June 30, 2022

U.S.Supreme Court limits the authority of the EPA to regulate greenhouse-gas emissions that cause climate change

In its ruling in West Virginia v. Environmental Protection Agency, the United States Supreme Court limited the authority of the EPA to regulate greenhouse-gas emissions that cause climate change. 

Peter Iwanowicz, Executive Director of Environmental Advocates NY, issued the following statement in response to the Court's decision.

“Six Justices on the Supreme Court just decided that the federal government must unilaterally disarm in its fight against climate change—capping off a series of rulings that will significantly harm Americans now and into the future. Make no mistake, today’s decision is a gift to polluters that will make people sick, some of whom will die prematurely. Fortunately, the ruling does nothing to affect our state’s climate law or efforts. New York must respond to this ruling swiftly and with bold climate leadership.”


June 27, 2022

Audits and reports issued by the New York State Comptroller during the week ending June 23, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending June 23, 2022:

Click on the text highlighted in color to access the complete audit report.

School District Audits

Brookhaven-Comsewogue Union Free School District – Extra-Classroom Activity (ECA) Funds (2021M-181)  

Unapproved ECA clubs were operating in the district and officials did not establish an adequate accounting system for the district’s funds. As a result, district officials cannot ensure that collections are properly collected, submitted, and deposited, and disbursements are for valid purposes. As a result, 72 of 90 transactions tested totaling $321,554 were not properly accounted for. Officials did not ensure collections and disbursements were always supported or that nine of the 38 deposits tested totaling $12,635 were deposited timely.


East Moriches Union Free School District – Financial Condition Management (2022M-1)  

District officials overestimated appropriations, which made it appear that the district needed to increase taxes and use appropriated fund balance to close projected budget gaps, but the appropriated fund balance was not used to finance operations. The surplus fund balance has continuously grown over the past five fiscal years. As of June 30, 2021, it was over $7.1 million, or 24.3% of the next year’s budget, exceeding the 4% statutory limit. The district’s budgeted appropriations from 2016-17 through 2020-21 exceeded actual expenditures by $6.3 million, or 4.5%. Officials did not use the retirement contribution reserve to pay annual retirement contributions. Its excessive balance is enough to cover annual retirement contributions for nine years.

 

Franklin Central School District – Information Technology (2022M-19)  

District officials did not adequately manage network user accounts, periodically compare installed software to an authorized software inventory or develop an IT contingency plan. Nine of the district’s network user accounts (8%) were not needed. This created additional network entry points that, if accessed by attackers, could be used to inappropriately access, and view sensitive information and compromise IT resources. District staff did not have sufficient documented guidance or plans to follow to recover data and resume essential operations in a timely manner.


Port Chester-Rye Union Free School District – Information Technology User Accounts (2021M-209)  

District officials did not adequately manage non-student network user accounts to ensure unnecessary accounts were disabled. Specifically, district officials did not establish comprehensive written procedures to periodically review all network user accounts, identify unnecessary network user accounts, and notify the IT vendor to disable them. Nine former employees’ user accounts and 120 unneeded generic user accounts were not disabled on the network.

 

Valhalla Union Free School District – Network User Accounts (2022M-26)  

District officials did not adequately manage the district’s network user accounts to help prevent unauthorized use, access and/or loss. Auditors found district officials should have disabled 67 unneeded network user accounts. These unnecessary accounts had last log-on dates ranging from Jan. 3, 2012, to Sept. 3, 2021, and account for 15% of the district’s network user accounts.

 

 Municipal Audits

Town of Charlton – Procurement (2022M-5)  

Town officials did not always seek competition when procuring goods and services. Town officials made 17 purchases totaling $67,808 without seeking competition and spent $4,820 on snowplow blades and shoes but could have saved town taxpayers $2,244, if purchased off the state contract. The town also did not always retain copies of other government contracts used to procure goods and services.

 

Village of Hagaman – Claims Auditing (2022M-11)  

Claims were not properly audited and approved before payment. The board did not date their signatures on claims upon review and approval or ensure claims had department head approval.

 

Village of Hewlett Bay Park – Financial Management (2022M-30)  

The board did not adopt realistic budgets, or monitor and effectively manage fund balance. As a result, more taxes were levied than needed to fund operations. For example, about $6,000 was needed to balance the budget in 2020-21; however, the property tax levy was $209,000. For the four fiscal years reviewed, the board maintained an excessive level of unassigned surplus fund balance in the general fund and balances ranged between $273,348 and $348,648 or between 45% and 61% of the ensuing year’s budget. The village also underestimated revenues by a total of $420,341 and overestimated expenditures by a total of $608,117 and budgeted for a large operating deficit each year, ranging between $260,003 and $293,105. However, the actual deficits for that period ranged between $5,547 and $42,216. This practice contributed to the continued accumulation of surplus fund balance.

 

Schoharie County Court and Trust (2022-C&T-3)  

Auditors found the treasurer established adequate procedures, maintained appropriate records, and properly reported court and trust funds as prescribed by statute. Records maintained by the county clerk and Surrogate’s Court were also up to date and complete with no material discrepancies.

June 25, 2022

Selected decisions and reports posted on the Internet during the week ending June 24, 2022

 

The United States Supreme Court holds that law-abiding citizens have Second Amendment rights to keep and bear arms in public for self-defense

NOTE: The syllabus of the Court's ruling set out below constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. [See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.]

SUPREME COURT OF THE UNITED STATES

Syllabus

NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL.

v.

BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 20–843. Argued November 3, 2021—Decided June 23, 2022


The State of
New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. N. Y. Penal Law Ann. 400.00(2)(f ).
An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257.

Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense.

The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement. Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and injunctive relief, alleging that respondents violated their Second and
Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior decision in Kachalsky v.
County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.” Id., at 96.

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Pp. 8–63.

(a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Pp. 8–22.

(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context.

Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.

(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of  “intermediate scrutiny” often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable — and, elsewhere, appropriate — it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people,” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. Pp. 15–17.

(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller
at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554
U. S., at 582.

To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).

To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.

(b) Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York’s proper-cause requirement. Pp. 23–62.

(1) It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom thevSecond Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of  “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24.

(2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or post-dates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62.

(i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller’s statement that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. Pp. 30–37.

(ii) Respondents next direct the Court to the history of the Colonies and early Republic, but they identify only three restrictions on public carry from that time. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue. The statutes essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.” See 554 U. S., at 627.

Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are today “the quintessential self-defense weapon.” Id., at 629. Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. Pp. 37–42.

(iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes.

None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.

Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.

Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. But the antebellum state-court decisions upholding them evince a consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues.

Surety Statutes. In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee.

In sum, the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. Pp. 42–51.

(iv) Evidence from around the adoption of the Fourteenth Amendment also does not support respondents’ position. The “discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves,” Heller, 554 U. S., at 614, generally demonstrates that during Reconstruction the right to keep and bear arms had limits that were consistent with a right of the public to peaceably carry handguns for self-defense.

The Court acknowledges two Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex. 455—that approved a statutory “reasonable grounds” standard for public carry analogous to New York’s proper-cause requirement. But these decisions were outliers and therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. See Heller, 554 U. S., at 632. Pp. 52–58.

(v) Finally, respondents point to the slight uptick in gun regulation during the late-19th century. As the Court suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. See Heller, 554 U. S., at 614. Moreover, these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform “the origins and continuing significance of the Amendment.” Ibid.; see also The Federalist No. 37, p. 229. Finally, these territorial restrictions deserve little weight because they were, consistent with the transitory nature of territorial government, short lived. Some were held unconstitutional shortly after passage, and others did not survive a Territory’s admission to the Union as a State. Pp. 58–62.

(vi) After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428 N. Y. S. 2d, at 257. P. 62.

(c) The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public. Pp. 62–63.

818 Fed. Appx. 99, reversed and remanded.

THOMAS , J., delivered the opinion of the Court, in which ROBERTS , C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined.

ALITO, J., filed a concurring opinion. 

KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined.

BARRETT, J., filed a concurring opinion.

BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

The fact that the proceeding has been rendered moot by the disclosure of the FOIL documents demanded does not preclude an award of fees


Matter of Lewis v James

2022 NY Slip Op 04066

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided and Entered:June 23, 2022


532161

[*1]In the Matter of Julio Lewis, Appellant,

v

Letitia James, as Attorney General of the State of
New York, Respondent.



Calendar Date:May 23, 2022
Before:Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

Julio Lewis, Coxsackie, appellant pro se.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

 

Pritzker, J.

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered June 22, 2020 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging the constructive denial of his request under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) for various wiretap applications, warrants and other documents pertaining to his criminal indictment, and sought reimbursement of fees associated with his FOIL request. Prior to answering, respondent moved to dismiss the petition on the ground that respondent was not the proper party to the proceeding. Supreme Court granted the motion and dismissed the petition. Petitioner appealed. Respondent then moved this Court to dismiss, as moot, that part of the appeal challenging the denial of petitioner's FOIL request, as respondent had discovered that it was in possession of, and thereafter provided to petitioner, 465 pages of responsive documents. In addition, respondent moved to remit the matter to Supreme Court to allow petitioner to submit an application for an award of fees pursuant to Public Officers Law § 89 (4) (c) (i). This Court denied the motion without prejudice to respondent raising the issues on appeal.

We agree with respondent that the proceeding, insofar as it challenges the constructive denial of petitioner's FOIL request, is moot (see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 AD3d 808, 809 [2021], lv denied 38 NY3d 905 [2022]; Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, 1210 [2021], lv denied 37 NY3d 917 [2022]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1073-1074 [2020]). Respondent complied with petitioner's FOIL request by providing him with 465 pages of responsive documents, albeit noting that some documents were exempt from disclosure or portions redacted. To the extent that petitioner requests an in camera inspection of all documents in respondent's possession in order to ensure that everything requested was properly disclosed, "such review [is] precluded by [petitioner's] failure to[, in this instance,] . . . commence a new CPLR article 78 proceeding after exhausting [his] administrative remedies" (Matter of New York State Funeral Directors Assn. v New York State Dept. of Health, 200 AD3d 1255, 1257 [2021]; see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 AD3d at 809).

The fact that the proceeding has been rendered moot by the disclosure of the documents does not, as conceded by respondent, preclude petitioner's request for an award of fees (see Matter of Vertucci v New York State Dept. of Transp., 195 AD3d at 1210; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074). The Public Officers Law permits an award of "reasonable [counsel] fees and other litigation [*2]costs" where the petitioner "has substantially prevailed" in a FOIL proceeding and "when the agency failed to respond to a request . . . within the statutory time frame" (Public Officers Law § 89 [4] [c] [i]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78 [2017]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074). Under the circumstances, as petitioner included in his petition a request for fees associated with the FOIL application, the matter must be remitted to Supreme Court for a determination of an award of costs and fees pursuant to Public Officers Law § 89 (4) (c) (i).

Egan Jr., J.P., Lynch, Ceresia and Fisher, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed petitioner's request for fees; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Workers' Compensation Board's factual determination that claimant suffered from an occupational disease resulting from repetitive stress when supported by substantial evidence will not be disturbed


Matter of Brancato v New York City Tr. Auth.

2022 NY Slip Op 04073

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided and Entered:June 23, 2022


533429

[*1]In the Matter of the Claim of Anthony Brancato, Claimant,

v

New York City Transit Authority, Appellant. Workers' Compensation Board, Respondent.



Calendar Date:May 26, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for appellant.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

 

Ceresia, J.

Appeal from a decision of the Workers' Compensation Board, filed October 28, 2020, which ruled that claimant sustained a causally-related occupational disease and granted the claim for workers' compensation benefits.

Claimant worked for the employer for approximately 25 years — 7 years as a bus mechanic and 18 years in various supervisory roles, retiring in August 2019 as a general superintendent of maintenance. His work duties as a bus mechanic included using hand tools and impact guns, replacing tires and operating a heavy-duty tow truck to transport buses and large trucks, averaging 60 to 70 hours per week. As a supervisor, claimant assisted and instructed mechanics performing maintenance, and spent about 40% of his time at a desk using a computer to complete forms and reports. On December 9, 2019, claimant sought medical treatment for severe pain in his wrists, hands and thumbs, reporting that the onset of the intermittent symptoms had occurred in 1999 and they became severe and frequent by 2017. Claimant thereafter filed a claim for workers' compensation benefits, claiming that his condition was causally related to the repetitive stress of his job duties. Following hearings, a Workers' Compensation Law Judge determined that, as a result of repetitive stress, claimant sustained an occupational disease to both hands and both thumbs and set a date of disablement of December 9, 2019. On the employer's appeal, the Workers' Compensation Board affirmed, and the employer appeals.

We affirm. An occupational disease is "a disease resulting from the nature of [the] employment and contracted therein" (Workers' Compensation Law § 2 [15]), and "does not derive from a specific condition peculiar to an employee's place of work, nor from an environmental condition specific to the place of work" (Matter of Patalan v PAL Envtl., 202 AD3d 1252, 1252-1253 [2022] [internal quotation marks and citations omitted]; see Matter of Mack v County of Rockland, 71 NY2d 1008, 1009 [1988]; Matter of Bodisch v New York State Police, 195 AD3d 1274, 1275 [2021]). "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment[, and] the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Urdiales v Durite Concepts Inc/Durite USA, 199 AD3d 1214, 1214 [2021] [internal quotation marks and citations omitted], lv denied 38 NY3d 907 [2022]; accord Matter of Patalan v PAL Envtl., 202 AD3d at 1253; see Matter of Bigdoski v Bausch & Lomb, 197 AD3d 1379, 1380 [2021]; Matter of Gandurski v Abatech Indus., Inc., 194 AD3d 1329, 1330 [2021]). "[W]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and [*2]not be based upon a general expression of possibility" (Matter of Molina v Delta Airlines Inc., 201 AD3d 1193, 1194 [2022] [internal quotation marks and citations omitted]).

The unrefuted medical testimony provided by claimant's treating physician, Gideon Hedrych, established that claimant's hand and thumb injuries were causally related to the distinctive nature of his employment activities.[FN1] Hedrych recounted claimant's specific job duties over his career for the employer, consistent with claimant's testimony, and summarized his medical findings regarding claimant's limited range of motion, altered sensation, weakness and atrophy, among others. Hedrych diagnosed claimant with repetitive stress injuries including hand and joint derangement with traumatic tendonitis, arthritis and nerve neuropathy. He opined that claimant's diagnoses were causally related to the nature of his job duties, including the use of both hands to operate power tools as a mechanic, and the period in which he experienced the onset of symptoms, providing a rational basis for his conclusions (see Matter of Molina v Delta Airlines Inc., 201 AD3d at 1195). Hedrych further concluded that claimant's subsequent supervisory work, while primarily sedentary, involved typing and writing, which further stressed his hands, wrists and thumbs, and "accelerated his injuries in his wrists and thumbs." In light of the foregoing, and given that no contrary medical opinions were presented, the Board's factual determination that claimant suffered from an occupational disease resulting from repetitive stress is supported by substantial evidence and will not be disturbed (see Matter of Garcia v MCI Interiors, Inc., 158 AD3d 907, 908 [2018]; Matter of Curtis v Xerox, 66 AD3d 1106, 1108 [2009]).

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: The employer failed to obtain an independent medical examination of claimant and was found to have waived its right to do so.

Workers' Compensation Board's factual conclusion that claimant made willful misrepresentations to obtain benefits sustained


Matter of Mikheil (Commissioner of Labor)

2022 NY Slip Op 04075

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided and Entered:June 23, 2022


533667

[*1]In the Matter of the Claim of Emad Mikheil, Appellant. Commissioner of Labor, Respondent.



Calendar Date:June 1, 2022
Before:Clark, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

Law Office of Thomas V. Purpi, PC, New York City (Thomas V. Purpi of counsel), for appellant.

Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 11, 2021, which ruled, among other things, that claimant was ineligible to receive pandemic unemployment assistance.

Claimant, who lived in New York City, traveled to Egypt on February 18, 2020 to attend to a family matter, intending to return at the end of March 2020. It is undisputed that the government of Egypt imposed a travel ban on March 16, 2020 due to the COVID-19 pandemic, and closed the country's airports until July 1, 2020; only two flights left the country during the ban, in early April 2020, and claimant was unable to return to the United States until around July 3, 2020. On March 26, 2020, claimant attempted to use his cellphone from Egypt to file a claim for unemployment insurance benefits, but that effort was blocked because of his location; he then applied for benefits by remotely accessing his home computer in the United States, claiming that he was unemployed due to lack of work. The next day, the Department of Labor sent claimant an Out of Country Questionnaire because he was certifying for benefits from Egypt; he completed and returned the forms, disclosing his reasons for being in Egypt and his inability to return home due to the airport closure. His claim for benefits was denied initially on the ground that he was in Egypt and not ready, willing and able to work or to comply with reporting requirements. As he was ineligible for state benefits, the Department sent him an application for pandemic unemployment insurance benefits under the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act), enacted on March 27, 2020, which created a new, temporary joint state-federal program called pandemic unemployment assistance (hereinafter PUA) to provide relief to certain workers affected by the COVID-19 pandemic (see 15 USC § 9021, as added by Pub L 116-136, 134 Stat 313). Claimant completed and submitted the PUA application. Claimant thereafter certified for benefits by telephone for the week ending June 14, 2020, attesting that he was ready, willing and able to begin working immediately. Claimant received $600 in federal pandemic unemployment compensation (hereinafter FPUC) (see 15 USC § 9023) and $504 in PUA benefits (see 15 USC § 9021).

By initial determinations, the Department held that claimant was ineligible for state unemployment insurance benefits effective March 16, 2020 through June 28, 2020, because he was not available for employment and could not and did not properly certify for benefits from Egypt [FN1] (see Labor Law §§ 591 [2]; 596 [4]). Claimant's right to receive future benefits was reduced by eight days and a monetary penalty of $100 was imposed because he made willful misrepresentations to obtain benefits (see Labor Law § 594), and he was charged with recoverable overpayments of $504 in PUA benefits and $600 in FPUC benefits (see 15 USC §§ 9021 [h]; 9023 [f] [2]; 20 CFR 625.14 [a]). Following a hearing, an [*2]Administrative Law Judge sustained the determinations and, on appeal, the Unemployment Insurance Appeal Board affirmed. Claimant appeals.

We affirm. To receive state unemployment insurance benefits, claimants must be "ready, willing and able to work" in their field (Labor Law § 591 [2]), which presents a question of fact for the Board to resolve (see Matter of Ormanian [Montauk Bus Serv., Inc.—Commissioner of Labor], 167 AD3d 1183, 1184 [2018], lv dismissed 32 NY3d 1221 [2019]). Claimant traveled to Egypt for personal reasons unrelated to employment, where he remained until the airports reopened in July 2020. The unemployment insurance handbook made available to claimant online when he applied for benefits advised that he was responsible to read it, and apprised him that he is not considered to be available for employment unless he can accept work immediately; the handbook directed claimants not to certify for benefits from outside of the United States, its territories or Canada because they may not claim benefits for any period of time that they are outside of those geographic parameters, and that doing so is fraud. Claimant is charged with constructive knowledge of the handbook notices regarding the availability requirement when certifying for benefits from abroad. Although claimant testified that he was prepared to take a job immediately but for the airport closure, this at most presented a factual question that the Board resolved against him and, moreover, substantial evidence supports the Board's determination that, while in Egypt, he was not available for immediate employment in the United States (see Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]; Matter of Kossarska-Goetz [Commissioner of Labor], 111 AD3d 1240, 1240-1241 [2013]).

Claimant contends that he was nonetheless entitled to PUA benefits and, therefore, the Board improperly ordered him to repay those benefits. As relevant here, PUA benefits are available to "covered individual[s]," defined as those who are not eligible for any other unemployment benefits, who certify to two prerequisites: that they are "otherwise able to work and available for work within the meaning of applicable State law" but are "unemployed . . . or unable . . . to work" because of one or more statutorily enumerated factors (15 USC § 9021 [a] [3] [A] [ii] [I] [emphasis added]; [b]; see Matter of Mangiero [Commissioner of Labor], 197 AD3d 1458, 1459 [2021], lv denied 38 NY3d 901 [2022]). Although claimant was ineligible for any other benefits, the Board correctly concluded that he was not available for work within the meaning of State law, i.e. Labor Law § 591 (2), as he was outside of the country and, thus, he did not satisfy the first prerequisite for entitlement to PUA benefits (see 15 USC § 9021 [a] [3] [A] [ii] [I]). Claimant's further argument that he qualified for PUA as he satisfied the second prerequisite, in that he was "unable to reach the place of employment because [*3]of a quarantine imposed as a direct result of the COVID-19" pandemic, is unavailing (15 USC § 9021 [a] [3] [A] [ii] [I] [ee]), as there was no proof that he was exposed to COVID-19 and in quarantine in Egypt. Contrary to claimant's argument, the Board rationally interpreted the governing statutory criteria for PUA benefits and its decision that he was not entitled to such benefits is supported by substantial evidence. To that end, the Board's interpretation is consistent with the guidance provided by the US Department of Labor, the federal agency tasked with providing operating instructions for the joint state-federal pandemic unemployment insurance program (see 15 USC § 9032 [b]), of which we take judicial notice (see United States Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, at I-3, I-5, I-9 [https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf]). Because claimant was not entitled to PUA or FPUC, the Board properly assessed overpayments of benefits paid (see 15 USC §§ 9021 [h]; 9023 [b] [1]; [f] [2]; 20 CFR 625.11, 625.14 [a]; Matter of Frederick [Commissioner of Labor], 197 AD3d 1456, 1457-1458 [2021]). Moreover, under these circumstances, we find no reason to disturb the Board's factual conclusion that claimant made willful misrepresentations to obtain benefits, or the resulting imposition of recoverable overpayments, forfeiture and penalties (see Labor Law §§ 594, 597 [4]; Matter of Falso [Commissioner of Labor], 201 AD3d 1285, 1285-1286 [2022], lv denied ___ NY3d ___ [June 16, 2022]; Matter of Corso [Commissioner of Labor], 144 AD3d 1367, 1368 [2016]). We have examined claimant's remaining contentions and find that none has merit.

Clark, J.P., Pritzker, Ceresia and Fisher, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes


Footnote 1: The parties agree that Egypt is not a signatory to any Interstate Benefits Payment Plan, which provides a method for persons entitled to unemployment compensation in one state who are absent from that state to receive benefits from another signatory state or territory where they reside, which acts as an agent for the payment of benefits (see 26 USC § 3304 [a] [9] [A]; https://oui.doleta.gov/unemploy/pdf/istate_agree_bene_ payment.pdf). As such, substantial evidence supports the Board's conclusion that claimant did not and could not comply with the reporting requirements from
Egypt
(see Labor Law § 596; 12 NYCRR 473.1, 473.2, 473.3; Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]).


Absent medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities constitutes substantial evidence that claimant did not establish a causally-related occupational disease

 

Matter of Sanchez v New York City Tr. Auth.

2022 NY Slip Op 04078

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided and Entered:June 23, 2022


534023

[*1]In the Matter of the Claim of Brenda Sanchez, Appellant,

v

New York City Transit Authority, Respondent. Workers' Compensation Board, Respondent.



Calendar Date:May 26, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Schotter Millican, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Jones Jones LLC, New York City (David Secemski of counsel), for New York City Transit Authority, respondent.

 

Ceresia, J.

Appeal from a decision of the Workers' Compensation Board, filed February 18, 2021, which ruled, among other things, that claimant did not sustain a causally-related occupational disease and denied her claim for workers' compensation benefits.

In June 2016, claimant, a station agent for over 29 years, applied for workers' compensation benefits, citing repetitive stress injuries to her neck, back, left shoulder, left hip and left hand incurred as a result of her employment. The employer and its workers' compensation carrier controverted the claim. Following hearings at which deposition testimony of the parties' medical providers was submitted and claimant testified, the Workers' Compensation Law Judge disallowed the claim, finding that it was time-barred, which decision the Workers' Compensation Board, among other things, affirmed. Claimant sought judicial review, resulting in this Court reversing the Board's decision and remitting the matter for further proceedings (187 AD3d 1273 [2020]).

Upon remittal, the full Board adopted this Court's decision and referred the matter for further proceedings to the same Board panel that previously reviewed the claim. In a February 18, 2021 decision, the Board, discrediting the opinion of claimant's treating physician, found that claimant's alleged injuries were not causally related to her employment, that she did not sustain an occupational disease and disallowed the claim. Claimant appeals.

We affirm. "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence" (Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d 1236, 1237 [2019] [internal quotation marks and citations omitted]; see Matter of Barker v New York City Police Dept., 176 AD3d 1271, 1272 [2019], lv denied 35 NY3d 902 [2020]). "To this end, a medical opinion on the issue of causation must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [2008] [internal quotation marks and citations omitted]; see Matter of Lichten v New York City Tr. Auth., 132 AD3d 1219, 1219-1220 [2015]). "Importantly, the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Patalan v PAL Envtl., 202 AD3d 1252, 1253 [2022] [internal quotation marks and citations omitted]; see Matter of Molina v Delta Airlines Inc., 201 AD3d 1193, 1194 [2022]).

A review of the record supports the Board's determination that claimant did not establish a sufficient causally-related link between claimant's injuries and a distinctive feature of her employment (see Matter of Patalan v PAL Envtl., 202 AD3d [*2]at 1253). Stephen Roberts, claimant's treating physician, diagnosed claimant with injuries to her neck, back, left shoulder, left hip and left hand, which he opined were caused by "repetitive activity over a period of time working as a station agent [and d]oing the various tasks that required lifting bags of coins." Roberts testified that, "It seemed a lot of her injury was due to lifting heavy objects[,] and bags of coins [were] a big problem. Heavy bags of coins." In that regard, claimant testified that her job duties initially involved unloading tokens from the station turnstiles, carrying the 25- to 30-pound bags of tokens to the station booth and pouring the tokens into the counting machine. However, claimant acknowledged that tokens were not utilized after 2003, but stated that she is still required to lift very heavy bags of quarters in the station booth.

Neither claimant's testimony nor the medical records contain any information as to the frequency or repetitiveness with which claimant lifted any heavy bags within the station booth. Moreover, Roberts' opinion did not indicate a correlation or mechanism by which the bag-lifting activity caused any, let alone all, of the injuries diagnosed. In the absence of such information, the Board rejected Roberts' medical opinion as not credible, which it was entitled to do (see Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1237; Matter of Yanas v Bimbo Bakeries, 134 AD3d 1321, 1321 [2015]). Further, the medical evidence submitted by the employer indicated that claimant's injuries were not a result of repetitive work activity. Consequently, as there was no medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities, substantial evidence supports the Board's determination that claimant did not establish that she sustained a causally-related occupational disease (see Matter of Patalan v PAL Envtl., 202 AD3d at 1253; Matter of Barker v New York City Police Dept., 176 AD3d at 1272-1273; Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1238). We have reviewed claimant's remaining contentions and find them to be unpersuasive.

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the decision is affirmed, without costs.

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