February 28, 2022

Deciding motions to stay or compel arbitration

When deciding whether to stay or compel arbitration sought pursuant to Article 75 of the CPLR, the Appellate Division explained that courts are "concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim" and judicial restraint under the public policy exception is particularly appropriate in arbitrations involving public employment collective bargaining agreements.

Click HERE to access the Appellate Division's ruling in this action.

February 26, 2022

Opinion/Outreach Articles by Dr. Robert A. Michaels

Opinion/Outreach Articles by Dr. Robert A. Michaels, by NYPPL's science consultant. Each of the following items are available for free download via:

https://www.researchgate.net/profile/Robert_Michaels3/publications

Michaels, RA. Adopt the precautionary principle against omicron. Science eLetter, online: https://www.researchgate.net/publication/358357923_Michaels_Robert_A_Adopt_the_precautionary_principle_against_omicron_Science_eLetter_online_httpswwwscienceorgdoi101126scienceabo1074_4_February_2022, 4 February 2022;

Michaels, RA.  In-person schooling is not without risks.  Albany, New York; Times Union Newspaper, page A-9, https://www.researchgate.net/publication/358002951_In-person_schooling_is_not_without_risks_Albany_New_York_Times_Union_Newspaper_page_A-9_21_January_2022, 21 January 2022

Michaels, RA. Focus on preventing new Covid-19 cases. Schenectady, New York; Daily Gazette, https://dailygazette.com/2022/01/08/letters-to-the-editor-saturday-jan-8/, 8 January 2022;

Michaels, RA. The future disease burden of pandemic Covid-19 for individuals, communities, and society. Environmental Claims Journal, https://doi.org/10.1080/10406026.2021.2015821, 15 pages, online 16 December 2021;

Michaels, RA. Possible SARS-CoV-2 persistence: FDA and CDC should further expand eligibility for Covid-19 boosters. ResearchGate, https://www.researchgate.net/publication/355175962_Possible_SARS-CoV-2_Persistence_FDA_and_CDC_Should_Further_Expand_Eligibility_for_Covid-19_Boosters, 11 October 2021;

Michaels, RA.  Infrastructure plan invests in the future. Letter, Schenectady, New York; Daily Gazette, https://www.researchgate.net/publication/350609274_Michaels_Robert_A_Infrastructure_plan_invests_in_the_future_Letter_Schenectady_New_York_Daily_Gazette_3_April_2021, 3 April 2021;

Michaels, RA.  Mars rover landing conjures images of 1900s odyssey. Letter, Schenectady, New York; Daily Gazette, https://www.researchgate.net/publication/349570937_Michaels_Robert_A_Mars_rover_landing_conjures_images_of_1900s_odyssey_Letter_Schenectady_New_York_Daily_Gazette_24_February_2021, 24 February 2021;

Michaels, RA. Comment on “Viral evolution may herald new pandemic phase.” Science, e-Letter, online: https://science.sciencemag.org/content/371/6525/108/tab-e-letters, 19 January 2021;

Michaels, RA.  Look at risks of in-person schooling. Letter, Schenectady, New York; Daily Gazette, https://www.researchgate.net/publication/347358002_Look_at_Risks_of_In-person_Schooling_Letter_to_the_Editor_Daily_Gazette_Newspaper_Schenectady_New_York_16_December_2020, 16 December 2020;

Michaels, RA.  Look to science, data to slow Covid-19. Letter, Schenectady, New York; Daily Gazette, https://www.researchgate.net/publication/342715717_Look_to_science_data_to_slow_Covid-19_Letter_to_the_Editor_Daily_Gazette_Newspaper_Schenectady_New_York_Sunday_5_July_2020, Sunday 5 July 2020;

Michaels, RA. Serology testing for antibodies induced by Covid-19 may indicate past exposure without past infection. Science, e-Letter, online: https://science.sciencemag.org/content/368/6495/1060/tab-e-letters, 18 June 2020;

Michaels, RA. Covid-19 risks and risk management in New York State’s Capital Area. ResearchGate, https://www.researchgate.net/publication/339956601_Covid-19_Risks_and_Risk_Management_in_New_York_State's_Capital_Area, online 16 March 2020;

Michaels, RA; Richard A. Hammerman, and Heslley Machado Silva. Comment on “A rights revolution for nature.” Science, e-Letter, online: https://science.sciencemag.org/content/363/6434/1392/tab-e-letters, 2 July 2019;

Michaels, RA. A more fundamental microplastics issue. Science, e-Letter, online: http://science.sciencemag.org/content/360/6384/28/tab-e-letters, 29 May 2018;

Michaels, RA. The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service. Environmental Claims Journal, 30(2), 142-50, doi: 10.1080/10406026.2018.1442077, (https://doi.org/10.1080/10406026.2018.1442077), online 9 March 2018;

Michaels, RA; and Uriel M. Oko.  Negative Hudson River Superfund remediation effectiveness: clamshell dredging massively mobilized sediments, increasing PCB contamination. In: Public Comments Received on Proposed Second Five-Year Report, EPA Index Number 374, pages 493-562 (69 pages including appendices), submitted 30 August 2017, https://www.epa.gov/sites/production/files/2018-01/documents/updated_11-30-17_2017_fyr_comments_-_individuals_reduced_1.pdf, published online 17 January 2018;

Michaels, RA.  Confidence in courts: a delicate balance. Science Magazine, 357(6353):764, Letters, doi: 10.1126/science.aao3967, 25 August 2017;

Michaels, RA; and Uriel M. Oko.  Excessive PCBs in the Hudson River:  attributable to incompleteness of dredging, or to seven years of dredging?  Environmental Claims Journal, 29(2):115-40, 2017; online:  http://dx.doi.org/10.1080/10406026.2017.1307007, 25 April 2017;

Michaels, RA. Gulf oil blowout: a lesson not to be learned by experience. Environmental Practice, 12(4):396-7, December 2010;

Michaels, RA. Creationism, Intelligent Design, and the environmental professional. Environmental Practice, 7(4):210-1, December 2005;

Michaels, RA. The emperor’s new clothes and the US EPA’s decision to dredge Hudson River PCBs. Environmental Practice, 7(3), September 2005;

Michaels, RA. Perspective: The NAEP [National Association of Environmental Professionals] and the 2002 land mine resolution. Environmental Practice, 7(1):6-9, March 2005;

Michaels. RA. Particulate matter: the Marines, EPA, and air quality. Guest Perspective. Arlington, Virginia; Risk Policy Report, 11(10):33-5, 26 October 2004;

Michaels, RA. EPA can no longer ignore risks potentially posed by hours-long PM excursions. Commentary. Risk Policy Report, 8(9):35-9, 18 September 2001;

Michaels, RA. Particulate matter policy. Science Magazine, 278:1,696 (letter); 5 Dec. 1997.

CONTACT INFORMATION

Dr. Robert A. Michaels; PhD, CEP

President, RAM TRAC Corporation Schenectady, New York

(518) 785-0976

www.ramtrac.com

 

February 23, 2022

Annulling the permanent appointment of an individual serving in a position in the classified service

The Appellate Division sustained the appointing authority's determination that the petitioner in this CPLR Article 78 action committed fraud in his employment application by providing answers to questions under penalties of perjury that were not truthful when petitioner represented that he had never resigned from a previous job to avoid disciplinary action or dismissal, explaining that the revocation of the employee's certification for appointment more than three years after the effective date of his permanent appointment to his position was unavailing as that "statute of limitations" does not control in situation involving such a fraud on the part of the appointee.

Click HERE to access the text of the Appellate Division's ruling in this matter.

February 19, 2022

Ammonia and Emergency Exposure Articles

The articles listed below addressing Ammonia and Emergency Exposure by NYPPL's science consultant, Dr. Robert A. Michaels, are available for "download" from the Internet without charge using the URL set out below:

https://www.researchgate.net/profile/Robert_Michaels3/publications

Michaels, RA.  Emergency planning and the acute toxic potency of inhaled ammonia.  Environmental Health Perspectives, 107(8):617-27, August 1999;

Michaels, RA.  Emergency planning: critical evaluation of AEGLs for ammonia.  New York City, American Institute of Chemical Engineers; AIChE Technical Manual: Ammonia Plant Safety, 38:179-84, 1998.

Michaels, RA.  Emergency planning: critical evaluation of proposed AEGLs for ammonia.  Process Safety Progress, 17(2):134-7, 1998;

Michaels, RA.  Emergency planning: critical evaluation of proposed Acute Exposure Guideline Levels (AEGLs) for ammonia.  Proceedings of the 42nd Annual Safety In Ammonia Plants and Related Facilities Symposium, American Institute of Chemical Engineers (AIChE), San Francisco, 8 pages, 22-25 September 1997;

Michaels, RA.  Acute Exposure Guideline Level (AEGL) development for emergency planning:  the ammonia example.  Risk Policy Report, 4(8):34-6, 18 Aug. 1997;

Michaels, RA.  Ammonia under the safety spotlight again.  Nitrogen (London), 228:27-31, July/ August 1997.

Michaels, RA; and Michael T. Kleinman.  Dose-dependent health risks support control of one-hour airborne particle levels.  Proceedings, 90th Annual Meeting of the Air & Waste Management Association; Toronto, Ontario, Canada; 8-13 June 1997, 21 pages 1997;

Michaels, RA.  A technically supportable middle ground in the particulate matter debate.  Commentary. Risk Policy Report, 4(4):35-7, 18 April 1997;

Michaels, RA.  Airborne particle excursions contributing to daily average particle levels may be managed via a one-hour standard, with possible public health benefits.  Aerosol Science and Technology, 25:437-44, November 1996;

Michaels, RA.  Health risks support a one-hour airborne particle standard with data acquisition via rapid automated monitoring instrumentation.  In: Measurement of Toxic and Related Air Pollutants, U. S. EPA and Air and Waste Management Association; Research Triangle Park, North Carolina; 7-9 May 1996; pages 201-7, 1996;

Michaels, RA.  Health risks and particle monitoring: new technologies to meet emerging data needs.  Pittsburgh, Pennsylvania; 14th Annual Meeting, American Association for Aerosol Research, Abstracts, page 338, 9-13 October 1995;

Watson, John G…. RA Michaels…, et al.  Measurement methods to determine compliance with ambient air quality standards for suspended particles, 1995 Critical Review Discussion.  Journal of the Air & Waste Management Association, 45:9, 666-84, doi: 10.1080/10473289.1995.10467395, September 1995.

CONTACT INFORMATION

Dr. Robert A. Michaels; PhD, CEP

President, RAM TRAC Corporation Schenectady, New York

(518) 785-0976

www.ramtrac.com

bam@ramtrac.com

February 18, 2022

Court dismisses petitioner's human rights complaint for failure to show a "triable issue of fact"

The Appellate Division held that a New York State public employer met its prima facie burden of showing that there were no triable issues of fact that would support plaintiff's petition alleging age discrimination within the meaning of the New York City Human Rights Law (Administrative Code of City of NY §8-107[1][a]) or the New York State Human Rights Law (Executive Law §296[1][a]), as there was no indication that the employer's actions concerning plaintiff's continued employment at the employer's facility were motivated by plaintiff's age.

Click HERE to access the Appellate Division's decision.

 

February 16, 2022

Invoking the "law enforcement exemption" in response to a Freedom of Information request

Citing Madeiros v New York State Educ. Dept., 30 NY3d 67, the Appellate Division held that the fact that the custodian of records demanded under color of New York State's Freedom of Information Law chose to task an outside law firm with investigation of employee complaints does not mean that custodian had no reasonable basis for invoking the law enforcement exemption as the exemption "does not apply solely to records compiled for law enforcement purposes in connection with criminal investigations."

Click HERE to access the Appellate Division's decision.

February 14, 2022

Retired police officer's application for a "good guy letter" denied

The New York City Police Department refused to give a retired NYC police officer a certificate of service, also known as a "good guy letter," without which the retiree could not obtain a retired officer handgun license. The Appellate Division rejected the retiree's challenge to the Department's decision explaining that the retiree's action was [1] time barred and [2] the issuance of a retired officer handgun license was a matter of discretion and thus no hearing was required.

Click HERE to access the Appellate Division's ruling.

February 11, 2022

Exercising discretionary authority by the Appellate Division has limits

In an appeal involving an Article 78 proceeding, the Appellate Division ruled that it had "no discretionary authority" to "reach ... an unpreserved issue in the interest of justice". 

Click HERE to access the Appellate Divisions ruling.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

February 9, 2022

Adopt the precautionary principle against omicron

On February 4, 2022 Science published and eletter submitted NYPPL's science advisor, Dr. Robert A. Michaels captioned "Adopt the precautionary principle against omicron."

Click HERE to access Dr. Michaels' letter. 

or click on the URL set out below:

https://www.researchgate.net/publication/358357923_Michaels_Robert_A_Adopt_the_precautionary_principle_against_omicron_Science_eLetter_online_httpswwwscienceorgdoi101126scienceabo1074_4_February_2022,

Trial court's adoption of a decision drafted by a party's counsel rejected on appeal

Supreme Court erred in adopting, almost verbatim, the proposed decision drafted by petitioners' counsel as the final determination in this case and in the event a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. 

Click HERE to access the Appellate Division's decision.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

February 7, 2022

Evaluating a claim for accidental disability retirement benefits

For the purpose of evaluating a claim for accidental disability retirement benefits, falling from a desk chair does not constitute a risk inherent in petitioner's ordinary job duties. 

Click HERE to access the Appellate Division's ruling.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

February 4, 2022

Challenging a provision in an arbitration agreement

The terms of the relevant arbitration agreement were held enforceable as the terms were not "substantively unconscionable when made." Click HERE to access the Appellate Divisions ruling.

 

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

February 2, 2022

Determining if a party has complied with the required steps in a contract grievance procedure

A party's compliance with a contractual step-by-step grievance process has been recognized as a matter of procedural arbitrability to be resolved by the arbitrator, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration. 

Click HERE to access the Appellate Division's decision.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on 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 about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

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