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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  

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:

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'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:

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