Challenging the discontinuation of benefits being received pursuant General Municipal Law §207-c disability benefits following a work-related accident

A deputy sheriff [Deputy] was injured in a work-related motor vehicle accident and while on leave for his injuries, began receiving pay and benefits pursuant to General Municipal Law §207-c. Deputy was subsequently notified by the County that his benefits were being terminated because a form provided by one of the Deputy's physicians indicated that Deputy was able to return to a modified work position and was simultaneously offered a light-duty assignment by the Sheriff's Office. Deputy was also advised that his declining the light duty assignment "may affect continuation of his General Municipal Law §207-c benefits."

Deputy declined the light duty assignment offer, citing his injuries, and requested a hearing as provided for in the applicable collective bargaining agreement. The Hearing Officer issued a report finding, among other things, that Deputy's benefits had been improperly terminated and recommended that they be reinstated retroactively. The Sheriff [Respondent] rejected the Hearing Officer's findings and recommendation, without providing any explanation or findings in support of the determination.

Deputy filed an action pursuant to CPLR Article 78 seeking, among other things, a court order annulling the Sheriff's determination. As the petition raised a question of substantial evidence, Supreme Court transferred the matter to the Appellate Division for further consideration.

Noting that the Hearing Officer had made findings of fact and concluded that Respondent had committed multiple procedural errors in terminating Deputy's benefits and that the Sheriff, in rejecting the Hearing Officer's recommendation, had not provided any explanation or factual findings, the Appellate Division commented that "Administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

Explaining that it could not conduct a meaningful judicial review in view of  the Sheriff's failure to make any findings or otherwise specify any basis for the apparent continued termination of Deputy's General Municipal Law §207-c benefits, the Appellate Division annulled the Sheriff's determination and returned the matter to the Sheriff "to address the procedural issues and develop appropriate factual findings."

Citing Simpson v Wolansky, 38 NY2d 391, the court opined that "the issue is not whether the Hearing Officer's report and recommendation is supported by substantial evidence; rather, the issue is whether the Sheriff's determination is supported by substantial evidence."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04805.htm

__________________

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  

http://booklocker.com/books/3916.html

Some of the elements consider by the courts when an educator challenges his dismissal during his probationary period

The Appellate Division affirmed Supreme Court's denying a probationary employee's [Petitioner] CPLR Article 78 petition seeking a court order annulling a city school district's terminating Petitioner's* employment.

The court opined that:

1. It perceived no basis for finding that Petitioner's termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," citing Matter of Mendez v New York City Dept. of Educ., 28 NY3d 993;

2.  Evidence in the record indicated that Petitioner received both "ineffective" and "developing" ratings on more than one occasion, supporting the conclusion that the determination to terminate him prior to the completion of his maximum  probationary period was not made in bad faith;

3. Petitioner was given timely notice of the possibility that his probationary employment would be terminated as mandated by Education Law §2573[1]*;

4. Petitioner was provided with support and any alleged deviations from internal procedures did not deprive him of a substantial right or undermine the fairness and integrity of the rating process followed by the school district; and

5. The record contained evidence of Petitioner's persistent and unresolved issues despite ongoing efforts by school administrators to help him improve his instructional methods.

* §2573[1] of the Education Law addresses the appointment and removal of probationary assistant, district or other superintendents,  teachers and other employees employed by a city school district having 125,000 or more inhabitants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05090.htm

Courts impose stricter standards than required by CPLR Article 75 when considering a petition seeking to vacate an arbitration award promulgated pursuant to compulsory arbitration

The educator [Petitioner] in this CPLR Article 75 action appealed the Supreme Court's granting the appointing authority's motion to confirm an arbitration award terminating Petitioner's employment as a teacher, denied her petition seeking to vacate the award and dismissed the proceeding. Petitioner appealed but the Appellate Division unanimously affirmed the lower court's rulings.

Education Law §3020-a(5) provides that judicial review of a hearing officer's findings is limited to the grounds set forth in CPLR 7511(b), which provides that the court may vacate the award in the event it finds that the rights of the party challenging the award were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except  where  the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so  imperfectly executed it that a final and definite award upon  the subject matter submitted was not made; or

(iv) failure to follow the CPLR Article 75 procedures, unless the party applying  to vacate the award continued with the arbitration with notice of the defect or defects and without objection.

Where, however, the parties have submitted to compulsory arbitration, as was here the case, judicial scrutiny is stricter in that the determination must be in accord with due process, supported by adequate evidence, be rational, and not arbitrary and capricious, the criteria required to be met in adjudicating final administrative disciplinary determinations in CPLR Article 78 proceedings.

The Appellate Division held that arbitrator's decision here being challenged was based on sufficient evidence, was rational, and was not arbitrary or capricious. Further, said the court, Petitioner did not dispute the absences and lateness noted in Specifications 1 through 6, which "the arbitrator properly found were excessive," and as to which the arbitrator noted that Petitioner failed to seek a medical accommodation until shortly before the charges were filed against her.

Further, noted the Appellate Division, Petitioner did not provide medical documentation supporting her claim that the absences and lateness were causally related to her medical condition.

Turning to the charges and specification alleging Petitioner had subjected a student to corporal punishment, the Appellate Division acknowledged the fact that the arbitrator had credited the student's testimony with respect to this element in the disciplinary action taken against Petitioner, and, citing Paul v NYC Department of Education, 146 AD3d 705, opined that a "hearing officer's determination of credibility is largely unreviewable."

Applying the Pell Doctrine set out in Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 22, the Appellate Division said that termination of Petitioner's employment does not shock the conscience given her repeated and prolonged attendance issues, which were the subject of two prior disciplinary proceedings, and her other substantial misconduct.

Citing Bolt v NYC Department of Education, 30 NY3d 1065, the court observed that although " .... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05088.htm

Court remands appeal to the employer "only for the development of appropriate written factual findings," not for a new evidentiary disciplinary hearing

In this somewhat convoluted litigation, the county's personnel officer [Petitioner] was suspended by the County Board of Supervisors [Respondent] with pay and thereafter Respondent served Petitioner with charges seeking to remove her the position for cause pursuant to §24.1 of the Civil Service Law.  §24.1 essentially provides that the officer or body having the power of appointment of the members of a municipal civil service commission or a personnel officer may at any time remove any such member or personnel officer for cause, after a public hearing, and appoint his successor for the unexpired term.*

Ultimately Respondent, following a hearing, determined that cause for Petitioner's removal existed and terminate her. Petitioner then initiated a CPLR Article 78 proceeding seeking to annul Respondent's determination.

Supreme Court transferred the matter to the Appellate Division. The Appellate Division concluded that it could not conduct a meaningful review of Respondent's determination because Respondent "did not make any findings of fact, despite having heard testimony from multiple witnesses and considering the admitted documentary evidence." The Appellate Division then "withheld decision" and remitted the matter for Respondent to develop appropriate factual findings.

Contending that this action by the Appellate Division had "essentially nullified" Respondent's determination with respect to her termination from her position, Petitioner demanded that Respondent reinstate her to her former position with back pay and benefits. When Respondent refused, Petitioner commenced a second CPLR Article 78 proceeding seeking reinstatement and back pay.

Supreme Court treated this second petition as one in the nature of mandamus ** and dismissed the petition, observing that Petitioner had failed to establish that she had a clear legal right to the relief sought. Petitioner then appealed this ruling as well but the Appellate Division sustained the Supreme Court's ruling.

The court then explained that Petitioner's demanded that she be reinstated to her position of personnel officer was based on an incorrect interpretation of its prior decision as that decision did not remit the matter to Respondent for a new evidentiary hearing, but, rather, "only for the development of appropriate written factual findings." This ruling by the Appellate Division is posted on the Internet, and its URL is set out at Footnote [3] below.

Respondent subsequently issued findings of fact and conclusions of law in support of its determination to remove petitioner from her position. Petitioner commenced another proceeding challenging the Respondent's response to the court's directive to make findings of fact. The Appellate Division's ruling is this regard is also posted on the Internet, and its URL is set out at Footnote [4] below.

Picking up at the point where Respondent issued findings of fact and conclusions of law in support of its determination, finding that Petitioner withheld relevant information and material from the County's labor attorney and submitted them to the Appellate Division, addressing the status of the several Article 78 actions initiated by Petitioner, explained that "Because we withheld decision, the [initial] matter was still pending before this Court and it was unnecessary for any party to commence a new proceeding. Nevertheless, as Petitioner has commenced this proceeding and moved to withdraw her petition in the 2015 proceeding, we now address the merits of Respondent's determination.

The Appellate Division concluded that Respondent's determination to remove Petitioner from office is supported by substantial evidence. Citing Civil Service Law §24.1 provides that "[t]he officer or body having the power of appointment of . . . a personnel officer may at any time remove any such . . . personnel officer for cause, after a public hearing."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the court opined that when reviewing an administrative determination rendered after a hearing that is required by law, the court's standard is whether the determination "is, on the entire record, supported by substantial evidence" which is a "minimal standard ... demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable." Thus the court may not substitute its judgment for that of the panel nor weigh the evidence presented, beyond assuring that there is substantial evidence.

The record establishes that two former employees commenced proceedings against the Respondent alleging that they were improperly terminated. An issue raised in each of those proceedings was whether Petitioner was interim or acting director of the County health department or held herself out as such. When defending the County in those proceedings, the Respondent and Petitioner denied these allegations.

According to the attorney representing the Respondent, Petitioner had affirmed that she had not been appointed to the position either officially or unofficially, that she had never held herself out as such and that she was not in any way acting or interim director of the health department. The attorney also indicated that she expected Petitioner to provide any documents in the Respondent's possession that were relevant to any issues in the proceedings.

The Appellate Division noted that the record contains numerous documents indicating that Petitioner held herself out as interim director of the health department and that Petitioner admitted in her testimony that at times she had done so. Although Petitioner provided reasons for her actions and asserted that the attorney was aware of this information during the prior proceedings, Respondent specifically discounted Petitioner's credibility and truthfulness as a witness. Moreover, even if the attorney obtained these documents at some point from other sources, the record indicated that Petitioner had not provided them to the attorney.

Accordingly, said the court, substantial evidence supports Respondent's determination to remove Petitioner for cause because she withheld relevant information and materials from the attorney, which the attorney should have been able to review to determine whether they were necessary or important to the defense of matters being litigated matters.

The Appellate Division also reject Petitioner's argument that Respondent's factual findings are defective due to not being signed by all members of the hearing panel. No statute or regulation requires a unanimous vote of a hearing panel to remove a public official pursuant to Civil Service Law §24.1 nor that all of the participating panel members sign a determination said the court, concluding that the signatures of five of the eight original participating panel members constituted sufficient approval of the factual findings.

As to the penalty imposed, termination, the Appellate Division indicated that "A penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," citing O'Connor v Cutting, 166 AD3d 1099. Further, said the court, the record reflects that the attorney relied primarily on Petitioner for correct information and evidence in defending the Respondent in the two proceedings, as she typically did in all labor proceedings, due to Petitioner's position as personnel officer. Notwithstanding the favorable decisions that the Respondent obtained in those two matters, the Appellate Division pointed out that Petitioner signed and submitted affidavits that contained false information, primarily because she failed to provide the attorney with relevant documents and accurate information.

Finally, the court pointed out that Civil Service Law §24 does not provide any disciplinary remedy other than removal of the incumbent from the position in contrast to Civil Service Law §75.3 which provides a range of penalties running from "a reprimand" to dismissal from the position. However, said the Appellate Division, even were imposing a lesser penalty possible, "it is not proper to substitute our judgment for that of [Respondent]" absent its finding that the  penalty of termination was shocking or disproportionate under the circumstances, i.e., the penalty imposed violated so-called "Pell Doctrine," Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

* §24.2, in pertinent part, provides that "A municipal civil service commissioner or personnel officer may be removed by the state civil service commission for incompetency, inefficiency, neglect of duty, misconduct or violation of the provisions of this chapter or of the rules established thereunder ...."

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ 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 injunction - a judicial order preventing a public official from performing an act; 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” [by what authority], requiring the target of the writ to explain the authority for the action challenged. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05031.htm 

and

http://www.nycourts.gov/reporter/3dseries/2019/2019_05035.htm 

The traditional common-law elements of negligence are "substantially relaxed" in cases where an employee of an interstate railroad seeks compensation for on-the-job injuries resulting from the railroad's alleged negligence

The Plaintiff in this action was working as an assistant conductor on MTA Metro-North's New Haven Line, [MTA] when she was physically attacked by a passenger while seeking to collect the passenger's fare. MTA Metro-North Railroad made a motion for summary judgment dismissing Plaintiff's sole claim under the Federal Employee Liability Act [FELA]. Supreme Court denied MTA's motion and MTA appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained:

1. The  FELA, 45 USC §51 et seq., provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence.

2. In an action under FELA, "the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" but these elements are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function."

3. A claim under FELA "must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing a plaintiff's injury" but, citing Pidgeon v Metro-North Commuter R.R., 248 AD2d 318, the court noted that "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury."

4. To establish the element of foreseeability, a plaintiff must show that the employer had either actual or constructive notice of the defective condition but notice generally presents an issue of fact for the jury to determine.

Thus, under the "relaxed standard," the court found that Plaintiff had submitted sufficient evidence to raise an issue of fact concerning MTA's actual or constructive notice of a risk of assault to conductors on the New Haven Line sufficient to be submitted to a jury based on Plaintiff testimony that:

[a] she was previously assaulted by a passenger;

[b] there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares;

[c] Plaintiff had testified that she has called the MTA's rail traffic controllers for police assistance at least 250 times to deal with abusive passengers;

[d] another conductor was punched in the face and knocked out; and

[e] a passenger attempted to stab and rob another conductor on the Harlem Line.

Considering this testimony, the Appellate Division held that Supreme Court's summary judgment rejecting MTA's motion to dismiss Plaintiff's complaint was properly denied.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05004.htm

Uniformed Services Employment and Reemployment Rights Act of 1994 Class Action claims survive employer's motion to dismiss the action

Some of the elements consider by the courts when an educator challenges his dismissal during his probationary period

The Appellate Division affirmed Supreme Court's denying a probationary employee's [Petitioner] CPLR Article 78 petition seeking a court order annulling a city school district's terminating Petitioner's employment.

The court opined that:

1. It perceived no basis for finding that Petitioner's termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," citing Matter of Mendez v New York City Dept. of Educ., 28 NY3d 993;

2. Evidence in the record indicated that Petitioner received both "ineffective" and "developing" ratings on more than one occasion, supporting the conclusion that the determination to terminate him prior to the completion of his maximum period of probation was not made in bad faith;

3. Petitioner was given timely notice of the possibility that his probationary employment would be terminated as mandated by Education Law §2573[1]*;

4. Petitioner was provided with support and any alleged deviations from internal procedures did not deprive him of a substantial right or undermine the fairness and integrity of the rating process followed by the school district; and

5. The record contained evidence of Petitioner's persistent and unresolved issues despite ongoing efforts by school administrators to help him improve his instructional methods.

* §2573[1] of the Education Law addresses the appointment and removal of probationary assistant, district or other superintendents,  teachers and other employees employed by a city school district having 125,000 or more inhabitants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05090.htm

Although seeking a hearing may be couched in permissive rather than mandatory terms, that will not excuse employee's failing to make a timely demand for such a hearing

A police officer's [Petitioner] initiated a CPLR Article 78 review a determination of the Village Mayor that the Petitioner application for a hearing and further evaluation of a determination of the Chief of Police denying Petitioner's application for benefits pursuant to General Municipal Law §207-c was untimely. Supreme Court sustained the Mayor's decision and Petitioner appealed.

The Appellate Division affirmed the lower court's ruling, explaining:

1. The basis for the Mayor's denial was that the Petitioner's request for a hearing and further evaluation was made more than 10 days after the Petitioner received the Chief's determination, which violated the time requirements set forth in Appendix C, §11 of the governing collective bargaining agreement [CBA] between the Village and the employee organization representing the Village's police officers.

2. A person aggrieved by an administrative determination must exhaust all available administrative remedies before seeking court intervention.

3. Although the CBA provided that the employee "may serve a written demand on the Mayor for a hearing and further evaluation of the application," was couched in permissive rather than mandatory terms, Petitioner was not excused from exhausting the administrative remedies available to him.

4. Here the  CBA's provisions governing an application for benefits pursuant to §207-c of the General Municipal Law are clear -- after an initial denial of benefits, they permit, but do not require, an employee to seek a hearing and further evaluation of the application from the Mayor.

Thus, said the Appellate Division, Petitioner "may" serve a written demand on the Mayor for such hearing and further evaluation but if Petitioner intended to do so the CBA requires Petitioner to do so by filing the written demand upon the Mayor within 10 days after receiving the decision denying benefits, opining that the use of the word "may" in §11 of the CBA simply provided Petitioner with the choice between seeking further review from the Mayor or accepting the Chief's denial of benefits.

In the opinion of the court, the Mayor's denial of Petitioner's demand for a hearing and further evaluation as untimely [1] was not rendered in violation of lawful procedure, [2] was not affected by an error of law, and [3] was not arbitrary or capricious or an abuse of discretion.

The Mayor, said the court, had examined the Chief's denial letter and the certified mail return receipt indicating the Petitioner's receipt of the letter on June 18, "correctly determined that the demand for a hearing ...  was untimely within the meaning of §11 of the CBA, and the mayor "had no discretionary authority to find otherwise," citing JP and Assoc. Corp. v NYS Division of Housing and Community Renewal, 122 AD3 739.

Accordingly, the Appellate Division concurred with the Supreme Court's determination denying the petition and dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04937.htm

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination

An employee [Petitioner] was involved in a romantic relationship with a coworker that ended acrimoniously. The appointing authority [Respondent] thereafter served Petitioner with an notice of discipline pursuant to Civil Service Law §75 alleging that Petitioner had "made numerous prank telephone calls to the coworker, mailed letters disparaging the coworker to other employees and mailed packages containing underwear and notes disparaging the coworker to one particular individual." The Petitioner was also charged that when questioned by representatives of the Respondent, Petitioner made numerous false statements to the interviewers.

Following a hearing, the Hearing Officer dismissed all but one of the allegations of harassment as untimely under Civil Service Law §75(4)* but determined that petitioner was guilty of the sole remaining allegation of harassment involving sending a package to another employee that contained underwear with a note suggesting that the employee may have contracted a sexually transmitted disease from the coworker. In addition, the Hearing Officer determined that Petitioner made three false statements during his questioning by the interviewers.

Based on these findings the Hearing Officer recommended that Petitioner be terminated, which findings and recommendations were adopted by the appointing authority, resulting in Petitioner's dismissal from the position.

Petitioner appealed, contending that efforts to questions the Hearing Officer "to determine if there was any basis to argue that the Hearing Officer was biased" and objected to Respondents' opening statements as being  improper as they "referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed."

The Appellate Division ruled that contrary to Petitioner's claim of a right to inquire as to whether the Hearing Officer was biased, Petitioner was not entitled to question the Hearing Officer to determine if there was any basis to argue that the Hearing Officer was biased, explaining that "There is a presumption of integrity on those serving as adjudicators . . . and hearing officers are presumed to be free from bias," citing Donlon v Mills, 260 AD2d 971, leave to appeal denied, 94 NY2d 752 . The court then opined that since Petitioner "failed to establish any reason to question the Hearing Officer's impartiality, [it found] no basis to annul the determination on that ground."

Addressing Petitioner's contention that Respondents' opening statements were improper inasmuch as they referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed, the court reject those contention's, indicating that with respect to statements concerning conduct underlying the charges that were ultimately dismissed as untimely, there was no impropriety because, had Respondents established that such conduct would have constituted a crime, they would not have been untimely. 

With respect to Petitioner's objections to statements concerning uncharged conduct, the Appellate Division said that the record "establishes that references to uncharged conduct were 'necessary to refute petitioner's attempts to explain his behavior' and his denials of guilt of the charged misconduct." Further, the decision indicates that the Hearing Officer "based his determination on specific and distinct findings as to each [specification] sustained; the dismissal recommendation was based on his finding that [Petitioner] was guilty of [four] very serious [specifications] of misconduct' . . . There is no record support for the contention that the determination or penalty recommendation was based on uncharged conduct."

In contrast, the Appellate Division found that Petitioner correctly contended that the Hearing Officer erred in relying on the preponderance of the evidence standard. However, opined the court, that error does not require it to annul the determination, explaining that the "preponderance of the evidence standard" used by the Hearing Officer "is a higher standard than the substantial evidence" standard Petitioner asserts should have been employed. Accordingly, the court found that Respondents satisfied a higher, rather than lower, standard of proof."

Concluding that Respondent's determination was supported by substantial evidence and the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness," the Pell Doctrine**, there was no abuse of discretion as a matter of law and unanimously confirmed Respondent's determination and dismissed Petitioner's complaint.

* Section 75.4, in pertinent part, provides that "no removal or disciplinary proceeding shall be commenced ... more than more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04834.htm

The traditional common-law elements of negligence are "substantially relaxed" in cases where an employee of an interstate railroad seeks compensation for on-the-job injuries resulting from the railroad's alleged negligence

The Plaintiff in this action was working as an assistant conductor on MTA's Metro-North's New Haven Line [MTA] when she was physically attacked by a passenger while seeking to collect the passenger's fare. MTA Metro-North Railroad submitted a motion for summary judgment dismissing Plaintiff's sole claim under the Federal Employee Liability Act [FELA]. Supreme Court denied MTA's motion and the Railroad appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained:

1.  FELA, 45 USC §51 et seq., provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence.

2. In an action brought pursuant to FELA, "... the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function."

3. FELA claim "must be determined by the jury if there is any question as to whether employer negligence played a part in the employee suffering an on-the-job injury, however small," but, citing Pidgeon v Metro-North Commuter R.R., 248 AD2d 318, the court noted that "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury."

4. To establish the element of foreseeability, a plaintiff must show that the employer had either actual or constructive notice of the defective condition but notice generally presents an issue of fact for the jury to determine.

Thus, under the FLEA "relaxed standard" applicable here, the court found that Plaintiff had submitted sufficient evidence to raise an issue of fact concerning MTA's actual or constructive notice of a risk of assault to conductors on the New Haven Line sufficient to be submitted to a jury based on Plaintiff testimony that:

[a] she was previously assaulted by a passenger;

[b] there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares;

[c] Plaintiff had testified that she has called the MTA's rail traffic controllers for police assistance at least 250 times to deal with abusive passengers;

[d] another conductor was punched in the face and knocked out; and

[e] a passenger attempted to stab and rob another conductor on the Harlem Line.

Considering this testimony, the Appellate Division held that Supreme Court's summary judgment rejecting MTA's motion to dismiss Plaintiff's complaint was properly denied.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05004.htm

State audits and examinations issued during the week ending June 21, 2019

On June 21, 2019, New York State Comptroller Thomas P. DiNapoli announced today the following audits and examinations have been issued.

Click on the text highlighted in blue to access the full text of the item.

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2015 and 2016 (2018-S-44)
The department established procedures to accurately report its assessable expenses for the two years ended June 30, 2016 for the Apple and Sour Cherry Market Orders and for the two years ended March 31, 2016 for the Apple, Cabbage, and Onion Research and Development Programs. The department should work with the state Urban Development Corporation to improve oversight of the Market Order Program, specifically the Apple Market Order and the New York Apple Association Inc. contract.

Department of Agriculture and Markets: Safety of Seized Dogs (Follow-Up) (2019-F-5)
An initial report issued in April 2018 determined the department was adequately overseeing the seizure of dogs to ensure their safety and protect the rights of owners. However, auditors identified four minor deficiencies at four of the 48 shelters they visited. In a follow-up, auditors found the department made progress in addressing the problems identified.

New York City Department of Education (DOE): Compliance With Special Education Requirements: Evaluations (2017-N-3)
The DOE had difficulty meeting the 60-calendar-day time frame requirement for completing evaluations, resulting in potential delays in the provision of services for students. A delay in services could adversely impact students’ educational growth.

Department of Health: Medicaid Program: Improper Medicaid Payments for Recipients Diagnosed With Severe Malnutrition (2017-S-85)
Auditors identified $416,237 in overpayments on inpatient claims that hospitals billed to Medicaid that contained a severe malnutrition diagnosis that medical records did not appear to support. Auditors found the hospitals were not following recommended guidelines for identifying and documenting severe malnutrition.

Department of Health: Medicaid Overpayments for Inpatient Care Involving Mechanical Ventilation Services (2018-S-45)
Auditors identified $975,795 in overpayments on 32 inpatient claims that reported 96 consecutive hours or more of mechanical ventilation services. Auditors found claims processing weaknesses that prevent eMedNY from identifying claims where 96 consecutive hours or more of mechanical ventilation services was not possible.

Metropolitan Transportation Authority (MTA) – New York City Transit and MTA Bus Company: Bus Wait Assessment and Other Performance Indicators (2017-S-54)
Transit’s Service Guidelines Manual contains transit and MTA bus minimum service frequency standards; however, auditors found the guidelines are not always met. Further, there was insufficient documentation to determine if scheduled service was reasonable. Auditors found there is a risk that the number of buses may have been inappropriate to meet customer needs.

New York State Health Insurance Program: CVS Health: Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (2018-S-50)
Auditors reviewed the rebate revenue generated from agreements with six drug manufacturers and found that CVS Health did not always invoice drug manufacturers for rebates, collect rebates from the manufacturers, or remit all rebate revenue to Civil Service. As a result, Civil Service is due $2,240,798 in rebates.

Office for People With Developmental Disabilities: Fuel Card (2018-BSE7-02)
Auditors found 119 purchases totaling nearly $8,000 made by one employee were not for legitimate business purposes, but instead for personal use. As a result of our examination, the employee was terminated, arrested, pled guilty to petit larceny (a Class A misdemeanor) and is required to make restitution to the state.

Port Authority of New York and New Jersey (PANYNJ): Selected Aspects of Leasing Practices for Real Estate Services Department and Port Commerce (2017-S-58)
The PANYNJ did not always accurately account for its leases. Discrepancies existed in the lease information contained in two primary systems. Moreover, neither system accounted for all PANYNJ leases. Auditors also found two properties that were vacant for a combined 45 months as of Nov. 29, 2018, resulting in forgone revenue totaling $828,290, and the authority could not document that it attempted to lease the properties examined at the market rate.

State Commission of Correction: Facility Oversight and Timeliness of Response to Complaints and Inmate Grievances (Follow-Up) (2019-F-4)
An audit released in January 2018 found the commission received data such as complaints and unusual incidents regarding various aspects of Department of Corrections and Community Supervision facilities operations, but had not analyzed and tracked the information to identify any trends or patterns that may have warranted monitoring or review. In a follow-up, auditors found the commission made significant progress in addressing the issues identified.

State Education Department (SED): Amerimed Kids LLC: Compliance With the Reimbursable Cost Manual (2018-S-17)
Amerimed Kids is a New York City-based for-profit organization authorized by SED to provide Preschool Special Education Itinerant Teacher services to children with disabilities who are between the ages of three and five years. For the three fiscal years ended June 30, 2015, auditors identified $975,845 in reported costs that did not comply with state requirements in the RCM, including $479,500 in compensation to the executive and assistant executive directors.

State Education Department: Family and Educational Consultants (FEC): Compliance with the Reimbursable Cost Manual (2018-S-29)
FEC is an SED-approved, for-profit special education provider located in Ulster County. FEC provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $161,956 in ineligible costs that FEC reported for reimbursement. The ineligible costs included $96,006 in personal service costs and $65,950 in other than personal service costs.

SUNY Maritime College: Review of Procurement Card (PCard) Transactions and Travel Card Expenses (2017-Credit Card-01)
Auditors found 58 of 59 PCard transactions in a sample were inappropriate, did not comply with state or Maritime PCard guidelines or had insufficient documentation to determine appropriateness. This includes $12,340 in inappropriate transactions. Maritime also approved up to $3,750 in unnecessary luxury lodging accommodations over a six-year period for a professor who taught an annual course on a Carnival Cruise ship.

Department of Transportation (DOT): Welcome Center and Rest Area Planning and Implementation (2017-S-25)
DOT did not follow its own policies and procedures for capital project planning and implementation for welcome centers and rest areas, prioritizing those ahead of other projects. DOT also incurred cost overruns of more than $8.8 million and needlessly spent approximately $4 million due to poor planning for one rest area and four welcome center capital projects.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data.

To prevail in an action challenging an unsatisfactory performance rating the individual must show that the rating was arbitrary and capricious or made in bad faith

In this CPLR Article 78 action the Petitioner challenged the "Unsatisfactory" annual performance rating she had received for the 2013-2014 academic year and [2] the calculation of her pension. Supreme Court dismissed both of these claims advanced by the Petitioner and, in addition, rejected her contention that she had suffered a "discontinuance of employment." The Appellate Division unanimously affirmed the Supreme Court's rulings.

Citing Murname v Department of Education of the City of New York, 82 AD3d 576, the Appellate Division explained that Petitioner failed to show that the U-rating she had been given for the academic year by the New York City Board of Education [Respondent] was arbitrary and capricious or made in bad faith. Rather, said the court, Respondent's determination to uphold the U-rating has a rational basis in the record, which shows repeated instances of pedagogical deficiencies during the 2013-2014 school year, as well as a failure to improve.

With respect to Petitioner's appeal concerning the calculation of her pension , the court's decision indicates  that there were two obstacles to its consideration of her complaint: [1] the Respondent was not the proper party against which to bring her claims and [2] "[t]hese claims could not in any event be entertained, because [Petitioner] failed to exhaust her administrative remedies."

Addressing Petitioner's contention that she had been "discontinued from service", the court found that "there was no discontinuance of employment." Rather, said the Appellate Division, Petitioner had voluntarily resigned from her position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04887.htm

Proceeding with a disciplinary action notwithstanding the appointing authority's receipt of the employee's written resignation from the position

The Petitioner in this Article 78 action sought to have Supreme Court annul a determination of City of New York Civil Service Commission [Commission] affirming the decision of the New York City Administration for Children's Services [ACS] terminating Petitioner's employment for misconduct and incompetence. In addition, Petitioner attempted to have the court to annul the Commission's affirming a ruling by the New York City Department of Citywide Administrative Services [Citywide] disqualifying Petitioner from employment with the New York City Taxi and Limousine Commission based on ACS's findings. Supreme Court dismissed the proceeding, which resolution of the matter the Appellate unanimously affirmed.

The Appellate Division observed that Petitioner had submitted both a "conditional resignation" and "a handwritten resignation letter" while disciplinary charges were pending against him. ACS, however, elected to disregard these resignations and continue to prosecute the charges against Petitioner.  Citing 4 NYCRR 5.3[b], the court found that the appointing authority could, and did, ignore Petitioner's consistent with the provisions of the rule which, in pertinent party, provides "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his* termination shall be recorded as a dismissal rather than as a resignation."

Further, said the court, "Petitioner failed to establish that respondents acted in excess of their jurisdiction, citing Civil Service Law §76[1], [3]. The court explained that Petitioner, a probationary employee, could be dismissed "for almost any reason, or no reason at all," failed to allege facts that would establish that he was dismissed in bad faith or for an improper or impermissible reason.

* §22 of the 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.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04880.htm

The statute of limitations for filing an Article 78 petition challenging an regulation adopted by a government entity starts to run on the effective date of the regulation

General Municipal Law §209-q(1)(a) requires that individuals satisfactorily complete an approved municipal police basic training program prior to appointment as a police officer on a permanent basis. A certificate of completion issued upon completion of an approved training course remains valid, as relevant in this appeal, during the holder's continuous service as a police officer and during certain specified periods of "interruption" from service (see General Municipal Law §209-q[1][b]).* The State's Division of Criminal Justice Services [DCJS] is required by law to maintain a registry of all full-time and part-time police officers in the State and all agencies employing police officers are required to immediately report to DCJS when any officer it has employed ceases to so serve.

Executive Law §837[13] authorizes DCJS to adopt such regulations "as may be necessary or convenient to the performance of its duties." DCJS had adopted regulations requiring an agency employing police officers immediately notify DCJS when a police officer it had employed ceased to serve as a police officer and to indicate the reason for his or her ceasing to serve as a police officer, including reporting his or her "removal for cause".** 

Removal for cause included, as relevant in this action, resignation while a disciplinary proceeding was pending against the police officer pursuant to Civil Service Law §75 or pursuant to another statute or a contract disciplinary procedure negotiated pursuant to the Taylor Law.***

Among the issues addressed by the Appellate Division in this action was the effective date of a regulation adopted by DCJS for the purposes of determining the statute of limitations for timely filing a CPLR Article 78 petition seeking to annul a determination made by DCJS pursuant to the challenged regulation.

In April 2018, two former police officer [Plaintiffs] initiated proceedings and actions for declaratory judgments seeking to annul DCJS's determinations to invalidate their respective police officer basic training certificates. Supreme Court "converted these proceeding/action to a CPLR Article 78 proceeding upon consent of the parties" and then dismissed the Article 78 action as untimely. Plaintiffs appealed.

The Appellate Division noted that although the parties concede that this proceeding was governed by the four-month statute of limitations set forth in CPLR §217(1), they disagree as to when their respective causes of action arose and, in the words of the court, "their claims for relief are ultimately grounded on challenges to the validity of the regulations that were promulgated by DCJS in 2016 and 2017" in consideration of their status as police officers.

Citing Thrun v Cuomo, 112 AD3d 1038, the Appellate Division opined that as the challenged regulations "were quasi-legislative acts ... challenges to the validity of regulations accrued when the regulations become effective." Accordingly, explained the court, "inasmuch as the regulations became effective more than four months before this proceeding was commenced, Supreme Court properly found that [Plaintiffs' claims are time-barred."

Addressing an argument raised by one of the Plaintiffs whereby the Plaintiff asserted that he had submitted "his irrevocable resignation letter" on September 19, 2016 and that it had expressly provided that his resignation would be effective on October 31, 2016, five days after the regulations were adopted, the Appellate Division observed that the resignation was submitted in settlement of disciplinary charges that could have resulted in Plaintiff's removal.

Thus, said the court, Plaintiff's "arguments that he resigned before the regulations were enacted or, alternatively, that no disciplinary charges were pending on the effective date of his resignation are precluded by his acceptance of the benefits of the settlement, namely, being permitted to resolve the pending disciplinary charges by resigning and his further receipt of employment benefits from September 19, 2016 through the effective resignation date of October 31, 2016." 

* Interruption means separation from employment as a police officer "by reason of such officer's leave of absence, resignation or removal, other than removal for cause" (see General Municipal Law §209-q[1][c]).

** See 9 NYCRR 6056.2(g), employees removed for incompetence or misconduct.

*** 4 NYCRR 5.3(b) provides in pertinent part, "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Also, where necessary and appropriate, such disciplinary action may be conducted in absentia [see Mari v Safir, 291 AD2d 298].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04524.htm

An individual receiving a pension benefit from a New York State public retirement system reemployed by New York State or political subdivision of the State must report such her reemployment and his or her earning derived from such reemployment to the retirement system

The individual [Respondent] in this action had served with the City Fire Department in various capacities for some twenty years. In May 2000 Respondent retired from the Department and after obtained a license to practice law in New York State, was reemployed by City Fire Department.

New York's Retirement and Social Security Law provides that retirees within the New York State and Local Police and Fire Retirement System [NYSLPFR]who return to employment with the State of New York or a political subdivision of the State can earn up to $30,000 per year before their retirement benefits are suspended, unless a waiver is obtained. Respondent neither reported his return to public service nor the earnings he received in excess of $30,000 to NYSLPFR. Further, Respondent did not obtain a waiver of the earnings limit. This resulted in Respondent receiving approximately $95,106 in pension benefits to which he was not entitled via wire transfer from Florida to his bank account in New York.

Respondent admitted that he "returned to public service after approximately ten years of being in retirement" but when he took the job, he did not obtain the required waiver. He further stated "[w]ell, the required waiver that would allow me to continue to receive my entire pension, and I did understand that I needed that waiver. And I just, I didn't do it." He then stated that in 2014 he "contacted the retirement system, notified them that I was receiving the benefits and to make those arrangements necessary to suspend my retirement and to start paying back the benefits I had received."

Respondent was convicted of wire fraud in violation of 18 USC §1343, which is essentially similar to the New York felony of grand larceny in the second degree, in violation of Penal Law §155.40, a Class C felony. By virtue of his felony conviction, Respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law §90(4)(a) and, among other penalties imposed, was directed to pay restitution to the NYSLPFR in the amount of $95,106.15, a fine of $50,000, and an assessment fee of $100.

With respect to Respondent's admission to the New York Bar, New York State's Judiciary Law, in pertinent part, provides for automatic disbarment in the event an attorney is convicted of a felony. Under this section, an offense committed in any other State, district or territory of the United States where it is classified as a felony is determined to be a felony when it would constitute a felony in this state. (see Judiciary Law, §90, subdivision 4, paragraph  e.) For purposes of this determination, the Court of Appeals has ruled that a felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have essential similarity.

In response to the Grievance Committee for the Ninth Judicial District's motion to strike Respondent's name from the roll of attorneys and counselor-at-law, the Appellate Division concluded that Respondent's conviction of wire fraud in violation of 18 USC §1343 is essentially similar to the New York felony of grand larceny in the second degree, in violation of Penal Law §155.40, a Class C felony and granted the Committee's motion. The court noted that "[b]y virtue of his felony conviction, [Respondent] was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law §90(4)(a)."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04704.htm

Expulsion from membership of an organization created by the New York State Legislature

Following a member [Petitioner] of a veteran's organization [Organization] created by the New York State Legislature in 1868 expulsion from the Organization.  he commenced a CPLR Article 78 proceeding seeking reinstatement. Supreme Court granted the petition to the extent of annulling Petitioner's expulsion and ordering the Organization to reinstate him as a member. Organization reinstated Petitioner's membership but then file new charges against him, which again resulted in his expulsion from membership in the Organization.

Petitioner, contending that by expelling him a second time, the Organization is in contempt of the Supreme Court's judgment asked the Appellate Division to find the Organization in civil contempt of the Supreme Court's directive.

Citing Garcia v Great Atlantic and Pacific Tea Co., 231 AD2d 401, the Appellate Division rejected Petitioner's claim. The court explained that in order to find a party in civil contempt, it must be determined that:

 [1] a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;

 [2] that the party charged with contempt had notice of the order and disobeyed it; and

[3] the failure to comply with the order prejudiced the rights of a party to the litigation.

Here, however, the Appellate Division determined that although the Supreme Court's judgment mandated Petitioner's reinstatement, it did not address any future charges and nor did it hold that Petitioner could never be discharged from the Organization. In the words of the court, "[t]he sole mandate of the judgment, which was based exclusively on the first charges brought against [Petitioner], was for [the Organization] to reinstate Petitioner. As the Organization admittedly complied with that mandate, there was no violation such that a finding of contempt would be appropriate.

The Appellate Division also noted Petitioner's argument that he is entitled to [1] a determination as to his allegations of fraudulent conduct by other members of the Organization and [2] whether Organization followed proper procedure in expelling him a second time.

However, ruled the Appellate Division, as Petitioner's initial petition did not seek such determinations in his initial petition and only sought a determination involving the first set of charges brought against him by Organization, the Supreme Court's determination concerning that matter was fully disposed of by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04101.htm