Eligibility for health insurance benefits provided by the New York State Employees' Health Insurance Program [NYSHIP] upon retirement where there is a lapse in NYSHIP coverage prior to retirement

In 1976 the City of Mount Vernon adopted the following resolution:

"RESOLVED, that the City of Mount Vernon hereby elects to contribute one hundred per cent (100%) of the cost of individual and dependent health insurance coverage as the city's rate of contribution in the New York State Government Employees' Health Insurance Program [NYSHIP] for those employees not members of a negotiating unit who shall retire on and after January 1, 1977."

In 1979, the then-Mayor of the City of Mount Vernon allegedly told the Plaintiff in this action that if she voluntarily left her position at that time she would be eligible to receive full retirement medical benefits when she reached the age of 55, even though she would not continue working for the City.* Plaintiff agreed to the Mayor's proposal and resigned from her position with the City in December 1980. Thereafter Plaintiff did not receive health insurance benefits pursuant to NYSHIP.

Plaintiff was unsuccessful in her subsequently efforts to obtain NYSHIP health insurance coverage upon her retirement at age of 55 as represented by the City's former mayor. Ultimately Supreme Court's dismissed Plaintiff's lawsuits seeking to recover damages from the City for "breach of contract, fraudulent inducement, and fraudulent misrepresentation". Plaintiff appealed the Supreme Court's decision.

The Appellate Division affirmed Supreme Court's ruling, holding that "To the extent that the [Plaintiff] otherwise submitted evidence tending to substantiate her allegation that City officials made verbal and written representations that she would be eligible for retirement health benefits despite her undisputed lapse in coverage, such evidence was insufficient to raise a triable issue of fact, since at best it showed that the City's officials made promises that the City lacked the authority to fulfill."

* See 4 NYCRR 73.2, in general, and 4 NYCRR 73.29(a)(3), in particular, with respect to "Eligibility" for participation in NYSHIP and 4 NYCRR 73.2(e), "Disqualification", with respect to such participation.

The Appellate Division's decision is set out below.

 

Johnson v City of Mount Vernon

2023 NY Slip Op 01502

Decided on March 22, 2023

Appellate Division, Second 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 on March 22, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
LILLIAN WAN, JJ.

2019-13093
(Index No. 51304/15)

Amelia Politi Johnson, appellant,

v

City of Mount Vernon, respondent.

Nancy A. Luongo, Harrison, NY, for appellant.

Coughlin & Gerhart, LLP, Binghamton, NY (Paul J. Sweeney, Steven L. Foss, and Devin M. Dilts of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an amended order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated October 11, 2019. The amended order, insofar as appealed from, granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for breach of contract, fraudulent inducement, and fraudulent misrepresentation.

ORDERED that the amended order is affirmed insofar as appealed from, with costs.

In June 1969, the plaintiff began working as a nonunion employee for the defendant, City of Mount Vernon. After approximately 10 years, the then-Mayor of the City allegedly told the plaintiff that if she voluntarily left her position at that time she would be eligible to receive full retirement medical benefits when she reached the age of 55, even though she would not continue working for the City. City officials allegedly represented to the plaintiff that she would be eligible for such benefits pursuant to a resolution the City had adopted on November 24, 1976 (hereinafter the 1976 resolution). The 1976 resolution provided: "RESOLVED, that the City of Mount Vernon hereby elects to contribute one hundred per cent (100%) of the cost of individual and dependent health insurance coverage as the city's rate of contribution in the New York State Government Employees' Health Insurance Program for those employees not members of a negotiating unit who shall retire on and after January 1, 1977." The plaintiff agreed to the Mayor's proposal and resigned from her position with the City in December 1980. The plaintiff did not receive medical benefits under the New York State Health Insurance Program (hereinafter NYSHIP) directly or as a dependent at any time after ending her employment with the City.

Upon reaching the age of 55, the plaintiff filed an application for retirement benefits on or about August 15, 2005. However, by letter dated December 11, 2014, the City informed the plaintiff that it had determined that she was not eligible to enroll in NYSHIP as a retiree.

The plaintiff commenced this action against the City and amended the complaint to assert causes of action, among other things, to recover damages for breach of contract, fraudulent inducement, and fraudulent misrepresentation, alleging in essence that the City breached its promise to provide her with postretirement health insurance coverage. The City moved, inter alia, for summary judgment dismissing the breach of contract, fraudulent inducement, and fraudulent misrepresentation causes of action. In an amended order dated October 11, 2019, the Supreme Court, among other things, granted those branches of the motion. The plaintiff appeals.

The Supreme Court properly granted those branches of the City's motion which were for summary judgment dismissing the breach of contract causes of action. The breach of contract causes of action are premised upon the plaintiff's assertion that the 1976 resolution entitled her to retirement health benefits, based on the text of the 1976 resolution and the representations of City officials as to the effect of the 1976 resolution. Resolving the issue of whether the plaintiff is entitled to retirement health benefits "requires examination of the relevant . . . plan documents" (Matter of Parrino v Albertson Water Dist., 118 AD3d 802, 802; see Matter of Consolidated Mut. Ins. Co., 77 NY2d 144, 147). The plain language of those documents, as well as the applicable statutes and regulations, provide for postemployment health insurance benefits only for vested employees who, upon termination of their employment with a participating agency, continue coverage under NYSHIP as an enrollee or a dependent of an enrollee while in vested status with no lapse in NYSHIP coverage (see Retirement and Social Security Law § 2[18]; Civil Service Law § 163[3]; 4 NYCRR 73.1[e]; 73.2[a][3][iv]). The City established, prima facie, that the plaintiff experienced a lapse in coverage and was therefore not eligible for retirement health benefits.

In opposition, the plaintiff failed to raise a triable issue of fact. The plain language of the 1976 resolution does not affect the plaintiff's eligibility for retirement health benefits in the event of a lapse in coverage. To the extent that the plaintiff otherwise submitted evidence tending to substantiate her allegation that City officials made verbal and written representations that she would be eligible for retirement health benefits despite her undisputed lapse in coverage, such evidence was insufficient to raise a triable issue of fact, since at best it showed that the City's officials made promises that the City lacked the authority to fulfill (see Matter of Parrino v Albertson Water Dist., 118 AD3d at 803; Mans Constr. Oversite, Ltd. v City of Peekskill, 114 AD3d 911, 911; International Merchants v Village of Old Field, 203 AD2d 247, 248). Moreover, contrary to the plaintiff's further contention, the doctrine of estoppel is inapplicable (see Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282; International Merchants v Village of Old Field, 203 AD2d at 248).

The Supreme Court also properly granted that branch of the City's motion which was for summary judgment dismissing the causes of action alleging fraudulent misrepresentation and fraudulent inducement. The City established, prima facie, that the alleged untrue representations underlying those causes of action are the same as those underlying the breach of contract causes of action (see Stangel v Zhi Dan Chen, 74 AD3d 1050, 1052). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are either not properly before this Court or without merit.

BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

An autopsy of an arbitration award

As a rule, where the parties agreed to resolve disputes by submitting the issue to arbitration, courts typically have a "limited role" resolving the dispute. In the instant appeal, however, the Appellate Division observed that "Even with a limited role '[a] court may vacate an [arbitration] award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

Two members of a County Sheriff's Department separately applied for personal leave, but their requests were denied due to operational needs. The Union filed a joint grievance on their behalf, and the matter proceeded to arbitration. The arbitrator found that the County had violated the applicable terms of the relevant collective bargaining agreement [CBA] and the County commenced a combined CPLR Article 75 proceeding and declaratory action seeking to vacate the arbitrator's award. Supreme Court vacated the arbitration award and the Union appealed.

Here the relevant collective bargaining agreement [CBA] provided that although an arbitrator's award was final, any party could seek judicial redress if "the arbitrator has varied the terms or illegally interpreted the terms of the bargaining agreement between the parties." §5.08 of the relevant CBA provided that "[t]he granting of a personal business day shall be at the discretion of the Sheriff ..., with the work of the [d]epartment taking priority."

In ruling against the County, the arbitrator found that the County's discretion was "not unlimited and must be exercised in a reasonable fashion" and concluded that §5.08 should be interpreted as "presum[ing] that a timely request for a personal leave day will be granted absent a showing that pressing and current [d]epartment needs exist that may take precedence over any such leave request" (emphasis in the decision). Further, the arbitrator found that "it is the County's burden to demonstrate that such a need exists and but for the denial of a personal leave day request, the [d]epartmental needs could not be met."

The Appellate Division opined that by construing §5.08 as presuming that leave "will be granted" unless a departmental need was shown, the arbitrator did not rationally interpret the CBA's provisions. While the arbitrator noted that the County did not have unfettered discretion to determine when a personal leave request should be granted, the Arbitrator's ruling did not define the limits of that discretion. The arbitrator, instead, eliminated any discretion on the part of the County and replaced it with a burden-shifting standard.

Inasmuch as that burden-shifting standard is not a rational construction of §5.08, the Appellate Division, citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979 and other decisions, concluded that the County's petition/complaint seeking vacatur of the arbitrator's award was correctly granted by Supreme Court.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Retired employees sue Town seeking reimbursement of certain health insurance premiums they paid following retirement

It is well settled that, "when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied 485 US 1034 [1988]; see Clark v County of Cayuga, 212 AD2d 963, 963 [4th Dept 1995]). There are two exceptions to that rule.

"The first exception applies when the contract provides otherwise . . . , i.e., the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within the ambit of the contractual dispute resolution procedures" (Buff v Village of Manlius, 115 AD3d 1156; see Ledain v Town of Ontario, 192 Misc 2d 247, 251 [Sup Ct, Wayne County 2002], affd 305 AD2d 1094 [4th Dept 2003]).

"The second exception applies when the union fails in its duty of fair representation . . . , but the employee must allege and prove that the union breached its duty to provide fair representation to the employee" (Buff, 115 AD3d at 1157 [internal quotation marks omitted]; see Ambach, 70 NY2d at 508).

In this action Plaintiffs, retired employees of the Town, did not allege or show that the union breached its duty of fair representation (see Clark, 212 AD2d at 963), and therefore only the first exception is at issue, namely "did the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within, the ambit of the contractual dispute resolution procedures."

Although Supreme Court held that the grievance procedure set out in the collective bargaining agreement [CBA] was the exclusive procedure by which Plaintiffs, retired employees of the Town, could seek redress and that they were required to bring their claims through the grievance procedure despite their status as retirees, the Appellate Division disagreed and "unanimously reversed" Supreme Court's order "on the law" and reinstated the retired employees' complaint.

Inasmuch as Plaintiffs were not aggrieved until after they had retired, and inasmuch as the CBAs "expressly limit[] the availability of the grievance procedure to current employees," the Appellate Division concluded that "the clear and unambiguous terms of the [CBAs]" establish that the grievance process was not available to Plaintiffs at the time they became aggrieved, citing Matter of DeRosa v Dyster, 90 AD3d 1470, and other decisions.

Accordingly, Plaintiffs' may go forward with their efforts seeking a court order compelling the Town to reimburse certain health insurance premiums which Plaintiffs contend they are entitled to pursuant to the terms of a CBA between Town and the Union that represented Plaintiffs during their employment by the Town.

Click HERE to access the Appellate Division's decision posted on the Internet.

Preventing a court's judgment or order which is unreviewable for mootness from "spawning any legal consequences or precedent"

The Petitioner discontinued efforts to enforce the judgment of Supreme Court and obtain the documents it had requested pursuant to New York State's Freedom of Information Law [FOIL] from Respondents. This rendered Respondents' instant appeal challenging Supreme Court's judgment and the report of the Referee moot. Further, Respondents did not establish an exception to the mootness doctrine.

The Appellate Division, noting the Respondents had not establish an exception to the mootness doctrine* and that the general rule in New York State is simply to dismiss an appeal that has been rendered moot, opined that "vacatur of an order or judgment may be an appropriate exercise of [the discretion of the court] when necessary to prevent a judgment or order which is unreviewable for mootness from spawning any legal consequences or precedent."

Explaining that a Supreme Court's orders could be used as precedent in future cases, "causing confusion of the legal issues raised", the Appellate Division found that "the circumstances presented in this case warrant the exercise of [its] discretion" and vacated the orders and judgment of Supreme Court and sealed the Referee's report.

* The Merriam-Webster.com Legal Dictionary defines the mootness doctrine as "A doctrine in judicial procedure: a court will not hear or decide a moot case unless it includes an issue that is not considered moot because it involves the public interest or constitutional questions and is likely to be repeated and otherwise evade review or resolution."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Applicant for accidental disability retirement benefits has the burden of showing the claimed disability was causally connected to the alleged line of duty injury

Plaintiff challenged the Board of Trustees of the New York City Police Pension Fund [Trustees] denial of her application for accidental disability retirement benefits. The Appellate Division unanimously affirmed the Trustees' decision,  dismissing Plaintiff's CPLR Article 78 petition.

The court said that the Trustees' determination that "there was no causal connection" between Plaintiff' line of duty injury and her disability was supported by credible evidence. The Appellate Division then observed that the Pension Fund's Medical Board recommended that Plaintiff receive ordinary disability retirement benefits rather than accidental disability retirement benefits.

The Appellate Division's decision noted that Plaintiff "was on full duty" for most of the period after experiencing her line of duty injury; had qualified with a firearm until her service retirement; and her "subjective complaints did not match the objective medical findings."

Further, said the court, although Plaintiff's surgeon stated that her disability resulted from a work-related accident, the Trustees' Medical Board disagreed, and conflicts in the evidence are to be resolved solely by the Medical Board and the Trustees.

Click HERE to access the text of the Appellate Division's decision posted on the Internet.

Public personnel law e-books available for purchase from BookLocker

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 of the State of New York or a political subdivision of New York State in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers 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 New York State laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Freedom of Information Law (FOIL)

 

Matter of Digital Forensics Unit v Records Access Officer

2023 NY Slip Op 01476

Decided on March 21, 2023

Appellate Division, First 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: March 21, 2023
Before: Manzanet-Daniels, J.P., Singh, Kennedy, Shulman, JJ.

Index No. 100836/19 Appeal No. 17552 Case No. 2021-03350

In the Matter of Digital Forensics Unit, Legal Aid Society, Petitioner-Appellant,

v

Records Access Officer, New York City Police Department, Respondent-Respondent.

Twyla Carter, The Legal Aid Society, New York (Benjamin S. Burger of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered August 26, 2021, denying the petition to compel respondent to disclose "all current NYPD rosters of officers (of all ranks) in all precincts" pursuant to the Freedom of Information Law (FOIL), granting respondent's cross motion to dismiss the petition, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The court committed no procedural error in granting respondent's cross motion to dismiss the petition. Initially, petitioner's contention that the court improperly considered the affidavit of respondent's Deputy Commissioner for Intelligence and Counterterrorism (the Miller affidavit) is unpreserved (see Islam v City of New York, 111 AD3d 493, 494 [1st Dept 2013]). In any event, respondent was entitled to submit the affidavit on its cross motion, and the court properly considered it in evaluating the merits of petitioner's claim (see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134-135 [1st Dept 2014]; see also Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

The parties' submissions established that respondent's denial of petitioner's FOIL request based on the public safety exemption was not "affected by an error of law" (CPLR 7803[3]; see also Public Officers Law § 87[2][f]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent satisfied its burden of showing that the requested information fell "squarely" within the exemption (see Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158 [1st Dept 2010]), by making a "particularized showing" that publicly releasing the information would create "a possibility of endangerment" to the safety of the public (Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435 [1st Dept 2020] [internal quotation marks omitted], lv denied 36 NY3d 906 [2021]; see also Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011], affd 20 NY3d 1028 [2013]). As articulated in respondent's determination denying petitioner's FOIL request, the disclosure of the rosters of all the NYPD precincts could permit individuals intent on causing harm to deduce which precincts have less resources and manpower, and tailor their conduct by targeting those areas. Further, the Miller affidavit described the potential harm to police officers as well as their families from the publication of their full names. Whether petitioner intends to publish the information on a publicly available website is irrelevant to the applicability of the exemption since "access to government records does not depend on the purpose for which the records are sought" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]; see also Matter of Bellamy v New York City Police Dept., 59 AD3d 353, 355 [1st Dept 2009]). Further, although respondent has since separately published the full names and precinct locations of NYPD officers, the court properly considered the record that was before the records access officer in 2019.

The advisory opinion of the Committee on Open Government concluding that the denial of the FOIL request was "unsupportable" is not binding, especially given that it did not address respondent's expressed concern regarding the risk to public safety arising from the exposure of the availability of police resources and manpower in the different precincts (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 493 [1994]; Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [1st Dept 2013]).

Respondent's disclosure of disciplinary information on its website in response to the repeal of Civil Rights Law § 50-a (see Uniformed Fire Officers Assn. v De Blasio, 846 Fed Appx 25, 29 [2d Cir 2021]) has no bearing on the propriety of the denial of petitioner's FOIL request, since respondent's creation of the online database occurred after the determination.

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 21, 2023

 

Challenging the disqualification of a candidate for failure to meet the psychological requirements for appointment to the position

A candidate for appointment to a position of police officer [Plaintiff] was disqualified by the responsible civil service commission [Commission] for failure to meet the psychological requirements of the position. Plaintiff appealed the Commission's determination. Supreme Court denied Plaintiff's appeal, dismissed the proceeding and denied Plaintiff's motion for leave to reargue the petition. Plaintiff appealed Supreme Court's ruling.

The Plaintiff had passed the written portion of the County Police Officer Examination and his name was placed on eligible list. Plaintiff was subsequently given a conditional offer of employment, subject to his successful completion of physical and psychological screenings, among other things. Following a complete psychological screening, the Commission's staff psychiatrist concluded that Plaintiff was not capable of performing the duties of a police officer and the Commission disqualified Plaintiff "for failure to meet the psychological requirements of the position."

Plaintiff appealed the Commission's determination, submitting an independent evaluation by a psychiatrist, who disagreed in detail with the conclusions of the prior evaluators, and numerous letters of recommendation. The Commission referred Plaintiff to another staff psychiatrist for an additional interview and review of his file. This second staff psychiatrist also concluded that Plaintiff was not capable of performing the duties of a police officer. The Commission affirmed its original determination disqualifying Plaintiff for appointment as a police officer and denied Plaintiff's request to administratively reargue his appeal the Commission's determination.*

Supreme Court denied the Plaintiff's petition challenging the Commission's decision and dismissed the proceeding. Petitioner appealed the Supreme Court's ruling.

The Appellate Division, noting that reinstating Plaintiff's name to the subject eligible list is no longer possible as the eligible list had expired. The court then explained that an "appointment of an individual from a constitutionally valid expired list violates Article V, §6 of the NY Constitution" citing Matter of City of New York v New York State Div. of Human Rights, 93 NY2d 768.**

Nevertheless, in light of the conditional offer of employment given to Plaintiff, and his request for back pay, the Appellate Division denied the Respondents' request that the Appellate Division dismiss Plaintiff's appeal as academic. It then held Supreme Court had properly denied the petition and dismissed the proceeding, explaining "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied," citing Matter of Coyle v Kampe, 185 AD3d 1028, and other decisions.

In the words of the Appellate Division, "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it". Further, opined the court, in determining whether a candidate is medically qualified to serve as a police officer, "the appointing agency is 'entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate'" and it is not for the courts to choose between the diverse professional opinions."

In response to Plaintiff's request for copies of the underlying psychological reports for review and challenge by his own expert, the Appellate Division ruled that Plaintiff was not entitled to such documents and opined that Supreme Court had been provided with sufficient material to be able to determine that the Commission's determination was neither irrational nor arbitrary and capricious.

The Appellate Division, in affirming Supreme Court's ruling, and awarded the Respondents one bill of costs.

*  The Appellate Division noted "no appeal lies from an order denying reargument"

** See, also, Cash v Bates, 301 NY 258, in which the Court of Appeals held that an appointment to a civil service title from an expired civil service eligible list is a "legal impossibility."

Click HERE to access the text of the Appellate Division's decision.

 

Courts will not assume the role of overseers to conform an arbitration award to its sense of justice

In a proceeding pursuant to CPLR Article 75 in which the employer [Village] sought an order vacating an arbitration award, Village appealed Supreme Court's decision denying the Village's petition. The Appellate Division affirmed the Supreme Court's ruling.

Village employs court attendants to work in the Village's Justice Court. Work assignments for court attendants were historically determined through a seniority bidding process. The Village changed the process by which that work was assigned and began assigning shifts to court attendants without regard to seniority.

The employee organization [CSEA] representing the court attendants filed a grievance, alleging that the new process by which the Village determined work assignments for court attendants violated, among other things, the "Maintenance of Standards" provision of the relevant collective bargaining agreement [CBA]. The Maintenance of Standards clause of the relevant CBA provided "Any benefits heretofore enjoyed by an employee shall not be deemed to have been altered, modified or changed unless expressly so modified, altered or changed by this agreement."

Ultimately an arbitrator determined that the Village's new process for assigning work to court attendants violated the CBA's "Maintenance of Standards" provision. Village commenced the instant proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award, contending that the arbitration award was contrary to public policy.

Supreme Court denied the Village's petition and the Village appealed. Citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d 321, and other decisions. the Appellate Division affirm the lower court's ruling. The court explained "Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management [, and] [i]n circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role".

Further, said the Appellate Division, "An application to vacate an arbitration award may be granted only in narrow circumstances, such as where "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." Further, opined the court, an arbitrator "exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Noting that a party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence, the Appellate Division's decision pointed out that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies" and courts may not examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because a court believes its interpretation would be the better one.

Indeed, observed the Appellate Division, even where an arbitrator "makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice", citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d at 326; and Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-480).

Concluding that the Supreme Court properly determined that the arbitrator's award was neither irrational nor violated a strong public policy, and that the arbitrator did not exceed a specifically enumerated limitation on his authority, the Appellate Division ruled that  Supreme Court properly denied the Village's petition to vacate the arbitration award.

Click HERE to access the Appellate Division's decision posted on the Internet.

DiNapoli releases fiscal stress scores

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

On March 22, 2023, State Comptroller Thomas P. DiNapoli announced that five villages were designated in fiscal stress under his Fiscal Stress Monitoring System (FSMS). DiNapoli evaluated all non-calendar year local governments and designated one village in “moderate fiscal stress” and four villages as “susceptible to fiscal stress.”

The village of Coxsackie (Greene County) was classified in “moderate fiscal stress.” The four villages classified as “susceptible to fiscal stress” are: Chateaugay (Franklin County), Canajoharie (Montgomery County), Huntington Bay (Suffolk County), and Mohawk (Herkimer County). No municipalities were designated in the highest category of “significant fiscal stress” in this round of scoring.

“Federal pandemic relief packages provided significant aid to local governments over the past three years, helping to balance their books during unprecedented circumstances,” DiNapoli said. “Now that funding is winding down and local officials will have to closely monitor their financial conditions. I encourage local governments to use our self-assessment tool to help them budget and avoid potential pitfalls in the coming years.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 519 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data for 2022. The scores also cover the 17 cities with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

In total, 95 local governments, including the cities of Lackawanna, Olean, Rensselaer, Salamanca and Syracuse, did not file their data in time to receive a FSMS score, a date that is at least three months past their statutory filing deadline. This is a significant increase of 30% from last year. Salamanca and Rensselaer have not filed their data in time to receive fiscal stress scores since 2015 and 2013 respectively.

DiNapoli’s office continues to make sure local governments are aware of both the statutory filing deadlines, as well as the critical filing dates for receiving a fiscal stress score.

“It is important that local officials file timely financial reports disclosing to the public the information they are using to make financial decisions, but we are seeing an increasing number that do not,” DiNapoli said. “When a local government fails to keep this legally required financial information current and accessible, it undermines confidence and accountability in a local government’s finances and forgoes an opportunity to learn of future risks from our early warning system.”

DiNapoli noted the city of Amsterdam in Montgomery County was classified in “moderate fiscal stress” last year and is now classified as “no designation,” while the city of Long Beach in Nassau County was classified in “susceptible to fiscal stress” last year and is now classified as “no designation.”

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

DiNapoli’s office has a self-assessment tool that allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which is especially helpful during periods of revenue and expenditure fluctuations.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, most cities and a few villages.

List of Villages and Cities in Fiscal Stress Municipalities in Fiscal Stress

List of Villages and Cities that Failed to File Financial Information Municipalities that Failed to File or Inconclusive List

Complete List of Fiscal Stress Scores Data Files

FSMS Search Tool Tool

 

A reasonable penalty under the circumstances is to be imposed on an employee found guilty of disciplinary charges

In this case the Appellate Division applied the lesson set out in the Court of Appeals' decision in Pell v Board of Educucation of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, typically referred to as the Pell Doctrine: the disciplinary penalty imposed on a individual found guilty of disciplinary charges must be proportionate to the offense.

The School Board [Board] filed disciplinary charges against one of its employees, a custodial worker, pursuant to §75 of the Civil Service Law alleging incompetence and misconduct. The hearing officer found the employee [Petitioner] guilty of incompetence, insubordination, and misconduct and recommended that the Petitioner be terminated from his position. The Board accepted the hearing officer's findings and recommendation and terminated Petitioner.

Petitioner appealed and the Appellate Divisions, noted that its review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to §75 of the Civil Service Law is limited to considering whether the Board's determination "was supported by substantial evidence."*

The Appellate Division concluded that there was substantial evidence in the record supporting the determination that the Petitioner was guilty of incompetence, insubordination, and misconduct. The court's decision reports that "The record indicates, inter alia, that [Petitioner] discovered a knife and pepper spray under a radiator and left them there for approximately three hours knowing that there were students and other staff in the building, and that the [Petitioner] gave two students $25 each after betting that one of the students would win in a basketball game against the other."

Citing Branam v Simons, 300 AD2d 973, the court said that although "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty," in light of all the circumstances, including the Petitioner's length of service and lack of a prior disciplinary record, "the penalty of termination was so disproportionate to the offense as to be shocking to one's sense of fairness."**.

Accordingly, the Appellate Division granted Petitioner's appeal "to the extent that so much of the determination as terminated the petitioner's employment is annulled" and remanded the matter to the Board "for the imposition of a lesser penalty."

* The court opined that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." 

** Here the Appellate Division refers to the decision of the Court of Appeals in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Accepting the benefits of a settlement agreement deemed ratification and "not lightly cast aside" by the courts

A Village police officer [Officer] was involved in an off-duty accident that rendered him paralyzed from the waist down. Officer filed a notice of claim alleging that the Village discriminated against him after he became disabled. Approximately nine months later, Officer executed a settlement agreement [Agreement] pursuant to which he agreed to withdraw his notice of claim and waive his right to assert certain claims against the Village in exchange for certain benefits, including remaining employed as a police officer for three years until 2016, when his pension rights would vest. The Agreement also provided that Officer would be eligible to continue to be employed by the Village in a different capacity at a reduced rate of pay.

Officer worked in a transitional light-duty police officer position beyond the 2016 deadline established in the Agreement.  In March 2019, however, the Village informed the plaintiff that it would be enforcing the terms of the settlement agreement and instructed him to resign as a police officer as of April 1, 2019. The Village invited Officer to apply for certain lower-paying light duty positions in accordance with the terms of the settlement agreement.

In June 2019, Officer commenced an action to set the Agreement aside. Supreme Court granted a cross-motion to dismiss the complaint, holding that Officer's complaint was subject to dismissal based on Officer's ratification of the Agreement. Subsequent efforts by Officer to vacate the agreement and obtain other relief proved fruitless and ultimately the various efforts made by Officer to set the Agreement aside were considered by the Appellate Division.

The Appellate Division, citing Hallock v State of New York, 64 NY2d 224, said that "Stipulations of settlement between parties are binding contracts enforceable by the court and, as such, they are favored and [are] 'not lightly cast aside' ... especially where, as here, the party seeking to set aside the stipulation was represented by counsel."

Noting that Officer "accepted the benefits of the settlement agreement" continuing to work as a police officer for the Village from 2013 through early 2019, three years beyond the end date he bargained for and did not seek to set aside the Agreement on any of the grounds raised in his complaint at any point before commencing [the instant] action in 2019, the Appellate Division held that the Village was "entitled to dismissal of the complaint on the ground that [Officer] ratified the settlement agreement."

Click HERE to access the Appellate Division's decision posted on the Internet.

Workers' Compensation Board required to address the issues raised by a Claimant for workers' compensation benefits in an administrative appeal to the Board

The Workers' Compensation Board, [Board] found that where, as here, a claim for workers' compensation benefits "was never indexed," the provisions of Workers' Compensation Law §25(2)(b) are inapplicable and ruled that the employer did not file an untimely notice of controversy. Claimant's subsequent application for reconsideration was denied. Claimant appealed the Board's decision.

The Appellate Division held that although the Board concluded that Workers' Compensation Law §25(2)(b) is inapplicable given that the claim was never indexed, the Board did not address the related issue raised upon administrative appeal that the employer's initial FROI-00 form was a binding acceptance of the claim.* Further, said the court, the Board provided "no reasoning or basis for its determination that the notice of controversy was timely filed." 

This, said the Appellate Division , precluded "a meaningful appellate review by this Court".

Citing  Matter of Sequino v Sears Holdings, 206 AD3d 1408 and Matter of Ippolito v NYC Tr. Auth., 203 AD3d 1360, the Appellate Division reversed the Board's decision, concluding that the matter must be remitted to the Board for it "to satisfy its obligation to address the issues raised by claimant on administrative appeal and provide a detailed explanation for its determination."

* Claimant contended that the employer's initial FROI-00 form indicated "L — With Liability" and should be deemed a binding acceptance of the claim with liability. The Appellate Division's decision notes that 12 NYCRR 300.37(c) "dispenses with the need for indexing where a claim is accepted".

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Former Town Court Clerk charged with pocketing court fines and fees

State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco, and the New York State Police announced the arrest of Eileen Steurrys, the former part time court clerk for the Town of Marion, for the alleged theft of $59,293 in court fines, fees and surcharges.*

“The defendant went to great lengths in her attempt to cover up her alleged theft of public funds.  Now, because of my office’s investigation and our partnership with state and local law enforcement, she faces the consequences of her actions,” DiNapoli said. “My thanks to District Attorney Calarco and the State Police for helping my office fight public corruption.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and District Attorney’s Office, for their hard work in putting an end to this deceitful plan. The arrest of this individual sends a strong message that we will not tolerate dishonest actions by those who use their position at the expense of the public. The State Police remains ready to assist in investigating and apprehending those individuals willing to engage in fraudulent acts.”

Michael D. Calarco, Wayne County District Attorney said, “I wish to thank and commend Mr. DiNapoli and the NYSP for their hard work and cooperation. This is a clear example of agencies from State and Local government working together to serve and protect the public.”

The former court clerk’s crimes were uncovered during an audit of the Town of Marion Court Fund, which found court fees were not always being deposited. A resulting investigation in collaboration with  Wayne County District Attorney Calarco and the State Police determined that, from 2016 to 2021, the defendant allegedly stole over $50,000, then altered court records and created phony receipts in an effort to conceal her crimes.

She admitted to the thefts when questioned by DiNapoli’s investigators and stated that she had altered and deleted court records when she learned of the impending audit before abruptly retiring as a part time court clerk.

Steurrys, 67, was charged Wednesday with grand larceny in the second degree, corrupting the government in the second degree, tampering with public records in the first degree and official misconduct. She was arraigned in Wayne County’s Court Arraignment Procedure before Judge Marsha Williams. She is due back in court on March 22nd.

N.B. The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

* The practice of using a public office or position of trust for one's own gain or advantage is sometimes referred to as "jobbery". See https://www.merriam-webster.com/dictionary/jobbery. 

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Since taking office in 2007, New York State Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving New York taxpayer funds may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, or by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc.

 

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: payable to firefighters, police officers 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.

 

Recent personnel disciplinary decisions handed down by NYC Office of Administrative Trials and Hearings Administrative Law Judges

Supervising OATH Administrative Law Judge Joan R. Salzman recommended a 15-day suspension for a steamfitter who was discourteous to his supervisor on two occasions. On one of these occasions, the employee made an anti-Latino remark to express his dissatisfaction with his supervisor. Although the employee was also Latino, his remark was offensive and unacceptable workplace behavior. Click HERE to access Judge Salzman's decision.

 

OATH Administrative Law Judge Christine Stecura recommended dismissing charges against a paramedic charged with stealing money from a patient. The paramedic’s partner alleged that he saw the paramedic take money from the patient’s apartment but the ALJ found that petitioner failed to corroborate the partner’s testimony. The patient’s ex-wife’s testimony that she did not see the paramedic take any money and did not notice any money missing from the apartment undermined petitioner’s case. Click HERE to access Judge Stecura's decision.

 

OATH Administrative Law Judge recommended dismissing charges against a sergeant charged with failing to issue a summons to a driver, unlawfully ordering a patrol officer to dispose of marijuana recovered during a traffic stop, and failing to keep an accurate account of marijuana recovery. The allegations against the sergeant were made by the patrol officer, who was being investigated about his conduct during the traffic stop. The patrol officer did not testify at trial. Instead, petitioner relied on the patrol officer’s unsworn statements to an investigator and presented the investigator’s testimony and report at trial. The ALJ found respondent’s testimony denying the allegations to be more credible than the hearsay statements attributed to the patrol officer. The investigator’s report was also found to be unreliable. Click HERE to access Judge McGeachy-Kuls' decision.

 

OATH Administrative Law Judge Orlando Rodriguez recommended termination of employment for an investigator charged with misconduct and incompetence. The Department proved that the employee persistently demonstrated an unwillingness to perform his job and was excessively absent. The ALJ also found that the employee was insubordinate to his supervisors by failing to respond to e-mails, refusing to attend conferences and trainings, sending discourteous e-mails, and being absent without leave. Click HERE to access Judge Rodriguez's decision.

 

Retirees found to have a vested contract right to health insurance in retirement

Former firefighters and the spouses of deceased former firefighters  who retired from their employment with City of Albany [City] before October 20, 2015, [Plaintiffs], were advised that effective January 1, 2016, there would be changes to the health insurance plan and Plaintiffs would be required to pay annual $250 deductibles for insured individuals and $500 deductibles for insured families.

The Union filed a grievance on behalf of its members with respect this change's affecting active union members upon their eventual retirement and submitted the matter to  arbitration. The Union contended that the City's unilateral change to retirees' health insurance violated the terms of §27.1 of the relevant collective bargaining agreements [CBA]. 

An arbitrator found that the City's failure to negotiate the new deductibles violated the CBA and a second arbitrator subsequently found that, by imposing deductibles, the City was no longer providing substantially equivalent coverage. The second arbitration award required the City to reimburse deductibles paid by all retirees who retired on or after October 20, 2015. Both arbitration awards were confirmed.

Plaintiffs in this action, however, were not included in the arbitration award because they or their deceased spouses had retired prior to October 20, 2015, the effective date of the award. Plaintiffs commenced the instant action against the City alleging a breach of contract and requested a declaratory judgment. Plaintiffs also sought reimbursement for their past and continuing payment of the deductibles. Plaintiffs moved for summary judgment while the City cross-moved for summary judgment dismissing the complaint.

Supreme Court found that Plaintiffs had a vested contract right under the CBA and that collateral estoppel precluded the City from relitigating the issue of whether §27.1 of the CBA was violated. Accordingly, the court granted Plaintiffs' motion for summary judgment and denied the City's cross-motion. The City appealed.

The Appellate Division affirmed the Supreme Court's ruling explaining:

1. Plaintiffs' right to health insurance without deductibles was a form of deferred compensation earned during their employment, to which they had a vested right as §27.1  of the CBA was "neither expressly limited to active union members ... nor does it clearly include retired former union members."

2. Given this ambiguity, the court may look to past practice to give meaning to the contract; and

3. While it is true that past practice "is merely an interpretive tool and cannot be used to create a contractual right independent of some express source in the underlying agreement" there is an express source for Plaintiffs' claimed contractual right here, namely §27.1 of the CBA and its reference to the "existing health insurance plan."

Citing Holloway v City of Albany, 169 AD3d 1133, the Appellate Division noted the record revealed "that it was the longstanding practice of the City not to charge deductibles as part of the health insurance plan for retirees."

Indeed, said the Appellate Division, an affidavit submitted to Supreme Court by one of the Plaintiffs, a former Union president, reflected that no deductible had been charged to retirees for at least 20 years before his retirement in 2010, and the lack of a deductible was an important factor in his decision to opt into the City's health insurance plan when he retired. Additionally, opined the court, there is "no meaningful distinction between Holloway and the instant case".

Acknowledging what it characterized as "the well-established principle that 'the continuation of health insurance payments to current employees after their retirement ... constitute a form of compensation earned by the employee while employed'", the Appellate Division concluded that Supreme Court "correctly determined that plaintiffs have a vested contractual right under section 27.1."

Addressing the City's argument that the Doctrine of Collateral Estoppel did not bar them from litigating the issue of whether they were required to negotiate the imposition of deductibles for retirees with the Union in the instant matter, the Appellate Division said it agreed with Supreme Court that the issue of whether the City violated §27.1 of the CBA by unilaterally imposing deductibles upon retirees was already determined in arbitration, "where the City had a full and fair opportunity to argue its position." Citing Simmons v Trans Express Inc., 37 NY3d 107, the Appellate Division observed that notwithstanding the fact that Plaintiffs, as retirees, were not involved in the two underlying arbitrations, "the identity of parties is not an element of this doctrine".

Click HERE to access the Appellate Division's decision posted on the Internet.