May 31, 2023

Applying the "special errand" exception in adjudicating an application for Workers' Compensation benefits

A detective sergeant [Detective Sergeant], while on "standby-status", was en route to the precinct using his personal vehicle to travel to the precinct to, as required, secure a police vehicle to use to travel to a crime scene. Stopped at a traffic light, Detective Sergeant's vehicle was struck from behind by another vehicle, resulting in Detective Sergeant sustaining injuries.

Detective Sergeant's claim for workers' compensation benefits was controverted by his self-insured employer and its third-party administrator [Employer]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] found that the accident arose out of and in the course of Detective Sergeant's employment. Employer appealed and the Workers' Compensation Board [Board] reversed the decision of the WCLJ and disallowed the claim, finding that Detective Sergeant "was not within the scope of his employment while traveling to work and that the special errand exception did not apply."

Detective Sergeant appealed and the Appellate Division, citing Workers' Compensation Law §10[1] and earlier court decisions, reversed the Board's ruling, explaining "An injury sustained by an employee is compensable under the Workers' Compensation Law if it "aris[es] out of and in the course of the employment".  Further, said the court, "[g]iven the remedial nature of the Workers' Compensation Law, [this court has] consistently construed this requirement liberally[] in order to effectuate the economic and humanitarian objectives of the act", citing Matter of Lemon v New York City Tr. Auth., 72 NY2d 324.

Conceding that typically injuries "incurred while commuting to work are generally not covered because the risks inherent in traveling to and from work relate to the employment only in the most marginal sense", the Appellant Division ruled, as relevant here, "[t]he 'special errand' exception [rule] considers an employee to be acting within the scope of employment where, at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel''.

At the Workers' Compensation hearing, there was testimony from the Employer's witness that Detective Sergeant's shift and overtime pay did not begin until Detective Sergeant, then on "stand-by" status, "arrived at the police station and checked out a police vehicle." Such fact, said the court, even if true, is not dispositive of whether the special errand exception applies. Irrespective of when Detective Sergeant's overtime pay began, the court held that as the record reflects that Detective Sergeant was contacted at 4:15 a.m., at which time Detective Sergeant was engaged in a special errand, as he was then required to report to work early in order to pick up a police vehicle so that he could proceed directly to the crime scene in that vehicle.

Although Detective Sergeant testified that he traveled to the police station along his usual geographical route, the Appellate Division noted that "the work-related activity that Detective Sergeant was encouraged/required by his employer to do and performed for the employer's benefit upon being called in early while on standby" required Detective Sergeant to "alter[ ] the usual . . . temporal scheme of travel, thereby altering the risks to which [Detective Sergeant was] usually exposed during normal travel."

Although the Board identified the correct standard articulated by the Court of Appeals, the Appellate Division concluded that the Board had misapplied "the special errand exception by overlooking the altered temporal scheme of [Detective Sergeant's] travel and significance of the work-related activity performed by claimant for the Employer's benefit upon being contacted by the Employer while on standby."

The Appellate Division reversed the Board's decision and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision."

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


May 30, 2023

Preliminary injunction bars the City of New York from continuing to collect co-payments from certain health insurance plan participants and beneficiaries

Supreme Court New York County Justice Lyle E. Frank issued a preliminary injunction preventing the City of New York continuing to require certain beneficiaries of Senior Care, a Medicare supplement plan offered by the City of New York to its current and retired employees, and their eligible dependents, to collect $15 co-payments then being charged.

The City appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division opined:

1. "Supreme Court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action," citing LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, [2d Circuit 2004];  


2. "Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits".

The Appellate Division's decision is set out below:


Bianculli v City of New York Off. of Labor Relations

2023 NY Slip Op 02822

Decided on May 25, 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: May 25, 2023
Before: Webber, J.P., Kern, Oing, Scarpulla, Rodriguez, JJ.

Index No. 160234/22 Appeal No. 291 Case No. 2023-00232

[*1]MargaretAnn Bianculli etc. et al., Plaintiffs-Respondents,


The City of New York Office of Labor Relations et al., Defendants-Appellants.

Pillsbury Winthrop Shaw Pittman LLP, New York (James M. Catterson of counsel), for EmblemHealth, Inc., and Group Health Incorporated (GHI), appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Chole K. Moon of counsel), for The City of New York Office of Labor Relations and The City of New York, appellants.

Walden Macht & Haran LLP, New York (Jacob S. Gardener of counsel), and Pollack Cohen LLP, New York (Steve Cohen of counsel), for respondents.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered January 11, 2023, which granted plaintiffs' CPLR 6301 motion for an order preliminarily enjoining defendants from charging co-payments to Senior Care health insurance plan beneficiaries, unanimously affirmed, without costs.

This action relates to $15 co-payments charged to beneficiaries of Senior Care, a Medicare supplement plan offered by defendant the City of New York to its current and retired employees and their dependents, partially administered by defendant Group Health Incorporated (GHI), a subsidiary of defendant EmblemHealth, Inc. (together, Emblem).

We decline to disturb the preliminary injunction. Contrary to defendants' contentions, the injunction was prohibitory, not mandatory, and thus, was not subject to a heightened standard. The injunction prohibits defendants from continuing to collect co-payments and does not mandate specific conduct by them (State of New York v Town of Haverstraw, 219 AD2d 64, 65-66 [2d Dept 1996]; see generally Second on Second CafÉ, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009]).

Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits. The court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action (e.g. LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, 55-56 [2d Cir 2004]). Although most of the affiants averring to the nature of the harm were not named plaintiffs, defendants do not dispute that plaintiffs are likely to obtain class certification, which is supported by allegations in the complaint, and they do not dispute that the affiants would be members of the class (see id. at 57). Absent any contrary argument by defendants on the motion, it was reasonable for the court to conclude that the affiants were representative of the putative class (see id. at 58).

The court providently determined that the balance of equities favored plaintiffs. Although plaintiffs delayed in filing this action, defendants' showings regarding hardship were conclusory and limited to routine administrative actions, and not as burdensome as the hardship to plaintiffs if the injunction were denied.

We have considered defendants' remaining arguments and find them unavailing.


ENTERED: May 25, 2023


May 27, 2023

New York State Comptroller DiNapoli releases municipal and other audits

New York State Comptroller Thomas P. DiNapoli announced the audits and reports listed below were issued were issued during the week ending May 26, 2023

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


Town of Preble – Non-Payroll Disbursements (Cortland County) The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, there is an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Specifically, town officials did not segregate the bookkeeper’s duties or implement critical controls. In addition, the board could improve its annual audit of the supervisor’s records and reports.


Town of Greig – Long-Term Planning (Lewis County) The board did not establish long-term financial and capital plans or fund balance and reserve policies. Therefore, the board lacks important tools to project current and future operating and capital needs and has not outlined its intentions for financing future capital improvements or equipment purchases. Auditors reviewed the town’s capital assets and found that 15 of the 27 pieces of major highway equipment were beyond their optimal useful life and some of the equipment had observable damage. A lack of properly functioning highway equipment contributed to the town being unable to use more than $73,000 of available state funding as of the end of 2021.


Village of Sidney – Financial Activities (Delaware County) The board and clerk-treasurer did not properly monitor selected financial activities. As a result, total general fund balance for fiscal year-end 2021-22 was overstated by $571,719, the transparency of village financial operations was compromised, and taxpayers were not assured the board was effectively monitoring airport operations and financial condition. For the past five years, the total airport operating deficits exceeded $293,000. In addition, delinquent taxes totaling $575,182 date back to fiscal year 2011-12 and officials cannot identify which taxpayers owe $60,452 of that total. General fund assets were also overstated by $288,510 and liabilities by $434,929 in fiscal year 2021-22. Lastly, two capital project funds and three community development funds have negative fund balances that may require a transfer from the general fund to pay remaining liabilities. About $700,000 of the village’s $1 million fund balance may be needed to satisfy the liabilities.


City of Yonkers – Budget Review (Westchester County) Some revenue and expenditure projections in the proposed budget are unreasonable. Furthermore, officials’ continued practice of using debt to pay for recurring costs is imprudent. The review found the city’s proposed budget continues to rely on $112.3 million in nonrecurring revenue, such as appropriated fund balance, one-time state funding and the sale of property to finance its operations. In addition, the budget includes revenue estimates for income tax surcharge, sales and use tax as well as city and state mortgage tax that may not be achievable. The budget also includes $8.5 million for contractual settlements; five of the city’s eight union collective bargaining agreements have expired or will expire soon and the city could face additional expenditures when these contracts are settled.

N.B. The city’s proposed budget also includes the Yonkers Public School District’s budget. The review found the district’s proposed budget is structurally unbalanced with a budget gap of at least $33 million and overestimates state funding for basic aid by approximately $1.2 million. The budget also relies on $12 million of additional state aid for services and expenditures which may not be available in future years and does not include a specific appropriation for contractual settlements.


New York State Throughway Authority

New York State Thruway Authority: Selected Aspects of Toll Collections

Related Report
Assessment of NYS Thruway Authority Finances and Proposed Toll Increases

"The state’s Thruway Authority has to do a better job of identifying, billing, and collecting tolls and related fees, including $276.3 million it has a collection agency seeking as of March 2023", according to a new audit from State Comptroller Thomas P. DiNapoli.

"This audit has identified ways in which the Thruway can improve its collection of tolls and fees,” DiNapoli said. “Based on the Authority’s response, I’m hopeful action will be taken to implement our recommendations to maximize revenue for the Thruway.”

Tolls and related fees  make up more than 90% of the Thruway’s revenue. Ninety percent of toll revenues are from users of E-ZPass with the rest through Tolls by Mail. In 2021, the Thruway collected $804 million from tolls and related fees. Nearly half (43%) of the unpaid tolls and related fees, $119.3 million, is owed by out-of-state drivers. A substantial portion of that money is from vehicles registered in New Jersey ($34.2 million) and Connecticut ($16.7 million).

Vehicle owners get a warning if their E-ZPass account has a negative balance for over 30 days. If no payment is made in the next 30 days, the account is canceled and a $25 fee is charged. If the E-ZPass device isn’t returned another $16 fee is added. Tolls by Mail that aren’t paid in 30 days trigger a warning notice and a $5 fine. If it’s still not paid 30 days later, it is in violation and a $50 fee is added to the invoice. Thirty days after the violation notice, the Thruway can send it to a collection agency.

Lapse in Collections
During the audit period, the Thruway used two collection agencies. When the first vendor’s contract expired Sept. 15, 2020, it returned the uncollected accounts totaling $430 million to the Thruway. This included $14 million in negative balances and $416 million in tolls and related fees.

The second collection agency’s contract took effect January 2021, but the Thruway did not send it any accounts to collect until July, more than nine months after the last contract had expired. Thruway officials said the new vendor needed time to reprogram its system to incorporate revisions in toll violations and that, while there was no collection agency during this time, it continued to collect overdue payment through its in-house customer service employees.

Registration Suspension Program
The Thruway can ask the Department of Motor Vehicles (DMV) to suspend the registration of any in-state passenger vehicles that do not pay tolls, fees, or other charges, if they have three or more violations in five years, and for commercial vehicles, if they owe $200 or more over five years. The Authority has a reciprocity agreement with Massachusetts — it’s only such agreement — to request registration suspensions there.

The Thruway halted the suspension program in January 2018 as cashless tolling was being introduced following negative press and public concerns related to system problems including erroneous billings and excessive fees It resumed the program four-and-a-half years later in July 2022, but has made very limited use of it. Separate from the accounts with the Thruway’s collection agency, auditors found 257,917 past due accounts, owing $288.4 million, that were eligible for suspension.

Of these, 49,740 customers were persistent violators that had outstanding balances every year going back to 2017. Since restarting the program, however, the Thruway has referred 60 or fewer plates per week for suspension and had just two employees assigned to the program.

Rejected License Plate Images
Auditors also found  fault with the Thruway’s  identification of license plates from the images it takes. The audit sampled 161 images that were rejected and found 11% were identifiable and billable. Auditors also estimated the Thruway missed out on billing an additional $7.2 million in tolls last year based on the number of license plate images that were rejected for reasons, such as being too dark or too bright, that were within the Thruway’s ability to fix.

DiNapoli made several recommendations to the Thruway for improving its identifying, billing and collecting tolls and related revenue to the Thruway, including that it:

  • Ensure that there is a smooth transition in any change of collection vendors to avoid gaps in service.
  • Establish procedures for dismissing violation fees, including the selection criteria that explain why they are being dismissed and the basis for the amounts.
  • Review accounts that are eligible to have their vehicle registration suspended to determine where collection efforts will have the best results, and assess the feasibility of entering into registration suspension agreements with more states in addition to Massachusetts.
  • Revise the methodology for selecting accounts to refer to DMV for suspension to target persistent violators and accounts nearing the 6-year statute of limitations.
  • Ensure that all images rejected by the automated process that are identifiable manually are billed.
  • Monitor trends in the incidences of rejected images and take appropriate corrective actions.

The Comptroller’s Office has another audit of the Thruway Authority’s cashless tolling program that is currently in progress, related to billing accuracy and the Authority’s Office of the Toll Payer Advocate’s handling of consumer complaints.

The Authority agreed with three of the audit’s 11 recommendations. It did not state whether it agreed or disagreed with the others, but indicated an understanding in principle. Its full response is available in the audit.

New York State Thruway Authority: Selected Aspects of Toll Collections

Related Report
Assessment of NYS Thruway Authority Finances and Proposed Toll Increases



May 26, 2023

Links to NYPPL summaries of selected decisions alleging unlawful discrimination in violation of state and federal civil rights laws

Selected summaries of decisions alleging unlawful discrimination in violation of state and, or, federal civil rights laws posted by New York Public Personnel Law.

Click on text to access the summary.

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented


A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process


A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)


A school board must comply with its own rules and regulations, which have the force and effect of law


An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries


An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination


An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct


An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"


Appeal pursuant to New York State's Dignity for All Students Act submitted to the Commissioner of Education


Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims


Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing


Applying the Doctrine of Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging unlawful discrimination


Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality


Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy


Arbitrator's award in a disciplinary arbitration of alleged sexual harassment charges vacated as violative of public policy


Basics in processing claims of unlawful discrimination and, or, unlawful retaliation


Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty


Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures


Complying with New York State mandatory sexual harassment training requirements


Constructive termination


Court dismissed employee's petition seeking reinstatement to her former employment in the absence of her showing "irreparable harm"


Courts annul appointing authority's termination of a probationary employee finding that the appointing authority failed to demonstrate a legitimate, nondiscriminatory purpose for probationer's termination


CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law


Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely


Determining the amount of an award by the Division of Human Rights following its finding that an employee suffered discriminatory retaliation


Determining the economic damage suffered by a victim of unlawful discrimination


Duty of fair representation


EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment


Electronic surveillance


Employee alleges employer ignored her sexually hostile work environment and the negligent supervision claims


Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability


Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits Matter of Ferro, 283 AD2d 828


Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence


Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits


Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination


Evaluating a defendant's motion for summary judgment in the course of Title VII litigation


Failure to allege any adverse employment action fatal to unlawful age discrimination complaint


Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint


Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition


Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board


Failure to file prehearing statements required by the reviewing agency’s rules held to constitute a “waiver of defenses”


Filing an employer application for involuntary ordinary disability retirement on behalf of the employee


From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News


Imposing a reasonable disciplinary penalty under the circumstances


Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination


Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay


Initiating litigation in federal court under a pseudonym


It is legally possible to find "accidental results" flowing from "intentional causes" for the purposes of indemnification pursuant to the terms of an insurance policy


Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education


Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits


Litigating allegations of same-sex sexual harassment


New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting


New York State's Human Rights Law bars discrimination against heterosexual individuals


Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings


Postings on Employment Law Notes


Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints


Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Qualified privilege may be claimed in defending statements made for a supervisory purpose in an employment context alleged to be defamatory


Quid pro quo sexual harassment


Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer


Religious Accommodations in the Workplace


Representation and indemnification of public officers and employees sued in connection with official duties


Requirements for stating a justiciable claim alleging the employer intentionally inflicted emotional distress on the distressed employee


Responsibility of employers in cases of sexual harassment


Retaliatory dismissal


Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law


Second Circuit rules failure to investigate discrimination complaint not adverse employment action


Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender


Settlement of disciplinary arbitration must be in writing to be enforced by a court


Sexual harassment and discrimination

Sexual harassment complaints


Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint


Signing a general release of all claims accruing up to the settlement date


Social Media - its use by employers in pre-employment, employment and post-employment situations


Students sue school district alleging school district administrators violated their civil rights


Syllabus for the United States Supreme Court's ruling in Bostock v Clayton County, Georgia addressing unlawful discrimination targeting gay and transgender employees


Teacher claims his harassment by students violates Title VII and the Civil Rights Act


Teacher the target of sexual harassment complaints


Termination for disruptive behavior claimed to violate the State’s Human Rights Law


Termination for violating workplace rules defeats a claim for unemployment insurance benefits


Test used by courts to resolve a former employee's constructive dismissal claim


The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation


The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable


The essentials elements of processing a complaint alleging retaliation constituting unlawful discrimination


The Plausibility Standard


Unlawful discrimination on the basis of gender identity


Using e-mail as evidence in disciplinary actions


Workfare with a public agency not public employment


May 25, 2023

Seeking credit for non-police service toward eligibility for Police Pension Fund retirement benefits

At issue here is whether Tier 3 police officers in the New York City Police Pension Fund (PPF) who otherwise might be eligible for retirement credit under the statutory provisions discussed in the decision may use those provisions to apply prior non-police service toward their eligibility for retirement

The Court of Appeals held that they may not. The court noted that plain language of Retirement and Social Security Law §513(c)(2) limits eligible prior service for those officers to police service.

Accordingly the Court of Appeals concluded the proceeding should be dismissed.

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

Negotiating "for cause" termination protection for officers and employees serving in positions in the Exempt Class

Certain civil service positions in the classified service are placed in the "exempt" class reflecting the duties of the position are of a confidential nature and requires personal qualities that cannot practicably be tested by an examination. Subject to certain exceptions set out in §75.1(b) of the Civil Service Law, incumbents of positions in the Exempt Class are terminable at will. 

The issue before the court: A challenge to a provision in the relevant collective bargaining agreement that, in the words of the Court of Appeals, "purports to provide for-cause termination protection to certain exempt class employees."*

The Court held that provision in the agreement unenforceable to the extent it granted such protections to officers and employees in the Exempt Class except as otherwise provided by §75.1(b) of the Civil Service Law.

*Although not all exempt class employees are officers of the entity, all exempt class officers of the entity are employees of the entity.

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

Accidental Disability Retirement application rejected


Supreme Court denied Plaintiff's petition to vacate a determination of Respondents, which denied Plaintiff's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78. The Court of Appeals unanimously affirmed the lower court's ruling, without costs.

The Court of Appeals noted this was the third CPLR Article 78 proceeding brought by Plaintiff' seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period. The Court of Appeals had affirmed the denial of those benefits by Respondents in connection with the evidence submitted on her first two applications, Matter of Salerno v Kelly, 139 AD3d 516.

In support of her third attempt, Plaintiff submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with Plaintiff at the offices of the Internal Affairs Bureau. However, the location so identified "was outside the qualifying area." 

Accordingly, said the Court, Respondents had a rational basis for denying Plaintiff's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by Plaintiff indicating that she worked at IAB and/or command and control during the relevant period.

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

May 24, 2023

Applying the ""inherent risk" principle in evaluating an employee's application for accidental disability retirement benefits

The Comptroller denied a State Trooper's [Petitioner] application for accidental disability retirement benefits. Petitioner had filed an application for accidental disability retirement alleging that he was permanently disabled due to, among other things, posttraumatic stress disorder resulting from an incident in which Petitioner shot a suspect who was driving a car at a high rate of speed towards the Petitioner.

Citing Matter of McGoey v DiNapoli, 194 AD3d 1296, the Appellate Division noted that the applicant, here the Petitioner, bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's determination on that point will be sustained "if supported by substantial evidence in the record as a whole substantial evidence."

In this instance, said the court, substantial evidence supports the Comptroller's determination that Petitioner's use of deadly force to protect himself from imminent danger, "although not typical, and certainly a traumatic experience, was inherent in his duties and training."

Applying the "inherent risk" principles set out by the Court of Appeals in Kelly v DiNapoli, 30 NY3d 674 and applied in Matter of Kowal v DiNapoli, 145 AD3d 1152, the Appellate Division opined that the Comptroller's determination that the incident at issue "did not constitute an accident within the meaning of Retirement and Social Security Law §63-bb will not be disturbed."

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


May 23, 2023

Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023

S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers


S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston


S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits


S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York


S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino


S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service


S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick


S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees


S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller


S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations


S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations


S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment


S6861 by Robert Jackson 31st Senate District : Would provides for the automatic enrollment of employees of the City of New York eligible to join the New York City Board of Education Retirement System other than individuals provisional appointed


S6862 by Robert Jackson 31st Senate District : Provides for a line of duty presumption for disabilities of fire alarm dispatchers in certain cities


 S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members



Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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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