ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 30, 2023

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.

 

April 29, 2023

Judicial review of a determination and awards by the New York State Commissioner of Human Rights

The New York State Division of Human Rights [Division], after a hearing, found that the Town [Employer] had unlawfully discriminated against the Complainant on the basis of her disability. 

Employer appealed the Divisions determinations and awards pursuant to Executive Law §298 and Article 78 of the CPLR. 

The Division cross-petitioned to enforce its determinations and the amounts it had awarded Complainant for back pay, compensatory damages for mental anguish and the civil penalty it had assessed on Employer.

The Appellate Division, "on the law and as a matter of discretion," reduced the amounts awarded Complainant by the Division for [1] back pay, [2] compensatory damages for mental anguish, [3] the civil penalty the Division had assessed on Employer and [4] otherwise confirmed the Division's determinations.

The Appellate Division's decision is set out below:

 

Matter of Town of Hempstead v New York State Div. of Human Rights

2023 NY Slip Op 02129

Decided on April 26, 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 April 26, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
WILLIAM G. FORD
LILLIAN WAN, JJ.


2019-14251
(Index No. 608005/19)

[*1]In the Matter of Town of Hempstead, petitioner,

v

New York State Division of Human Rights, et al., respondents.




Berkman, Henoch, Peterson & Peddy, P.C., Garden City, NY (Donna A. Napolitano and Nicholas Tuffarelli of counsel), for petitioner.

Caroline J. Downey, General Counsel, Bronx, NY (Toni Ann Hollifield of counsel), for respondent New York State Division of Human Rights.

Lisa Whitaker, Roosevelt, NY, respondent pro se.

 

DECISION & JUDGMENT

Proceeding pursuant to Executive Law §298 and CPLR article 78 to review a determination of the Commissioner of the New York State Division of Human Rights dated April 16, 2019, and cross-petition by the New York State Division of Human Rights pursuant to Executive Law §298 to enforce the determination. The determination, after a hearing, found that the petitioner unlawfully discriminated against the complainant on the basis of her disability, awarded her back pay in the principal sum of $69,865.64, for the period from November 8, 2012, until the date of her retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received, and compensatory damages for mental anguish in the principal sum of $40,000, and assessed a civil penalty in the principal sum of $35,000.

ADJUDGED that the petition is granted, on the law and as a matter of discretion, without costs or disbursements, to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty assessed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

In March 2000, the respondent Lisa Whitaker (hereinafter the complainant) was hired by the Town of Hempstead Department of Occupational Resources (hereinafter DOOR) as a life skills counselor. The complainant's duties included meeting with program participants who had experienced severe difficulties finding employment, counseling them on how to become gainfully employed, and entering information on a computer.

In or about September 2010, the complainant suffered a work-related injury. She submitted to DOOR a note from a doctor which stated that she was "totally disabled" and unable to work. She began receiving Workers' Compensation benefits in or about September 2011. In March 2012, the complainant filed a complaint with the respondent New York State Division of Human Rights (hereinafter the DHR), claiming discrimination in the conditions of her employment.

In October 2012, the complainant asked to return to work, noting that her doctor had advised her that she could work on a reduced schedule two to three days per week, but that she would be unable to type or to lift and carry objects. DOOR advised her in writing that she could not return to work with a reduced schedule and restricted duties. She could either return to work full time, five days per week, with full duties, or she could request a return from Workers' Compensation to full time work, and then upon her return request a partial leave of absence with a reduced schedule of three days per week. She was further advised that she would have to close her Workers' Compensation case before she could be considered for a reduced schedule. The complainant did not reply.

In March 2013, the complainant was diagnosed with major depressive disorder, which was related at least in part to her medical condition. In May 2013, the attorney handling the complainant's proceedings before the DHR requested an adjournment of an upcoming hearing until September 2013 because the complainant was undergoing several surgeries, and was classified as "totally disabled" under the Workers' Compensation law. In July 2013, the attorney submitted an additional adjournment request, and annexed a physician's report dated July 3, 2013, which stated that, because of her back pain, the complainant could not tolerate sitting through even a short hearing.

On July 15, 2013, the Town advised the complainant that, because she had been on a leave of absence for an occupational injury for in excess of one year, her employment was terminated pursuant to the Civil Service Law, but that she could be reinstated if she were found fit to return to work after a medical examination. In response, the complainant submitted to DOOR a report from another physician which stated that the complainant was able to return to work on full duties as of July 30, 2013. The complainant also requested a pre-termination hearing in accordance with the collective bargaining agreement between the Town and her union. In response to her request for a pre-termination hearing, the Town advised the complainant that in order to return to work she would have to submit a report clearing her to return from the doctor who found her unfit to attend the hearing before the DHR. The complainant then submitted a report from the doctor who found her unfit to attend the hearing before the DHR, which stated that the complainant could return to work "full duty as tolerated." The Town responded that the report was conditional, and that it would not accept the report as proof that the complainant could return to work on full duties.

The Town and the complainant attempted to negotiate a settlement of the proceedings before the DHR that would allow the complainant to return to work, but in December 2013, the complainant's position as life skills counselor was eliminated when DOOR's budget was adjusted. Further negotiations were halted in March 2014, when the complainant reopened her Workers' Compensation claim following an additional surgery on her shoulder. On June 8, 2014, the complainant retired from DOOR. On June 27, 2014, the complainant filed another complaint with the DHR, claiming that she had been forced to retire because she had not been afforded an accommodation for her disability.

After a hearing, an Administrative Law Judge (hereinafter ALJ) concluded that the Town discriminated against the complainant with respect to her disability when it refused to accept her medical documentation that she was fit to return to work full time, failed to inform her of the specific language that it would accept in her medical documentation, and eliminated her position when DOOR's budget was adjusted. The ALJ further determined that the Town's actions had been taken in retaliation for the complainant's litigation before the DHR. The ALJ recommended that the complainant be awarded back pay in the principal sum of $27,477.64, for the 10-month period from August 2013 through June 2014. The ALJ also recommended an award in the principal sum of $40,000 for mental anguish, and the imposition of a civil penalty in the principal sum of $35,000.

In a determination dated April 16, 2019, the Commissioner of the DHR concluded that the petitioner unlawfully discriminated against the complainant when it "refused to permit her to return to work in October of 2012," and failed to provide her with a reasonable accommodation for her disability. The Commissioner acknowledged that the Town informed the complainant that a reduced schedule was possible, but determined that the Town failed to establish that it was unduly burdensome to provide the complainant with typing assistance such as dictation equipment and/or another employee to assist her. The Commissioner increased the award of back pay to the principal sum of $69,865.64, for the period from November 8, 2012, until the date of the complainant's retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received. The complainant's retaliation claim was dismissed. In accordance with the recommendation of the ALJ, the Commissioner awarded the complainant the principal sum of $40,000 for mental anguish, and imposed a civil penalty in the principal sum of $35,000. Thereafter, the Town commenced this proceeding to review the determination, and the DHR cross-petitioned to enforce the determination. By order dated October 10, 2019, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

"The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination . . . is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331). "Substantial evidence 'means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180).

The determination that the complainant was entitled to back pay from November 2012, was not supported by substantial evidence in the record. Although a reasonable accommodation may include "job restructuring" (9 NYCRR 466.11[a][2]), "[t]he disabled individual must be able, with or without accommodation, to attain reasonable performance. Reasonable performance is not perfect performance or performance unaffected by the disability, but reasonable job performance, reasonably meeting the employer's needs to achieve its business goals" (9 NYCRR 466.11[d][1][ii]). Here, the complainant testified at the hearing that her position as a life skills counselor required knowledge of computer programs and writing skills, and that her duties included entering information on a computer. Thus, typing on a computer was an essential aspect of her position.

"[I]f an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834; see Executive Law § 292[21]). The employee bears the burden of proof on whether he or she is able to perform the core duties of his or her job even with a reasonable accommodation, and in this case the complainant failed to satisfy that burden (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d at 834). Further, requiring DOOR to reassign the complainant's work to coworkers would have been an unreasonable accommodation (see Pembroke v New York State Off. of Ct. Admin., 306 AD2d 185).

The complainant's employment was purportedly terminated pursuant to Civil Service Law § 71, which provides, in pertinent part, that "[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year." However, that provision gives the employee the opportunity to seek reinstatement based upon medical certification "that such person is physically and mentally fit to perform the duties of his or her former position."

Here, in August 2013, the complainant sought reinstatement and submitted medical documentation of her fitness for duty. Yet she was not permitted to return to work and her position [*2]was eliminated when DOOR's budget was adjusted.

To make a prima facie showing of a violation of Executive Law § 296(1)(a), which prohibits discrimination in employment based upon a disability, the complainant "must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d at 900 [internal quotation marks omitted]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). "Once a prima facie case is made, the burden of production shifts to the employer to rebut the presumption with evidence that the complainant was discharged for a legitimate, nondiscriminatory reason" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). Here, the complainant established she was a member of a protected class, i.e., a person with a disability, her medical evidence indicated that she was capable of assuming full duty, but she suffered an adverse employment action, i.e., the denial of reinstatement, under circumstances giving rise to the inference of discrimination based upon her disability. The Town failed to rebut that presumption. Accordingly, the complainant was entitled to an award of back pay for the 10-month period from August 2013, when the complainant sought reinstatement, through June 2014, when she retired from DOOR. However, the Workers' Compensation benefits she received for that period should have been offset against an award of back pay to prevent a double recovery (see Matter of Grand Union Co. v Mercado, 263 AD2d 923; Matter of Allender v Mercado, 233 AD2d 153). The petitioner is self-insured with respect to Workers' Compensation benefits, therefore there is no risk that an insurance carrier will impose a lien on the award of back pay, resulting in the complainant suffering a double debit (cf. Matter of Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 131 AD3d 777).

The ALJ recommended the imposition of a civil penalty in the principal sum of $35,000 based upon her finding of retaliation as well as discrimination in responding to the complainant's efforts for reinstatement in August 2013. Since the Commissioner dismissed the retaliation claim, the civil penalty imposed is disproportionate to the offense (see Matter of Kelly v Safir, 96 NY2d 32, 36; Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566), and must be reduced to the principal sum of $10,000 (see Matter of Mukattash v Human Rights Commn. of Westchester County, 97 AD3d 584, 586).

Similarly a court will intervene when an award for mental anguish is not reasonably related to the wrongdoing, is not supported by substantial evidence, or does not compare with awards for similar injuries (see Matter of Mutual Apts., Inc. v New York City Commn. on Human Rights, 203 AD3d 1154, 1158). Since the complainant's diagnosis of major depressive disorder occurred in March 2013, before the discriminatory conduct in August 2013, and was initially related at least in part to the complainant's medical condition, the award of the principal sum of $40,000 was not reasonably related to the discriminatory conduct (see Matter of Freudenthal v County of Nassau, 99 NY2d 285, 291; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 217, 219), and must be reduced to the principal sum of $10,000 (see Matter of MTA Trading, Inc. v Kirkland, 84 AD3d 811; Matter of Woehrling v New York State Div. of Human Rights, 56 AD3d 1304, 1306).

Accordingly, the petition must be granted to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty imposed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

 

April 28, 2023

The litigation of a CPLR Article 78 petition determined to be barred by the doctrine of res judicata

The Doctrine of Res Judicata prevents a party from bringing a claim once that particular claim has been subjected to a final judgment in earlier litigation where:

(1) the parties are the same; 

(2) the subject matter of the claim is the same; 

(3) the issues are the same and relate to the same subject matter; and 

(4) the capacities of the parties are the same with respect to the subject matter and the issues presented.

The Appellate Division held that the instant CPLR Article 78 proceeding was barred pursuant to the doctrine of res judicata.

Citing Matter of Police Benevolent Assoc. of The City of New York, Inc. v de Blasio, Supreme Court, Richmond County, Feb. 16, 2022, the Appellate Division held that the matters raised in the instant Article 78 petition were the subject of a prior Article 78 proceeding in Richmond County in which Supreme Court issued a valid final judgment on the merits, denying the petition and dismissing the proceeding.

Furthermore, opined the Appellate Division, "the claims in this proceeding are substantially similar to claims that the court in the Richmond County proceeding declined to address on the grounds that they were raised for the first time in reply" which petitioners could have raised by including them in the petition or by seeking leave to amend the petition.

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

April 27, 2023

A claimant for unemployment insurance benefits must be totally unemployed to be eligible to receive such benefits

A full-time school district teaching assistant [Claimant] was also employed as a part time home instruction teacher. When furloughed from her part-time position, Claimant filed an application for unemployment insurance benefits. Based upon Claimant's weekly certifications that she had worked zero days during the week for which she was certifying for benefits, Claimant received unemployment insurance benefits for that period as well as federal pandemic unemployment compensation [FPUC] pursuant to the Coronavirus Aid, Relief and Economic Security Act of 2020 [The CARES Act].

The Department of Labor [Labor], however, determined that Claimant was ineligible for unemployment insurance benefits because she was not totally unemployed as she continued to work at and receive her full salary from the school district during the relevant time period. Accordingly, Labor charged her with recoverable overpayment of the state benefits and FPUC received and imposed a monetary penalty and forfeiture of future benefit days based upon a finding that Claimant made willful false statements to obtain those benefits.

An Administrative Law Judge sustained Labor's initial determinations, which decision was affirmed by the Unemployment Insurance Appeal Board [Board]. Claimant appealed the Board's decision.

The Appellate Division sustained the Board ruling, noting that the record and Claimant's testimony indicated that Claimant "continued to work remotely in her full-time position at the school district and to receive her regular salary during the period at issue." The court found that the Board's decision that Claimant was ineligible for unemployment insurance benefits because she was not totally unemployed was supported by substantial evidence. Acknowledging the Board's finding that Claimant was not totally unemployed, the Appellate Division concluded that as Claimant was ineligible for unemployment insurance benefits under state law, Claimant was also ineligible to receive federal pandemic assistance under the CARES Act.

As to the Board's recovery of the overpayment of benefits, the court noted that where a claimant willfully makes a false statement or representation, or willfully conceals a pertinent fact in connection with his or her claim for unemployment insurance benefits, even if the misrepresentation was unintentional, the benefits paid to the claimant are recoverable.

Considering that Claimant did not disclose her continued full-time employment by the school district when certifying for and obtaining unemployment benefits, the Appellate Division opined that "there is no basis to disturb the Board's finding that the benefits paid to [Claimant] were recoverable."

In addition, as Claimant failed to disclose a pertinent fact and therefore made willful false statements, the Appellate Division held that the imposition of a monetary penalty and forfeiture of future benefit days was warranted. Finally, said the court, the FPUC received by Claimant was also recoverable.

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

April 26, 2023

The writ of mandamus and other ancient common law "writs"

In order to compel a public officer or body to perform a particular act or correct an omission, a party may seek a court order in the nature of a Writ of Mandamus, one of the ancient writs in common law. This writ is an extraordinary remedy and if granted by the court, would compel "an officer or body to perform a specified ministerial act that is required by law to be performed".

In contrast, mandamus "does not lie to enforce a task or duty that is discretionary" as demonstrated by the decisions in Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, affd 32 NY3d 1091, cert denied, 139 S Ct 2651; and  Matter of Meyer v Zucker, 185 AD3d 1265, lv denied 36 NY3d 904).

As the Appellate Division explained in Alliance, supra, "A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result". Further, mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, as the Court of Appeals opined in Klostermann v Cuomo, 61 NY2d 525, mandamus will lie to compel a body to perform a mandated duty, not how that duty is to be performed.

As the Appellate Division noted in Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535, quoting Tango v Tulevech, 61 NY2d 34, "A discretionary act 'involves the exercise of reasoned judgment which could typically produce different acceptable results[,] whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result' ".

Other ancient common law writs include the writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].

 The University of Southern California [USC] Gould School of Law has created an "English Medieval Legal Documents Database, A Compilation of Published Sources from 600 to 1535" which it has posted on the Internet. Click HERE to access this resource posted by USC.

New York's Civil Practice Law and Rules [CPLR], sets out the modern equivalents of the surviving ancient writs available in New York jurisprudence as noted in Matter of Brusco v Braun, 84 NY2d 674.

 

 

April 25, 2023

Vicarious liability of agencies for the alleged negligence of operators of the agency's fire and other emergency vehicles

In recognition of the unique responsibilities placed on fire truck and other emergency vehicle operators to respond quickly to calls for aid, Vehicle and Traffic Law §1104 grants such drivers the "privilege" to proceed past red lights when involved in emergency operations, as long as specified safety precautions are observed and they do not act recklessly.*

With respect to volunteer fire companies, General Municipal Law §205-b makes fire districts vicariously liable "for the negligence of volunteer firefighters" when they operate fire district vehicles in the discharge of their duties.

The issue before the Court of Appeals in this action was whether the relevant statutes authorize a claim against a fire district for the alleged "negligence" of a volunteer firefighter when the firefighter's actions are otherwise privileged and subject to a heightened recklessness standard under Vehicle and Traffic Law §1104.

The Court of Appeals concluded that that imposition of vicarious liability for a driver's negligence within the context of the instant appeal would be contrary to legislative intent, the precedents of the Court of Appeals and general principles of negligence law and vicarious liability.

* See Vehicle and Traffic Law §1104 [a]-[c], [e]).

Click HERE to access the full text of the Court of Appeals' decision posted on the Internet.

 

April 24, 2023

Hearsay evidence is admissible in an administrative hearing

The Plaintiff [Petitioner] in this CPLR Article 78 action was accused of leaving a 22-month-old child alone and unsupervised, outside on a playground while acting in her capacity as a day care worker at a community family development day care center. The Dutchess County Department of Community and Family Services investigated the report and thereafter determined that the report of "maltreatment" was appropriate.

Petitioner made an application to the New York State Office of Children and Family Services [OCFS] to amend the indicated report of the State Central Register from "indicated" to "unfounded" and to seal the report. OCFS denied Petitioner's application. Petitioner then commenced  an Article 78 CPLR proceeding seeking judicial review OCFS' determination.

Citing Matter of Brown v Velez, 153 AD3d 517, the Appellate Division observed that at an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established "by a preponderance of the evidence"*.

Further, opined the court, "Judicial review of a determination that a report of child maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record" noting that where substantial evidence exists, "the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

Concluding that the Petitioner was one of the individuals responsible for the child at the time of the incident is supported by substantial evidence in the record, the Appellate Division opined contrary to Petitioner's contention, "the fact that the [OCFS]  determination was based, in large part, on hearsay evidence, does not require a different conclusion. Hearsay is admissible in an administrative hearing and, in this case, was sufficiently relevant and probative to support the determination".

* The preponderance of the evidence test requires that each element of the proof advanced by the charging party's "is more likely true than not."

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

 

April 22, 2023

Supreme Court correctly dismissed Plaintiff's complaint alleging age discrimination

The Appellate Division ruled that Supreme Court correctly dismissed the Plaintiff's complaint alleging the New York State Insurance Fund [NYSIF] discriminated against him because of his age within meaning of the New York State Human Rights Law (Executive Law §296[1][a]). 

The Appellate Division opined the defendant NYSIF "proffered legitimate, nondiscriminatory reasons for its refusal to hire the Plaintiff for its claims services representative or underwriter trainee positions" and Plaintiff failed to raise a triable issue of fact as to whether the reasons advanced by NYSIF in its defense were pretextual.

 

Ruderman v New York State Ins. Fund

2023 NY Slip Op 01974

Decided on April 18, 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: April 18, 2023
Before: Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.


Index No. 650940/11 Appeal No. 51 Case No. 2022-03934

Irving Ruderman, Plaintiff-Appellant,

v

New York State Insurance Fund, Defendant-Respondents, John/Jane Does I-XX, Defendants.

Pardalis & Nohavicka, LLP, New York (Israel Klein of counsel), for appellant.

Letitia James, Attorney General, New York (Kristin Cooper Holladay of counsel), for respondent.

Order, Supreme Court, New York County (Richard Latin, J.), entered March 17, 2022, which granted defendant New York State Insurance Fund's (NYSIF) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.[FN1]

The court correctly dismissed the complaint alleging age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]). NYSIF proffered legitimate, nondiscriminatory reasons for its refusal to hire plaintiff for its claims services representative or underwriter trainee positions, and plaintiff failed to raise a triable issue of fact as to whether the reasons were pretextual (see Sedhom v SUNY Downstate Med. Ctr., 201 AD3d 536 [1st Dept 2022]). It is undisputed that plaintiff was late for his interview, that his application was incomplete, and that his resume lacked details as to his past employment. Further, NYSIF was unable to verify plaintiff's employment with the employers that plaintiff provided. Plaintiff failed to show that any of the nondiscriminatory reasons proffered by NYSIF were "false or unworthy of belief" and that age discrimination was the real reason for its refusal to hire him (DeFreitas v Bronx Lebonon Hosp. Ctr., 168 AD3d 541, 541 [1st Dept 2019]; see also Kwong v City of New York, 204 AD3d 442, 444 [1st Dept 2022], lv dismissed 38 NY3d 1174 [2022]).

Although plaintiff's score on the New York State Professional Careers Test was higher than those of the selected candidates, state employers are not required to select the highest scoring individual, and factors outside of performance on the test may be taken into consideration in making civil service appointments (see Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d 526, 529 [1975]). Plaintiff's contention that his undergraduate degree and years of experience automatically make him more qualified than the selected candidates is unavailing, particularly in light of NYSIF's showing that other candidates were better suited for the roles based on the many factors considered.

Finally, most of NYSIF's interviewers were in plaintiff's protected class, and NYSIF ultimately selected candidates from a broad age range, including at least one candidate who was the same age as plaintiff (see Miller v News Am., 162 AD3d 422, 422 [1st Dept 2018]). These factors weigh against any inference of discrimination (see id.; see also Sedhom, 201 AD3d at 537), and undermine plaintiff's claim that the interviewers expressly told him that he would not be hired due to his age.

Plaintiff's challenges to the dismissal of his claims under the New York City Human Rights Law (Administrative Code of City of NY §8-107[1][a]) are not properly before this Court, as he had withdrawn those claims pursuant to a stipulation and filed an amended complaint asserting only causes of action under the New York State Human Rights Law (see Weinstein v City of New York, 103 AD3d 517, 517 [1st Dept 2013]). In any event, as an "instrumentality of the State," NYSIF is not subject to the provisions of the New York City Human Rights Law (Jattan v Queens Coll. Of City Univ. of N.Y., 64 AD3d 540, 542 [2d Dept 2009]; see also Ajoku v New York State Off. of Temporary & Disability Assistance, 198 AD3d 437, 437-438 [1st Dept 2021], lv denied 38 NY3d 908 [2022]).

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

ENTERED: April 18, 2023

Footnotes

Footnote 1: Defendants John/Jane Does I-XX have not appeared in this action or sought representation from the Attorney General. In any event, the complaint is devoid of facts attributing any discrimination to any anonymous or unnamed person. Thus, the complaint is dismissed as to John/Jane Does I-XX as well as NYSIF.

 

April 21, 2023

New York State Comptroller DiNapoli releases school and municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on April 20, 2023.

Links to material posted on the Internet highlighted in COLOR.

 

Chappaqua Central School District – Fixed Assets (Westchester County) District officials did not properly monitor and account for the district’s fixed assets. Officials maintained incomplete and inaccurate records and did not perform a physical inventory count since 2018. Of the 164 assets reviewed, 148, worth $220,708, were not recorded on the district’s original asset list and 18 assets worth $25,022 did not have asset tags, as required. Twenty-five disposed assets were not removed from the district’s original asset list. Also, officials could not determine whether four assets were disposed of (sold) or retired (obsolete). The district’s fixed asset policy did not require, and officials did not perform, a periodic inventory count or an unannounced asset count for district departments.

 

Williamsville Central School District – Financial Management (Erie County) The board and district officials did not properly manage the district’s fund balance and reserves. As a result, the district levied more taxes than needed to fund operations. The board and district officials consistently overestimated general fund appropriations from 2018-19 through 2021-22 by a total of $47 million and appropriated $22 million of fund balance that was not needed or used. Officials also adopted annual budgets during the same period that gave the impression that the district would have operating deficits totaling $38 million when it actually had operating surpluses totaling $40 million, for a difference totaling $78 million.

 

Stamford Central School District – Fund Balance Management (Delaware County) The board and district officials did not effectively manage the district’s fund balance. As a result, they were not transparent with taxpayers, and the district levied more taxes than needed to fund operations.  The board overestimated appropriations from the 2019-20 through 2021-22 fiscal years by an average of $1.4 million (14%) and planned to use fund balance to cover operating deficits when the district realized operating surpluses. Surplus fund balance exceeded the 4% statutory limit in two of the last three fiscal years by approximately $700,000 (6.8 percentage points) and $1.9 million (18.7 percentage points). Four of the district’s 11 reserves were not reasonably funded, or used to pay related expenditures, during the last three fiscal years. For example, the retirement contributions for employees reserve balance of $602,749 was sufficient to cover expenditures for five years.

 

Bayport-Bluepoint Union Free School District – Nonstudent Network User Accounts (Suffolk County) District officials did not establish adequate network controls for nonstudent user accounts to help prevent unauthorized access. As a result, the district has an increased risk of unauthorized access to and use of the district network and potential loss of important data. In addition to sensitive information technology (IT) control weaknesses that were confidentially communicated to officials, auditors found the database coordinator did not disable 281 nonstudent network user accounts that are unneeded or unnecessary to prevent unauthorized access and use.

 

Village of Suffern – Budget Review (Rockland County) Based on the results of our review, auditors found that the significant revenue and expenditure projections in the 2023-24 proposed budget were reasonable. Estimates for metered water revenues and sewer rent revenues appear overestimated and should be reviewed by the board. The village’s tentative budget includes a tax levy of $12,090,011, which is within the limit established by law.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.  

 

April 20, 2023

Qualified immunity claimed by governmental officials in class action brought in federal court

Qualified immunity shields government officials from liability for money damages for violation of a right under federal law if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

This ruling by the U.S. Circuit Court of Appeals, Second Circuit, addresses claims by government officials of their "entitlement to qualified immunity" in the underlying litigation. 

Following a discussion the Doctrine of Qualified Immunity and then reviewing the plaintiff's claims of violations of his rights under the Eighth and Fourteenth Amendments of the Constitution of the United State, the Circuit Court of Appeals:

1. Affirmed the district court's denial of the government officials' motion for judgment on the plaintiff's pleadings concerning his Fourteenth Amendment claim;

2. Reversed the district court's denial of the government officials' motion for judgment on the plaintiff's pleadings concerning his Eighth Amendment claim; and 

3. Remanded the matter to the district court "for further proceedings."

Click HERE to access the text of Circuit Court's decision posted on the Internet.


 

New Jersey may unilaterally withdraw from the New York-New Jersey Waterfront Commission Compact

The Waterfront Commission Compact established a bi-state agency known as the Waterfront Commission of New York Harbor New York and New Jersey in 1953, consistent with the Compact Clause of the Constitution, pursuant to which the States delegated their sovereign authority to conduct regulatory and law-enforcement activities at the Port. 

The Compact did not address each State’s power to withdraw from the Compact. 

In 2018, New Jersey sought to unilaterally withdraw from the Compact, over New York’s opposition. New York filed a bill of complaint in the Supreme Court of the United States

The parties then filed cross-motions for judgment on the pleadings, with the United States supporting New Jersey as amicus curiae.

Held: The Supreme Court ruled New Jersey may unilaterally withdraw from the Waterfront Commission Compact notwithstanding New York’s opposition.

Click HERE to access the Supreme Court's decision and the Syllabus of the ruling. 

N.B. The Syllabus is not part of the opinion of the Court. It is prepared by the Reporter of Decisions for the convenience of the reader.

 

April 19, 2023

Start Your Career in Public Service in New York State as a Correction Officer

The New York State Department of Civil Service announced the State and 40 county civil service agencies are currently offering online civil service examinations for appointment to positions of Correction Officer.

Applicants May Apply to Take the Local Examinations for Appointment to Local Correction Officer Positions Through May 12, 2023; The Online Examination Must be Completed by June 30, 2023.

New York State Currently Offers the Online Examination for Appointment to State Correction Officer Positions with Applications Being Accepted Until Further Notice.

For more information and to access the online examination, please click here.

 

April 18, 2023

Excessive lateness deemed a violation of the employer's time and leave policies

New York City Office of Administrative Trials and Hearings Administrative Law Judge Julia H. Lee recommended a 5-day suspension for a procurement specialist charged with excessive lateness.

The employee was found guilty of being late to work on 40 separate occasions over a period of eight months, totaling 32 hours and 40 minutes.

ALJ Lee rejected the employee’s argument that he was not late on these occasions because he received supervisory approval to charge his lateness to compensatory time. Judge Lee opined that that a long-time employee is expected to abide by the agency’s time and leave policies.

The ALJ, however, found that the employee's misconduct was mitigated by the employee’s 40-year employment with no prior disciplinary history since 1989, recommended a 5-day suspension without pay instead of the 10-day suspension without pay proposed by the employer.

The text of the ALJ's decision is posted on the Internet at: https://archive.citylaw.org/wp-content/uploads/sites/17/oath/22_cases/22-217.pdf

 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this ebook 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. 

 

April 17, 2023

State Comptroller DiNapoli Releases School & Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on April 12, 2023.

Links to material posted on the Internet highlighted in COLOR.

Village of Stamford – Claims Audit (Delaware County)

The board did not effectively audit claims prior to payment. As a result, disbursements were made for unsupported and improper claims. During the audit period, the board approved 890 claims totaling $8.2 million. Of the 200 claims totaling $1 million that were examined, 78 claims totaling $195,545 did not have support that the purchases complied with competitive bidding requirements or the village’s procurement policy, five claims totaling $1,334 included food and alcohol purchases and one claim totaling $700 did not have an itemized receipt and did not follow procurement guidelines. In addition, six claims totaling $637 did not have appropriate support, such as an itemized receipt or invoice. Lastly, credit card claims totaling $62,404 were improperly paid before board audit.

 

Village of Stamford – Pool Capital Project Planning and Monitoring (Delaware County)

The board did not transparently plan or sufficiently monitor the project. As a result, total costs exceeded grant revenues by $256,302 and contributed to the declining fund balance in the village’s general fund. The board did not prepare a project budget or ensure that a separate capital projects fund was set up to record project revenues and expenditures. The board also did not ensure the project was monitored and change orders were reviewed and approved, nor did it competitively procure project contracts and expenditures.

 

Village of Waverly – Parks and Recreation Department Financial Activities (Tioga County)

Village officials did not establish adequate controls over the department’s financial activities, resulting in $16,525 in unaccounted for collections. Cash receipt processes and oversight were inadequate and key duties were not segregated. In addition, collection, receipting and recordkeeping procedures were inadequate. The department hosted 15 tournaments and held nine fundraisers. However, no money was deposited for 11 of the tournaments and two of the fundraisers. Registration forms for 26 of 36 sports leagues were not maintained. The former director awarded scholarships (i.e., waived registration fees) without any guidelines, board oversight or approval, and also inappropriately used village bank accounts for non-village activities. As a result of the audit and investigation, the former director was arrested and pleaded guilty in December 2022 to official misconduct. As part of his plea, he resigned from his position and was sentenced to a one-year conditional discharge and paid the full restitution of $16,525.

 

Wyandanch Union Free School District – Budget Review (Suffolk County)

Based on the results of the review, auditors found that the revenue and expenditure projections in the 2023-24 proposed budget are reasonable. However, auditors also found that the district’s proposed budget includes approximately $11.3 million in health insurance appropriations; this appropriation is $3.4 million, or 43%, more than the $7.9 million projected expenditure for 2022-23 and $3.9 million, or 54%, more than the $7.4 million average health insurance expenditure incurred during the last five years. The district’s proposed budget complies with the tax levy limit.


Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Curing certain procedural omissions by the plaintiff and the plaintiff's alleged failure to state the merits of certain of her claims

Plaintiff [Petitioner] appealed the judgment of the United States District Court dismissing all her claims against the Defendants [School District]. Petitioner had filed claims alleging unlawful discrimination within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment, as made actionable by 42 U.S.C. §1983.

As to certain procedural issues, the Circuit Court of Appeals, Second Circuit, said it had concluded that although the School District has been properly served with the summons and complaint, Petitioner had failed to demonstrate proper service of her complaint upon two named School District employees. The court also agreed with the district court that Petitioner had failed to exhaust that portion of her Title VII claim related to alleged adverse employment actions in May 2019.

Addressing the merits of Petitioner's action, the Circuit Court ruled that the district court had erred in holding that the Petitioner's First Amended Complaint failed to state a plausible claim under Title VII or the Equal Protection Clause.

Accordingly, the Circuit Court affirmed the district court’s dismissal of Petitioner's Title VII complaint "to the extent the claim is based on alleged adverse employment actions in May 2019" but then vacated the district court’s judgment to the extent it dismissed Petitioner's Section 1983 claim and the remainder of Petitioner's Title VII claim.

The Circuit Court then remanded the matter to the district court for:

1. Further proceedings consistent with its opinion; and

2. A determination by the district court as to whether Petitioner should be provided with
"an extension of time to effectuate proper service of process" on the two employees of the School District referred to above.

Click HERE to access the decision of the Circuit Court of Appeals.

CAUTION

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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