June 28, 2019

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
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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  

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:

June 27, 2019

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:

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

June 26, 2019

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:

June 25, 2019

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


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


Pilots’ USERRA class claims alleging airlines’ reemployment policies are unlawful survive

The court refused to dismiss a Uniformed Services Employment and Reemployment Rights Act of 1994 [USERRA] class action, Clarkson v Alaska Airlines, Inc., alleging the airlines’ reemployment policies hurt pilots who take short-term military leave.

A pilot and National Guardsman seeking to pursue class USERRA claims against Alaska Airlines and Horizon Airlines survived the airlines’ motions to dismiss his suit alleging he should have been paid during his short-term military leave, as well as that Horizon’s policies have an adverse impact on service members and strip them of the benefits of seniority.

Ms. Milam indicated that:

[1] Questions remain that will need further factual development beyond the pleadings; and

[2] The plaintiff will need to beef up his pleadings as to one of his statutory claims

Ms. Milam's article is posted on the Internet at:

The Court's decision is posted on the Internet at:

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:


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:

June 24, 2019

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:

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:

June 21, 2019

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:

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.

###

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.

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.

###

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. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

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