May 31, 2019

An objection to a statement in a court's opinion that is determined to be "dicta" does not provide a basis for appeal

The views of a judge expressed in his or her opinion that do not have any impact or are required for the resolution or determination of a specific case before the court are referred to as dicta. They constitute statements in a court's opinion that go beyond the facts before the court and thus only reflect only the views of the writer of the opinion and although they might be interesting, and possibly instructive, they are not binding in subsequent cases as legal precedent. This appeal from a CPLR Articel 78 decision by Supreme Court concers an appeal of a statement by Supreme Court that the Appellate Division deemed to constitute dicta. 

College student A, attending College X, filed a complaint pursuant to College X's "Student Sexual Misconduct Policy" [Policy] alleging that another college student [Student B] attending College Y had violated the Policy during an incident that occurred off-campus. College X subsequently advised Student B that, after a thorough investigation, it had determined, by a preponderance of the evidence, that Student B had violated College X's Policy and that College X would contact College Y and provide it with a redacted copy of the investigation report and record documents.

Student B initiated a CPLR Article 78 proceeding seeking, among other things, [1] to annul College X's determination, contending that it was arbitrary and capricious and [2] to enjoin College X from giving the complaint and investigation record to College Y.

Supreme Court granted Student B's petition, finding that, because petitioner was not a student at College X and the alleged misconduct took place off campus, College X lacked jurisdiction under the Policy and, as such, College X's  determination was arbitrary and capricious.  In addition, Supreme Court opined that it "f[ound] that the conduct demonstrated by [College X] towards [Student B] during the initial course of this investigation was a clear violation of [Student B's] constitutional rights."

College X appealed the Supreme Court's ruling but only for the purposed of vindicating itself with respect to that part of the Supreme Court's decision that stated that College X had violated Student B's constitutional rights.

The Appellate Division, noting that College X did not challenge Supreme Court's holding that its decision was arbitrary and capricious, concluded College X's appeal sought only to vacate that part of the Supreme Court's decision finding that College X violated Student B's constitutional rights,

The Appellate Division, citing Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, pointed out that the focus of College X's appeal, therefor was appealing dicta, as the inclusion of that statements was "not necessary to resolve [the] issue." On the other hand, noted the Appellate Division, College X did to challenge Supreme Court's holding that College X's actions in this instance were arbitrary and capricious. As "disagreement with dicta does not provide a basis to take an appeal" the court said that "this issue is not properly before us", implying that neither was the issue concerning Supreme Court's holding that College X's actions were arbitrary and capricious as College X had not appealed that branch of the Supreme Court's ruling.

Although Student B, in effect, prevailed in the appeal of the Supreme Court's ruling filed by College X, the Appellate Division declined to issue sanctions, explaining that although [College X's] argument lacks merit, we do not find it to be frivolous."

The decision is posted on the Internet at:

May 30, 2019

Establishing a violation of a right to substantive administrative due process

The Plaintiffs in this action were formerly civil immigration detainees at the Orange County Correctional Facility [Jail] where they were treated for serious mental illnesses. Alleging that Orange County and some of its agencies and officials [Defendants] failed to provide planning for, or discharge plans upon release,* violated their substantive due process rights under the Fourteenth Amendment, Plaintiffs initiated litigation in United States District Court seeking relief under 42 U.S.C. §1983. The district court granted the Defendants’ motion to dismiss the complaint and Plaintiffs appealed .

The United StatesCourt of Appeals, Second Circuit, vacated the district court's ruling and remanded the matter to the district court for "further proceedings," finding that Plaintiffs "stated a plausible claim for relief under the Fourteenth Amendment for deliberate indifference to their serious medical needs."

Plaintiffs' complaint alleged that the Defendants were responsible for providing them with medical care while they were detained at a county detention facility [Jail] that houses civil immigration detainees pursuant to an intergovernmental agreement between Immigration and Customs Enforcement [ICE] and Orange County.**

Defendants asked the Circuit Court to dismiss the Plaintiffs' entire Complaint for failure to state a claim, contending that "there is no established substantive due process right to the post-release measures inherent in discharge plans." The Defendants argued that the government’s duty of care ends "the instant the inmate walks through the prison gates and into the civilian world, because that is when the inmate’s ability to secure medication or care on his own behalf is restored" to him or her."

Noting that "[t]his Court ... has never held that the state’s duties to an inmate or detainee extend beyond their release" ... Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential part of mental healthcare in institutional settings” and “Defendants are constitutionally obliged to provide Plaintiffs with adequate medical care while they are confined to immigration detention.”

Taking Plaintiffs’ allegations as true and drawing all reasonable, the Circuit Court said that it found that Plaintiffs "have plausibly alleged that discharge planning is an essential part of in-custody care" and concluded that despite the forward-looking nature of discharge planning, a claim for damages caused by the lack of it can be considered a claim for deprivation of in-custody care for purposes of the “special relationship” exception. However,  on remand it will be necessary for Plaintiffs to prove to a fact-finder that "the care they complain of is the type that should have been provided to  them during their detention."

Citing Pena v. DePrisco, 432 F.3d 98, the court explained that "those in civil detention, as were Plaintiffs in this case, are also afforded a right to be free from deliberate indifference to their serious medical needs." Further, "in order to establish a violation of a right to substantive due process, such a plaintiff must demonstrate not only government action but also that the government action was so ‘egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'”

While remaining the matter for factual development as Plaintiffs have adequately stated a claim, this does not mean that Plaintiffs have established their entitlement to relief and the will need to provide evidence to support their allegations. Further, opined the court, "Defendants have raised significant factual issues that need to be fleshed out through discovery, including whether the discharge planning measures Plaintiffs identify should be provided as part of in-custody care (rather than undertaken upon or after release), the medical effects of a temporary deprivation of psychotropic medication, the causal relationship between the alleged interruption in Plaintiffs’ treatment and the consequences they complain of, and whether the circumstances of Plaintiffs’ release were so unexpected that Defendants could not have anticipated, and properly planned for, their release at the time it occurred."

However, at this, the pleading stage, the Circuit Court indicated that it has simply held that Plaintiffs have adequately stated a Fourteenth Amendment substantive due process claim justifying vacating the district court's opinion and remanding the matter for "proceedings consistent with this opinion." The Circuit also noted that the district court, in addition, may consider various issues it did not reach in its opinion such as (1) whether the Plaintiffs adequately pled a county policy, practice, or custom for purposes of Monell liability***; (2) whether Plaintiffs have adequately stated a claim against [a named Defendant]; and (3) whether [that named Defendant] is entitled to qualified immunity.****

* Plaintiffs alleged that discharge planning is a routine and necessary component of institutional mental health treatment.

** The decision notes that the policies and protocols governing Defendants and others providing treatment at the Jail themselves demand such discharge planning. Both ICE and Orange County have written policies recognizing that mental health discharge planning is an essential component of mental health treatment in institutional settings.

*** Under Monell v. Department of Social Serv., 436 U.S. 658 (1978), a municipal government can be held liable under Section 1983 if a plaintiff can demonstrate that a deprivation of a federal right occurred as a result of a "policy" of the local government's legislative body or of those local officials whose acts may fairly be said to be those of the municipality.

**** "Qualified immunity" protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

The decision is posted on the Internet at:

May 29, 2019

Election of the forum in which the appeal is filed determines the procedures that are to be followed

Subdivision 1 of Section 76 of the Civil Service Law, "Appeals from determinations in disciplinary proceedings," in pertinent part provides that an officer or employee may appeal an adverse disciplinary determination made by the appointing authority to either [1] the State Civil Service [CSC] or the municipal civil service commission having jurisdiction or [2] filing a timely CPLR Article 78 action in Supreme Court.*

The New York City Department of Corrections [DOC] filed disciplinary charges against one of its employees [Petitioner] alleging Petitioner had violated certain DOC rules. DOC conducted a disciplinary hearing pursuant to Civil Service Law §75, during which proceeding Petitioner admitted having violated such rules. DOC found Petitioner guilty of the charges preferred against him and terminated his employment.

DOC then advised Petitioner that he could appeal the appointing officer's determination to either the Civil Service Commission [CSC] or to Supreme Court in accordance with CPLR Article 78. Petitioner was also advised that were he to elect to appeal to the CSC, CSC's determination would be final and conclusive.

Petitioner elected to appeal the determination to the CSC and, after a hearing, on August 20, the CSC affirmed the appointing officer's determination and the penalty imposed by the appointing authority. Petitioner then initiated a CPLR Article 78 proceeding seeking a judicial review the appointing officer's determination. DOC moved to dismiss the proceeding.

Supreme Court granted the DOC's motion dismissing Petitioner's Article 78 proceeding and Petitioner appealed.

Initially the Appellate Division noted that "[u]nless a shorter time is provided in the law authorizing the proceeding," an Article 78 action against a entity or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the person or entity seeking the judicial review.  Further, said the court, "An administrative determination becomes final and binding ... when the individual or body seeking review has been aggrieved by it".

In this instance the Appellate Division found that DOC's determination terminating Petitioner's employment was issued on June 4, 2015, and the CSC decision sustaining that determination was issued in August. As Petitioner did not commence this CPLR Article 78 proceeding until following February, the Appellate Division concluded that Petitioner's Article 78 proceeding was "time-barred."

In addition, the Appellate Division noted that Civil Service Law §76(3) provides that "[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court." Accordingly, said the court, because Petitioner elected to appeal to the CSC, he may only seek judicial review if the DOC has acted illegally, unconstitutionally, or in excess of its jurisdiction. Here, however, the Article 78 petition submitted to Supreme Court did not allege or present facts demonstrating that the DOC acted illegally, unconstitutionally, or in excess of its jurisdiction. Accordingly, the Appellate Division held that Petitioner failed to state any basis upon which his appeal could be considered by the court.

* An appeal to the State or municipal commission must be filed in writing within twenty days after service of written notice of the disciplinary determination. In the event such notice is provided by registered mail, an additional three days to file the appeal is permitted.

The decision is posted on the Internet at:

May 28, 2019

Challenging an unsatisfactory annual performance rating

An educator [Petitioner] challenged his unsatisfactory annual performance review rating but Supreme Court granted the appointing authority's cross-motion to dismiss the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's action.

The Appellate Division said:

1. The Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith;

2. The record established that there was a rational basis for the determination to uphold petitioner's U-rating, which was based on insubordination and unprofessional conduct during the relevant school year; and

3. The Petitioner failed to demonstrate that there were procedural deficiencies in the performance review process resulting in the U-rating that undermined the integrity or fairness of the process.

The decision is posted on the Internet at:

The anatomy of a challenge to a civil service commission's action rescinding an employee's appointment based on a criminal conviction

In consideration of the employee's [Plaintiff's] criminal history, the County Civil Service Commission [Commission] revoked Plaintiff's eligibility, certification and appointment to his Title A position, resulting in the termination of Plaintiff from service. The Commission also disqualified and removed the Plaintiff's name from an eligible list for appointment to a different title, Title B. Plaintiff initiated an Article 78 action challenging the Commission's decisions.

The record indicates that Plaintiff, in connection with his application for Title A, disclosed certain criminal history to the Commission. The Commission later sent letters to Plaintiff seeking additional documents and information concerning his criminal history. Although Plaintiff did not provide the documents sought by the Commission,* as the result of an administrative error, Plaintiff was certified eligible and, subsequently, appointed to the Title A position.

Subsequently, the County facility where Plaintiff worked was to be privatized. In accordance with an agreement enabling employees who did not want to work for the privatized company to be transferred to other job titles or work locations, Plaintiff applied for the Title B position and in connection with his application for the Title B position Plaintiff disclosed prior criminal convictions that had not been disclosed when he applied for the Title A position.

Ultimately the Commission notified Plaintiff that it was revoking his eligibility certification and appointment, terminating his employment in Title A and disqualifying him from the eligible list for the Title B position. The reasons advanced by the Commission for its actions with respect to the Title B position were Plaintiff's "disrespect for the process of law and order as evidenced by your record of convictions and failure to cooperate with your investigation." Plaintiff appealed the Commission's decision, submitting letters attesting to his good character and good work performance, as well as educational and training certificates he had earned. The Commission then advised Plaintiff that "it had determined that the 'original notification of disqualification stands,' and that [Plaintiff] will be terminated from his [Title A] position and removed from [Title B eligible list].

Plaintiff thereupon commenced his CPLR Article 78 proceeding challenging the Commission's  determination. Supreme Court, granted so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for the Title B position. The Commission appealed the Supreme Court's determination but the Appellate Division sustained the lower court's ruling.

The Appellate Division addressed a number of elements crucial to its consideration of the Commission's appeal.

Procedure: Judicial review of an administrative determination made without a formal hearing is limited to whether the determination was arbitrary or capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end.**

Controlling statutory law: Civil Service Law §50[4] provides that the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment . . . provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

In this instance the Commission's determination to revoke the Plaintiff's eligibility certification and appointment and terminate his employment in Title A found arbitrary, capricious, and without a rational basis in the administrative record as Plaintiff was appointed to this position in 2011. Accordingly,, the Commission was precluded from revoking his certification and terminating his appointment from his Title A position in 2016 except for fraud. The Commission, however, did not alleged it bases its determination on the ground of fraud.***

Considering the Commission's determination to disqualify the Plaintiff from the eligible list for the Title B position, the Appellate Division concluded that its ruling was arbitrary, capricious, and without a rational basis in the administrative record as it was conceded that Plaintiff disclosed his prior convictions when seeking employment in a Title B position. Further, opined the court, "the record provided no sound basis to conclude that the Plaintiff failed in 2016 to cooperate with the investigation or to disclose material facts."

Addressing Plaintiff's criminal convictions, the Appellate Division cited Article 23-A of the Correction Law, explaining that this provision "protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination" and prohibits both public sector and private sector employer to deny a license or employment application by reason of the individual's having been "previously convicted of one or more criminal offenses" absent one of two exceptions permitted set out Correction Law §752 in applies.**** These exceptions are:

[a] There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

[b] The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"

The Appellate Division said that there nothing in the record indicating that the Commission determined that an exception to Correction Law §752 was applicable or considered the factors to be applied in making that determination.

Thus, said the Appellate Division, it agreed with the Supreme Court's determination granting so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for appointment to the Title B  position.

* Plaintiff later contended that during the investigation into his criminal background he disclosed certain criminal convictions, but was not asked about certain other out-of-state convictions, explaining that he was under the impression that the additional documents the Commission sought pertained to an investigation for a different position that he had applied for, but in which he was no longer interested.

** Where an administrative adjudication made after a formal hearing, Supreme Court would transfer an Article 78 petition seeking judicial to the Appellate Division.

*** Citing Giangiacomo v Village of Liberty, 50 AD2d at 666, the Appellate Division observed that "under the circumstances presented, the record did not reveal the existence of fraud of a substantial nature" in connection with Plaintiff's application for examination and appointment to Title A.

**** Correction Law §753 sets out eight factors an employer is to consider when evaluating an applicant with a criminal record for employment.

The decision is posted on the Internet at:

May 26, 2019

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."
The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

May 24, 2019

Application for a professional license denied based on a finding that the applicant lacked "good moral character"

New York State's Education Law §8405[3][f] requires that an applicant for a New York State psychoanalyst license must "[b]e of good moral character."

In this CPLR Article 78 action, an applicant [Petitioner] for "licensure as a psychoanalyst" challenged the rejection of his application based on the New York State Department of Education's [SDE] determination that Petitioner "lacked good moral character." Supreme Court transferred the Article 78 action to the Appellate Division.*

The Appellate Division's decision indicates that Petitioner had been licensed as a social worker by SDE in 1984 and subsequently was a licensed clinical social worker [LCSW] in several other states. At the time Petitioner applied for a New York State psychoanalyst license he was living in another state and held a LCSW a license issued by the state in which he then resided.

The reasons advanced by SDE in support of its decision to deny Petitioner "licensure as a psychoanalyst" included the following:

[a]  In 2003 Petitioner pleaded guilty in Rockland County Court to grand larceny in the third degree in full satisfaction of multiple charges pertaining to false billings submitted to a private insurance company during the period June 1999 to August 2001 and his New York license was suspended for one year;

[b] In 2005 Petitioner pleaded guilty, again in Rockland County Court, to two counts of grand larceny in the second degree, admitting that he filed false claims with the state and federal Medicaid programs and was allowed to surrender his New York license;** and

[c] Following testimony from Petitioner and several witnesses on his behalf, the SDE Hearing Panel determined that Petitioner did not meet the moral character requirement and that the application should be denied, which decision was sustained by SDE's Committee on the Professions.

 The Appellate Division observed that:

[1] "[W]hether an applicant seeking professional licensure has demonstrated "good moral character" is to be determined by the appropriate body and if "made after an evidentiary hearing", the determination will be upheld if supported by substantial evidence;"*** and

[2]  §752 of the Correction Law provides that a license application shall not "be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of 'good moral character' when such finding is based upon [the prior convictions], unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license ... sought ...; or (2) the issuance ... of the license ... would involve an unreasonable ... to the safety or welfare of specific individuals or the general public."

Noting that the parties agreed that the above cited standard applied here, at issue was SDE's determination that both exceptions have been established, i.e., that [1] there is a direct relationship between Petitioner's convictions and the work of a psychoanalyst and [2] that the issuance of a license to Petitioner would present an unreasonable risk to the safety and welfare of the public. 

Although Petitioner contended that SDE failed to consider the specific factors outlined in Correction Law §753 in making this determination, the Appellate Division said that its review of the record "shows otherwise" in that SDE "reasonably determined that Petitioner's improper billing practices as an LCSW were directly relevant to the same responsibilities that he would have to his clients and the involved insurers as a licensed psychoanalyst."

The decision also notes that Petitioner receive a certificate of relief from disabilities for his first conviction as provided by Correction Law §753[2]) but Petitioner's other convictions came two years later.

In consideration of the records before it, the Appellate Division found that the determination denying Petitioner's license application was supported by substantial evidence.

* CPLR §7804[g], in relevant part, provides that Supreme Court shall transfer an Article 78 action to the Appellate Division in the event an administrative determination required by law was after a hearing at which evidence was taken.

.** The decision notes that Petitioner retained his LCSW license issued by another state "under supervision".  

*** Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

May 23, 2019

Declining a particular fringe benefit does not convert the value of the employer's contribution for such benefit into additional salary or other compensation

The appointing authority [Town] employed two town justices. Both justices have the same job functions and receive an identical annual salary. The Town also offers both town justices the opportunity to participate in its employee health insurance plan. While the Justice A elected to participate in this plan, Justice B elected not to do so and, in lieu of receiving health benefits, made several unsuccessful requests seeking additional compensation equal to the cost of the "employer contribution" to the Town to provide Justice A with health insurance coverage.

Ultimately Justice B sent a letter to the Town's supervisor formally requesting this additional compensation, contending that health insurance coverage was a component of a town justice's salary and that, because her fellow town justice was receiving this benefit and she was not, she was being compensated less than the other justice in violation of Town Law §27.1. After Justice B's request was denied by the Town, she initiated an Article 78 action seeking, among other things, a declaration that the Town's denial of her request for additional compensation violated Town Law §27.1. The Town answered the petition and, following oral argument, Supreme Court found Justice B's claim to be without merit and dismissed her petition and complaint. Justice B appealed the ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that Town Law §27.1  provides, in relevant part, that "[t]he town board of each town shall fix . . . the salaries of all officers and employees of said town" and that "the salaries of all town justices shall be equal," unless otherwise agreed upon by a majority vote of the town board."

Although §27 does not define the term "salary," the Appellate Division noted that in Bransten v State of New York, 30 NY3d 434 the Court of Appeals, considering the State Constitution's Judicial Compensation Clause, Article VI, §25[a], and held that the state's employer contributions toward a justice's health insurance coverage "is not part of [his or her] judicial salary" nor considered "a permanent remuneration for expenses necessarily incurred in fulfillment of judicial obligations."

Finding that both Town Justice A and Town Justice B have received identical salary and benefits, "including eligibility to participate in the Town's health insurance plan," the Appellate Division opined that the fact that Justice B had chosen to forgo participating in the Town's health insurance plan did not transform the Town's employer contribution towards the plan it made on behalf of Justice A, who did elect to participate in the Town's health insurance plan, into some form of salary differential forbidden under Town Law §27.1.

According, the Appellate Division said it agreed with Supreme Court that the Town's denial of Town Justice B's request for additional compensation did not violate Town Law §27.1.

The decision is posted on the Internet at:

May 22, 2019

Seeking a writ of mandamus to compel a public entity to perform a certain action

For many years, Binghamton City Court [City Court] used docket books maintained in hard copy used by the plaintiff to personally compile lists of adjudicated summary eviction proceedings. However, at some point, City Court discontinued their use of hard copy docket books and began maintaining court records electronically. Beginning in 2015, Plaintiffs made several written requests to City Court for all summary eviction proceedings that had been adjudicated since January 1, 2014.

Plaintiff was advised that City Court did not maintain its records in the specific manner that he was requesting and that he could access the electronically-stored court records by providing a case name or index number. In addition, the Town of Union Court [Town Court] similarly notified Plaintiff that it did not maintain a running list of summary eviction proceedings in a form that he had requested.

Ultimately Plaintiff commenced a CPLR Article 78 proceeding in the nature of mandamus seeking to compel City Court and Town Court to, among other things, "maintain all court records in a written form . . . [l]ike the old docket books" and, since the records were maintained electronically, to provide the requested information "on a disk in a form that could be easily used by the public."

City Court answered Plaintiff's petition and alleged that Plaintiff had failed to state a claim. Town Court submitted an affidavit in opposition to Plaintiff's petition, requesting that the petition be dismissed, indicating that, although under no obligation to do so, it had employed an outside information technology company to create the list sought by Plaintiff. Supreme Court ultimately dismissed the petition and Plaintiff appealed.

The Appellate Division, citing Matter of County of Chemung v Shah, 28 NY3d 244, affirm the lower court's ruling, explaining that a "writ of mandamus"* is an extraordinary remedy that lies only to compel the performance of "an administrative act positively required to be done by a provision of law." In the words of the Appellate Division, "[s]uch a writ will not be awarded to compel the performance of an act involving the exercise of judgment or discretion or to direct the manner in which a public official carries out his or her legal duty to complete a ministerial act."

Finding that the records demonstrated that both City Court and Town Court were satisfying their duties under Judiciary Law §§255 and 255-b by maintaining an electronic docketing systems that was available for search and examination by members of the public with the assistance of court staff, the Appellate Division ruled that neither City Court nor Town Court were statutorily required to maintain their respective court dockets "in the particular manner requested by Plaintiff or create the list that Plaintiff desires."

Finding that City Court and Town Court cannot be compelled to perform their ministerial duties in the specific manner sought by Plaintiff, the Appellate Division ruled that Supreme Court had properly dismissed the Plaintiff's Article 78 petition.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

May 21, 2019

Under certain circumstances a court may order the New York State Public Employment Relations Board to issue determinations on pending improper practice charges

Petitioner in the Article 78 action had filed two improper practice charges with the Public Employment Relations Board [PERB] in 2014. Contending that PERB had yet to issues its determinations concerning these charges, in 2018 Petitioner initiated a CPLR Article 78 proceeding, seeking a court order compelling PERB to issue determinations on these two improper practice charges then pending before it, naming PERB and the State of New York [State] as respondents,.

In lieu of filing an answer to Petitioner's complaint, PERB moved to dismiss the petition for, among other reasons, Petitioner's alleged failure to exhaust administrative remedies. State, in lieu of filing an answer to Petitioner's complaint, separately moved to dismiss the petition with respect to it, alleging that it "was not a proper party to the proceeding."

The Supreme Court [1] granted the State's motion to dismiss it from the proceedings on the ground that it was not a proper party to the proceeding; [2] denied PERB's motion to dismiss the action on the grounds that petitioner "had failed to exhaust" administrative remedies; and [3] granted Petitioner's petition on the merits, directing PERB to issue determinations on Petitioner's improper practice charges within 60 days of the serving of the court's order, with notice of entry, on PERB.

PERB appealed the Supreme Court's ruling to the Appellate Division, thereby "invoking an automatic stay of Supreme Court's judgment."*

While the appeal was pending in the Appellate Division, however, PERB issued it's decisions on Petitioner's improper practice charges, thus providing Petitioner with all of the relief that he requested in his CPLR petition. 

The Appellate Division, observing that "the rights of the parties would not be affected by a determination" of PERB's appeal"on the merits," rejected PERB's contention that exceptions** to the mootness doctrine applied in this action. The court explained that the controversy presented by this case "evaded its review solely because PERB issued the requested determination during the pendency of the appeal."

Holding that the controversy between Petitioner and PERB had been resolved as the result of PERB's issuing the determinations demanded by Petitioner, the Appellate Division dismissed PERB's appeal as moot.

* See CPLR §5519[a][1], which, in pertinent part, provides for a stay of the enforcement of a court decision without a court order upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal where "the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state."

** Claims of exception to the mootness doctrine typically require the court to consider three issues: [a] is the question presented of a substantial public nature; [b] is there is a need for an authoritative determination for the future guidance of public officers; and [3] is there a likelihood of future recurrence of the question [see Hearst Corp. v Clyne, 50 NY2d 707].

The decision is posted on the Internet at:

May 20, 2019

Adjudicating claims filed against an employer alleging disability discrimination and retaliation pursuant to the Americans with Disabilities Act

The Federal District Court dismissed an employee's [Petitioner] claim that his public employer [City] had unlawfully discriminated against him and took retaliatory actions against in violation of the Americans with Disabilities Act [ADA] and the New York State Human Rights Law [NYSHRL].

Petitioner appealed the district court's ruling to the United States Circuit Court of Appeal, challenging three conclusions of the District Court that Petitioner:

[1] was not disabled after he returned to work;

[2] failed to show the existence of an accommodation that would allow him to
perform the essential functions of his employment; and

[3] did not produce evidence sufficient to show discrimination or retaliation.

Deciding that it need not consider Petitioner's first challenge, i.e., did the District Court erred in determining that Petitioner was disabled after he returned to work as, assuming, but not deciding that Petitioner was disabled after he returned to work,* the Circuit Court held that Petitioner's "claims fail as a matter of law" as he did not meet his burdens of "both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment.”

The Circuit Court explained that Petitioner failed to provide evidence of a reasonable accommodation, which “may include modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” Thus, said the court, Plaintiff's failure to accommodate claim fails as a matter of law, citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131.

Turning to Plaintiff's claim that he suffered discrimination and retaliation based on his three-day and subsequent termination from his position. Plaintiff argued that the City's discriminatory or retaliatory intent was demonstrated by "[a] the temporal proximity between his placement on light duty and his suspension the following business day and [b] the failure of the employer "to engage with him in an interactive process to identify a potential reasonable accommodation."

The City rebutted these allegations by explaining that Petitioner's suspension and later termination resulted from Petitioner's "numerous disciplinary infractions, several of which pre-date the time of his first injury."

Conceding that “A plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action” and that “an employer’s failure to engage in a good faith interactive process [to identify a reasonable accommodation] can be introduced as evidence tending to show disability discrimination,” the Circuit Court opined that "temporal proximity alone is 'insufficient to satisfy [plaintiff’s] burden' at the third stage of the McDonnell Douglas analysis." Considering his "prolific and longstanding disciplinary record," the court held that Plaintiff had not adduced sufficient evidence for a reasonable jury to conclude that the City had suspended or terminated Plaintiff for discriminatory or retaliatory reasons rather than as a result of his disciplinary problems.

Finally, said the court, "for the same reasons stated above, even assuming without deciding that an ADA mixed-motive discrimination claim under the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 ... is still viable after Gross v. FBL Fin. Servs., Inc., 557 U.S. 167," Plaintiff failed to produced evidence warranting a shift in burden under Price Waterhouse.

The Circuit Court explained that “[T]o warrant a mixed motive burden shift, the plaintiff must be able to produce a smoking gun or at least a thick cloud of smoke to support his [or her] allegations of discriminatory treatment.”

Accordingly, the Circuit Court of Appeals affirmed the judgment of the District Court.

* The Circuit Court of Appeals noted that Petitioner did not argued that the District Court erred by dismissing his NYSHRL claims for the same reasons as his ADAclaims.

The decision is posted on the Internet at:

May 17, 2019

An attorney admitted to the New York State Bar is subject to the State's registration requirements as long as he or she remains "duly admitted to the bar"

22 NYCRR 118.1 [a]-[c] provides that the registration requirements for attorneys applies "for as long as the attorney remains duly admitted to the New York bar" and such registration may only be terminated by the attorney's death, disbarment or formal resignation upon order of the Appellate Division.* Attorneys once admitted to practice law in New York State are required to register with the Office of Court Administration biennially.

An attorney was admitted to practice in New York State in 1982 and listed his business address as being in another state. When the attorney sought to leave to resign from the New York State bar for nondisciplinary reasons as permitted by 22 NYCRR 1240.22 [a], the Attorney Grievance Committee [AGC] opposed the attorney's application because the attorney was not current in his New York attorney registration requirements, having failed to timely register for his biennial period registration period, which commenced in 2018.

The Appellate Division found that "[i]nasmuch as [the attorney] was subject to potential disciplinary action as a result of such failure to register, the attorney was ineligible for nondisciplinary resignation and his application must be denied.

The court, citing Matter of Frank, 146 AD3 1228, opined that any future application by the attorney to resign from the New York State Bar must be supported by proof of his full satisfaction of the requirements of Judiciary Law §468-a and 22 NYCRR 118.1.**

In contrast, an attorney admitted to practice in New York State by the Appellate Division in 1996 and whose business address was on record with the Office of Court Administration, as being in another state, applied for leave to resign from the New York State bar for nondisciplinary reasons.

The AGC opposed the application, contending that attorney was ineligible for nondisciplinary resignation because he has failed to fulfill his New York State attorney registration requirements for the most recent biennial period, which began on his date of birth in 2018. However, Office of Court Administration records establish that the attorney had, in fact, become current in his New York State attorney registration obligation and cured any preexisting registration delinquency.

Accordingly, as the AGC had advanced no other substantive objection to the attorney's application seeking to resign from the New York State Bar, the Appellate Division determined that the attorney was then eligible to resign from the New York State Bar for nondisciplinary reasons and granted his application and accepted his resignation. ***

* See Rules for Attorney Disciplinary Matters, 22 NYCRR 1240.22 [a].

** This decision is posted on the Internet at:

*** This decision is posted on the Internet at:

May 16, 2019

If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public.

The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, the Appellate Division sustained a Supreme Court's ruling that a report prepared by an outside consultant for the agency was not shown to be eligible for the "intra-agency materials exemption" permitted by FOIL.

Public Officers Law §87 sets out the "ground rules" for a party accessing government records. Certain records, however, may be exempt from such disclosure including inter-agency or intra-agency materials other than statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; and iv. external audits, including but not limited to audits performed by the State Comptroller and the federal government.

In this instance the Appellate Division found that the agency failed to establish that it retained its outside consultant "for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant." In the words of the Appellate Division, " Supreme Court correctly held that [the agency] failed to meet its burden of showing that the intra-agency materials exemption applies, and properly directed [the agency] to produce an unredacted copy of the subject report."

The Appellate Division, however, remanded the matter to Supreme Court for further proceedings, explaining that Supreme Court failed to address the Petitioners' request for an award of reasonable attorneys' fees.

As the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67,FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Further, in a FOIL proceeding, the court shall provide for the agency to pay "reasonable attorney's fees and other litigation costs" reasonably incurred by a plaintiff where "such person has substantially prevailed" and, or, when the agency failed to respond to a request or appeal within the statutory time.

Further, noted the Appellate Division, the attorneys' fees provision of FOIL was amended to provide that the court "shall" award counsel fees where the agency has no basis for denying access to the material sought," and that an award of attorney's fees is intended to "encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding."**

* Examples of laws prohibiting the release of certain public records pursuant to a FOIL request include Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** Chapter 453, Laws of 2017

The decision is posted on the Internet at:

May 15, 2019

Disciplinary hearing decisions handed down by Administrative Law Judges of the Office of Administrative Tribunals and Hearings

A correction officer was charged with using excessive force and submitting a false report concerning force used by officers in subduing a group of inmates. At trial petitioner presented testimony of an investigator and video of the incident. The officer testified on his own behalf, denying that his report was false. Following the officer’s testimony, petitioner withdrew the excessive force charge. ALJ John B. Spooner recommended dismissal of the false report charge, finding the video did not show that the officer was in the vicinity of where force was used against the inmate. Dep’t of Correction v. Smith, OATH Index No. 1001/19 (Apr. 2, 2019).

An emergency medical technician (“EMT”) was charged with leaving a patient in the care of persons who were not medically trained, refusing an order to undergo substance use testing, being absent without leave, falsely reporting that a patient had flagged down an ambulance so that he could eat his meal, creating a false patient care report for a nonexistent patient, forging his partner’s signature on the false patient care report, and testing positive for a controlled substance. Following a two-day trial where petitioner presented testimony from seven witnesses and documentary evidence, and the EMT testified on his own behalf, ALJ Astrid B. Gloade sustained the charges and recommended termination of the EMT’s employment. Fire Dep’t v. Gala, OATH Index No. 2772/18 (Apr. 16, 2019), adopted, Comm’r Dec. (May 7, 2019).

A medicolegal investigator was charged with negligently failing to take jurisdiction over one case, failing to perform adequate investigations of six other cases, and being discourteous during a phone conversation with a decedent’s daughter. ALJ Kevin F. Casey sustained the charge that the investigator negligently failed to take jurisdiction over a case involving a 12-year old boy with a dislodged tracheostomy tube, who died after he was transported from school to the hospital. He found that in four instances petitioner showed the errors were so serious that they amounted to misconduct and he sustained that charge in part. He dismissed the discourtesy charge. A 40-day suspension was recommended. Dep’t of Health & Mental Hygiene v. Yee, OATH Index No. 520/19 (Apr. 5, 2019).

A correction captain was found to have been excessively absent over a 17 month period. All but two days of absence were due to psychological disability caused by an inmate assault. The captain had returned to her post for three months, when petitioner ordered her out on leave for the next four months. The captain has since returned to work. Petitioner sought termination of the captain’s employment, but ALJ Casey found that would be unduly harsh. Noting that the available penalties under section 75 of the Civil Service Law are limited, he recommended a 30 day suspension, but he urged the parties to consider an alternative, appropriate remedy, such as a leave of absence, probation, or holding the penalty in abeyance. Dep’t of Correction v. Anonymous, OATH Index No. 348/19 (Apr. 29, 2019).

May 14, 2019

Releasing the body camera footage recorded by equipment worn by a police officer

§50-a of the New York State Civil Rights Law addresses the release of personnel  records  of  police  officers,  firefighters  correction  officers and incumbents of certain other positions "used   to   evaluate   performance  toward continued employment or promotion," which are considered confidential and which are not subject to inspection or review without the express prior written consent of the individual "except as may be mandated by lawful court order."

The Patrolmen's Benevolent Association of the City of New York [PBA] challenge New York City's public release of police department body-worn-camera footage without a court order or the relevant officers' consent claiming such release was subject to the mandates of Civil Rights Law §50-a. Supreme Court denied the PBA's petition, ruling that the PBA could not maintain the hybrid action "because there is no private right of action under Civil Rights Law §50-a" and granted New York City's cross motion to dismiss the PBA's petition.

PBA appealed the Supreme Court's ruling, which was subsequently unanimously affirmed by the Appellate Division but on grounds that differed significantly from those articulated by the lower court in its opinion.

The Appellate Division held that although §50-a "does not provide a private right of action" this does not preclude a review of PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review."

That said, the Appellate Division proceeded to deny the PBA's petition, explaining that the key element was whether the " body-worn-camera footage" constitute a "personnel record" within the meaning of under Civil Rights Law §50-a which sets the "threshold criterion" as whether the documents (or a summary of the documents) are "of significance to a superior in considering continued employment or promotion."

Noting that the Court of Appeals in Matter of Prisoners' Legal Services, 73 NY2d at 32 indicated that whether a document "containing personal, employment-related information about a public employee," that is under the control of the agency, and "relied upon in evaluating the employee's performance" is covered by Civil Rights Law §50-a "depends upon its nature and use in evaluating an officer's performance." Further, said the Appellate Division, in Daily Gazette Co. v City of Schenectady, 93 NY2d 145, the Court of Appeals held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.

PBA had argued that the body-worn-camera was designed, in part, for performance evaluation purposes and is "clearly 'of significance' to superiors in considering employment or promotion" and that the court's holding that body-worn camera footage is not a personnel record "would result in an unprecedented invasion of privacy."

Recognizing PBA "valid concerns about invasion of privacy and threats to the safety of police officers," the Appellate Division, considering the record's general "nature and use," and not solely whether it may be contemplated for use in a performance evaluation, found that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a." 

In the words of the court, were body-camera footage deemed a "personnel record" within the meaning §50-a, it could sweep into the purview of §50-a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by §50-a."

The court concluded that "given its nature and use," the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes but is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. "To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability."

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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