the Organization of Staff Analysts [the Organization] to add the title of Senior Auditor to the Organization's collective bargaining unit, the New York City Health + Hospitals [NYC Health] initiated an Article 78 action in Supreme Court seeking a court order annulling the Board's determination. 

Supreme Court dismissed NYC Health's petition. NYC Health appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division opined that Supreme Court had properly deferred to the Board's rational interpretation of the applicable statutes, including the Board's finding that the exemption to public employees' eligibility for collective bargaining set out in the Taylor Law is controlling. Citing Viruet v City of New York , 97 NY2d 171, the Appellate Division explained that as the Taylor Law is incorporated into the New York City Health and Hospitals Corporation Act and the exemptions in the Act are substantially consistent with Article 14 of the Civil Service, "the override provision of Unconsolidated Laws §7405(5) does not apply" in this instance.

Noting that the exclusions for managerial and confidential employees are an exception to the Taylor Law's strong policy of extending its coverage to all public employees and are to be read narrowly, the court concluded that here the Board had a rational basis for finding that Senior Auditors were not "managerial" employees within the meaning of the Taylor Law. Although a Senior Auditor specifies how audits are to be conducted and may proposed changes based on the audit's findings, the Appellate Division said that "the Board reasonably found that submitting such nonbinding recommendations" does not constitute "formulat[ing] policy." Further, said the court, the Board also rationally found that Senior Auditors are not "confidential" employees within the meaning of the Taylor Law.

* For the purposes of the Taylor Law, §201.7(b) of the Civil Service Law provides that assistant attorneys general, assistant district attorneys, and law school graduates employed in titles leading to promotion to assistant district attorney upon admission to the New York bar are "managerial" employees. Confidential investigators employed by the New York State Department of Law are "confidential" employees within the meaning of the Taylor Law pursuant to §201.7(b).

The decision is posted on the Internet at:


April 12, 2019

By commencing a CPLR Article 78 action involving arbitrable issues, the petitioner may be deemed to have waived his or her right to demand arbitration of those issues


The Village of Bronxville terminated the employment of one of its police officers [Employee] and notified him that his "health insurance coverage, as well as any other insurance coverage that had been provided by the Village, would terminate." Employee objected, contending that the collective bargaining agreement [CBA] between the Village and the Bronxville Police Taylor Act Committee [BPTC] provided that he was entitled to individual and family health insurance coverage as a disability retiree.

The CBA outlined a grievance procedure to resolve "[a]ny dispute arising concerning the interpretation, construction or application" of the terms of the CBA. Under the terms of the CBA, if the dispute was not resolved through the grievance procedure, the parties were to submit the matter to arbitration. Ultimately the Village Board of Trustees denied the grievance. When BPTC served a demand to arbitrate the matter, the Village commenced an CPLR Article 75 proceeding seeking a permanent stay of arbitration of Employee's claim for health insurance benefits pursuant to the terms set out in the relevant collective bargaining agreement.

The Village argued that the BPTC and Employee [1] had waived the right to arbitration the grievance, and [2] that arbitration should be permanently stayed for laches. Supreme Court granted the Village's petition holding that while the BPTC had not waived the right to arbitrate Employee's claim, arbitration should be permanently stayed pursuant to the doctrine of laches and BPTC appealed.  

The Appellate Division agreed with Supreme Court's determination granting a stay of arbitration, but for a different reason. Explaining that the doctrine of laches bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party and prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay," and although the BPTC unreasonably and inexcusably delayed filing a demand for arbitration, the Village failed to demonstrate that it suffered any prejudice as a result of that delay. Thus, concluded the Appellate Division, the doctrine of laches does not bar the arbitration in this instance.

Citing Sherrill v Grayco Bldrs., 64 NY2d 261, the Appellate Division opined that "[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned." The court then noted that Employee had previously commenced a proceeding pursuant to CPLR Article 78 against, among others, the Village, challenging the Village's determination to terminate his health insurance benefits. In that proceeding Employee had alleged that the Village had breached the collective bargaining agreement by failing to provide him with disability retiree health insurance coverage.*

"By commencing an action at law involving arbitrable issues" pursuant to Article 78 the Appellate Division opined that BPTC and Employee "had waived whatever right [they] had to arbitration," citing Hart v Tri-State Consumer, Inc., 18 AD3d 610.

The Appellate Division then ruled that Supreme Court should have permanently stayed the arbitration on the ground that BPTC and the Employee had waived any right to arbitrate the matter.

* The Appellate Division noted that "Where a party affirmatively seeks the benefits of litigation, in a manner 'clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration,' the right to arbitrate has been waived."

The decision is posted on the Internet at:


April 11, 2019

Medical records related "solely to an employer's hiring practices" are not available to the applicant pursuant to New York's Public Health Law §18 unless necessary to make informed decisions concerning medical treatment


In this Article 78 proceeding the Plaintiff asked Supreme Court to [a] annul the New York-New Jersey Port Authority's [Authority] determination that he was not qualified to serve as a police officer in its public safety department in consideration of the results of his psychological evaluation and [b] to direct the Authority to provide him copies of all of its records related to his psychological evaluation.

Ultimately Supreme Court [a] granted the Authority's motion to dismiss that portion of Plaintiff's petition seeking to annul the Authority's rejection of Plaintiff for appointment as a police officer but [b] granted that portion of Plaintiff's petition seeking a court order requiring the Authority to provide him with "his psychometric testing results related to his psychological evaluation" pursuant to New York's Public Health Law §18.

The Authority appealed and the Appellate Division reversed that portion Supreme Court's judgment that ordered the release of the documents related to Plaintiff's psychometric testing results related to his psychological evaluation. The court explained that Plaintiff was not entitled to his psychometric testing results pursuant to §18 because §18 was intended to give individuals access to their medical records "to obtain necessary information about their medical treatment and condition and to make fully informed choices about their medical care."

Here, however, the court said that in this instance Plaintiff was not seeking to procure these psychological testing results as "necessary information about [his] medical treatment and condition . . . to make fully informed choices about [his] medical care."

Rather, opined the Appellate Division, the Authority's psychological testing results related "solely to its hiring practices," a wholly internal matter, which the Authority characterized as part of "the process used to recruit, screen, and evaluate candidates seeking to serve as police officers." The Appellate Division agreed with this characterization, commenting that this was "a quintessential example of an internal operation and a core employer-employee relations matter."

The court also took note that the Authority, as an interstate compact agency, is not subject to New York legislation governing its "internal operations," e.g. employer-employee relations, "unless both New York and New Jerseyhave enacted legislation providing that the same is applicable to The Port Authority, which is not the case here."

In contrast, however, the Appellate Division, citing Salvador-Pajaro v Port Auth. of N.Y. & N.J., 52 AD3d 303, pointed out that although a bi-state entity, the Authority "is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The decision is posted on the Internet at:

April 10, 2019

Employee terminated "for failing to maintain a minimum qualification of her employment"


An employee [Petitioner] of the Office for Persons with Developmental Disabilities [OPWDD] was suspended from her employment without pay and thereafter charged with six charges alleging misconduct and, or, incompetence related to alleged criminal conduct. Petitioner, was subsequently indicted on a number of criminal charges related to her employment with OPWDD and notified by the Office of the Medicaid Inspector General  that, "based on the pendency of felony charges against her," she was excluded from participation in the State's Medicaid program."

Notified by OPWDD that her employment was subject to termination, Petitioner failed to attend two scheduled meetings for the purpose providing with an opportunity to present documentary evidence showing that she "was not an excluded provider" whereupon OPWDD wrote to Petitioner that her employment was terminated as of close of business on November 1, 2016. On October 26, 2016, following a jury trial, Petitioner was acquitted of all criminal charges for which she had been indicted. Notwithstanding her acquittal of the criminal charges, OPWDD terminated Petitioner effective November 1, 2016

In February 2017 Petitioner initiated a CPLR Article 78 proceeding against OPWDD seeking, among other things, reinstatement to her former position, contending that her termination was made without administrative due process and "was otherwise arbitrary and capricious." Supreme Court dismissed her petition and Petitioner appealed.

The Appellate Division affirmed Supreme Courts ruling, rejecting her contention that she was denied due process when OPWDD failed to follow the disciplinary procedures mandated by the Civil Service Law Section 75 and set forth in the relevant collective bargaining agreement.

The court explained that Petitioner not been terminated from employment by OPWDD based upon any allegation of incompetence or misconduct but was terminated "for failing to maintain a minimum qualification of her employment" - continued eligibility for the Medicaid program -- and, therefore, "the disciplinary procedures mandated by the Civil Service Law and the collective bargaining agreement were not applicable in this instance."

Further, opined the Appellate Division, it saw no violation of Executive Law §296, New York State's Human Rights Law, as Petitioner had been terminated for failing to possess a minimum qualification of employment that was "expressly set forth in OPWDD's employee handbook, which indicates that an offer of employment may not be made until a potential candidate has been screened against both the state and federal databases of Medicaid excluded individuals."* This requirement was also set out in a state regulation, a special advisory bulletin and during a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program.

Accordingly, the Appellate Division rule that Petitioner received all the due process to which she was entitled as "it is not disputed that she received notice of the charge that led to her termination and was provided an adequate opportunity to contest same." Further, said the court, the fact the Petition allegedly regained her eligibility to participate in the Medicaid program based on her subsequent acquittal of the criminal charges brought against her "did not render irrational OPWDD's determination to terminate [Petitioner's] employment in the first instance" and affirmed Supreme Court's dismissal of her Article 78 petition.

*This requirement "was also set forth in a state regulation, a special advisory bulletin and a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program."

The decision is posted on the Internet at:

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

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April 9, 2019

Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention


The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.


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