Applicant for accidental disability retirement benefits has the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law

In this action the Appellate Division was asked to review a determination of the New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer, [Petitioner] applied for accidental disability retirement benefits, alleging that he was permanently incapacitated as the result of having fallen while inspecting equipment at the Employer's facility where he worked. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

In this action the Appellate Division is asked to review a determination of New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

The Appellate Division affirmed the findings of the Retirement System and the Comptroller, observing "As the applicant, Petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and [the Comptroller's] determination in this regard will be upheld if supported by substantial evidence".

Citing Matter of Yurko v DiNapoli, 122 AD3d 1047, and granting deference to the Comptroller's credibility determinations and given inconsistencies in Petitioner's testimony as to what he was doing at the time he fell and regarding the nature of the substance he claims caused his fall, the Appellate Division opined "substantial evidence supports the Comptroller's determination that Petitioner's injuries occurred in the ordinary course of his employment duties and that he failed to establish that his injury was the result of an accident, rather than his own misstep".

Click HERE to access the Appellate Division's decision.

Selected items on blogs posted during the week ending March 28, 2025

Sui Generis-a New York Law Blog, has posted a new item. Below in the URL to read more: 

Be curious and adapt–or be left behind 

2 More States Ban DeepSeek  From State Devices, Citing Risks Alabama and Oklahoma are the latest states to block AI tools with overseas ties from being used on government devices. Concerns include a lack of security as well as data collection and storage practices. READ MORE   Brisk Teaching Raises $15M for Classroom AI Technology As artificial intelligence sweeps through schools, colleges and universities, government technology vendors and investors are betting big on these new tools. Brisk touts its tech as helping to ease teacher shortages. READ MORE   Future-Proofing Justice: AI, Cloud and New Court Technologies While artificial intelligence and SaaS may sometimes seem like buzzwords, they're necessities for court systems that want to continue to provide accessible and efficient judicial services. READ MORE   Plan to Power Massive Data Center in Louisiana Faces Scrutiny Entergy's plan to power Meta's $10 billion AI data center in northeast Louisiana faced new scrutiny on Tuesday, with advocacy groups arguing before a judge that the tech giant should answer more questions. READ MORE   Pennsylvania County to Purchase Electronic Poll Books Somerset County is expected to use a new electronic poll book process during this year’s general election in November after county commissioners voted unanimously to purchase an ExpressPoll system. READ MORE

Streamline operations, free up resources for a safer community   Smarter technologies to streamline operations, reduce costs, and free up resources for what matters most. Get your guide A Big Step Toward Protecting Kids From App Stores Utah’s new legislation addresses parents’ concerns, doesn’t tax state or local resources for enforcement, and is popular with the public. Other states should see it as a model. READ MORE   More States Reject Fear-Based AI Regulation The course of legislation in Virginia and Texas suggests a way forward in regulating AI without stifling innovation. READ MORE   Five Ways a Funding Overhaul Transformed Texas Community Colleges Some schools have offered free tuition, grown dual credit programs or helped students’ credits transfer when they move on to four-year schools. READ MORE   City Hiring in Atlanta Now Requires Mayor’s Office Approval Departments have to receive permission to replace workers. The city is facing a $20 million shortfall driven by overtime costs for public safety. READ MORE

Local Government Audits posted on the Internet by New York State Comptroller Thomas P. DiNapoli

On March 19, 2025, New York State Comptroller Thomas P. DiNapoli issued the following local government audits:

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

Village of Herkimer – Clerk-Treasurer’s Records and Reports (Herkimer County) The current and former clerk-treasurers did not maintain complete, accurate or up-to-date financial records. As a result, the board lacked the financial information necessary to properly monitor and manage village finances. The clerk-treasurers did not properly record financial activity totaling $10.5 million related to bank transfers, payroll, real property taxes and cash receipts and disbursements. They did not perform bank reconciliations, allowing discrepancies between general ledger cash balances and adjusted bank balances to remain unidentified and unresolved. They did not provide monthly balance sheet reports to the board or file Annual Financial Reports with the Office of the State Comptroller, as required by law. The board did not annually audit the clerk-treasurers’ records, as required by law.

Town of Ripley – Town Clerk Collections (Chautauqua County) The town clerk did not always record, deposit, remit and report all collections in a timely and accurate manner. Because of this, there was an increased risk for money to be lost or used for inappropriate purposes. The longer collections remain unremitted, the longer they are not available for town operations. The audit determined the clerk did not deposit 2023 tax collections totaling approximately $882,000 within 24 hours or record 2023 tax collections totaling approximately $560,000 daily as required. The board did not conduct an annual audit of the clerk’s records, as required.

Town of Elbridge – Payroll and Leave Accruals (Onondaga County) Town officials did not ensure that all payroll payments were accurate, supported and authorized and that leave accrual records were maintained accurately. Auditors determined that the town supervisor approved payroll without having any information regarding the numbers of hours that employees worked, the leave time that they used or their leave accrual balances. Also, staff were unaware of all the provisions of the collective bargaining agreement and the town’s employee handbook that affect leave accrual records. The handbook did not require salaried employees to prepare time sheets or timecards. As a result, seven full-time employees with 2024 salaries totaling $238,569 did not prepare time records to document their days and hours worked and leave accruals that they used.

Wallace Volunteer Fire Department, Inc. – Board Oversight (Steuben County) The department officers and members did not enforce financial provisions outlined in the department’s constitution and bylaws or adopt adequate policies and procedures to provide effective financial oversight of operations. The membership did not elect a five-member board or financial secretary and the president did not appoint members to the auditing committee to assist with financial oversight. The treasurer did not submit various annual reports as required, and did not have a system for recording all receipts and disbursements. The president had sole control of the foreign fire insurance bank account instead of the treasurer, as required by law. These actions result in an increased risk of theft and waste of department resources.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review assessed the town’s progress in implementing recommendations in the town’s prior audit report (2019M-189), released in January 2020. The audit found the supervisor did not maintain accurate financial records. The audit included seven recommendations to help improve the quality of financial records and reports. The audit follow-up found that town officials have not taken corrective action, as none of the seven audit recommendations were implemented.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review examined the town’s progress in acting on recommendations from another audit report examining the town’s fund balance management (2019M-221) released in January 2020. The prior audit determined the board did not properly manage fund balance, as the town-wide (TW) general fund and TW highway fund had deficit unrestricted fund balances. The prior audit also determined that the board did not develop and adopt comprehensive written multiyear financial and capital plans and written fund balance and reserve fund policies to help guide the budget development process. The audit included nine recommendations to help improve the town’s financial condition and financial reporting. It appears that the town has not implemented sufficient corrective action. The audit follow-up found that of the nine audit recommendations, only two were fully implemented and seven were not implemented.

Administrative Law Judge recommends a 45 day suspension without pay be imposed on an employee found guilty of storing and discharging an air rifle in a City of New York's building

New York City Office of Administrative Hearings and Trials Administrative Law Judge [ALJ] Faye Lewis recommended a 45-day suspension without pay as the penalty to be imposed on custodial engineer [Respondent] found guilty of storing an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes. 

The ALJ found Respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that Respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct. 

The ALJ dismissed the remaining charges against Respondent for storing alcohol and parking his motorcycle on petitioner’s property because the Petitioner [Employer] failed to produce sufficient evidence linking Respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct. 

Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected Employer’s argument that Respondent should be terminated for this misconduct, noting that there was significant mitigation underlying Respondent’s actions and that he has had a lengthy tenure with the Employer with high performance evaluations and no history of discipline. 

Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served. 

Click HERE to access Judge Lewis' decision posted on the Internet.

Enforcing the terms and conditions set out in a collective bargaining agreement beyond the grievance process.

State and municipal public employees in New York State have the right to negotiate terms and conditions of employment which are typically set out in a collective bargaining agreement [CBA]* pursuant to Article 14 of the Civil Service Law [typically referred to as "The Taylor Law]. Such individuals may also have rights provided by statute or regulation. 

Typically the collective bargaining agreement contains a mandatory grievance process the CBA and rarely provides employees with the authority to enforce the terms and conditions set out in the CBA beyond the negotiated grievance process.*

In this decision the Appellate Division pointed out that "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed grievance procedure and initiate litigation involving a  contract issue directly against the employer".

Citing Matter of Obot [New York State Dept. of Correctional Services], 89 NY2d 883, the Appellate Division noted that allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an Article 78 proceeding as "the proper mechanism is initiating a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union". In the words of the Appellate Division: As the employee's claim arises solely under the CBA, the employee was also required to follow the path laid out in the Appellate Division's decision in Ambach**

* On occasion such an agreement may issued in the form of a Memorandum of Understanding.

** Ed. Note: However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of administrative remedies is not required where so doing would constitute "an exercise in futility".

Click HERE to access the Appellate Division's decision.

Counting Provisional Service Towards Time-in-Title Requirements

The New York State Department of Civil Service has published General Information Bulletin 25-01, Provisional Service Counting Towards Time-in-Title Requirements for Promotion Once Permanently Appointed.

The text of General Information Bulletin 25-01 is posted on the Internet at GIB 25-01. 

A version of Bulletin 25-01 in PDF format is available for downloading at GIB 25-01 PDF.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm. N.B. Replies to this URL will not be read or answered.

The placement of unvaccinated COVID-19 bargaining unit members on leave without pay held not to be arbitrable

Supreme Court denied an employee organization's [Union] petition seeking to annul a determination by the New York City Board of Collective Bargaining [BCB] that a Union member's grievance was not arbitrable in part and dismissed this proceeding brought pursuant to CPLR Article 78.

Union had sought to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. 

BCB had determined that although certain issues asserted in the Union's petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay was not arbitrable.

The Appellate Division unanimously affirmed the Supreme Court's BCB's ruling without costs, opining that "BCB's finding regarding the arbitrability of issues relating to placement on Leave Without Pay [LWOP] was not arbitrary and capricious or contrary to law. The Appellate Division also rejected the Union's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the Collective Bargaining Agreement because they were placed on LWOP. 

The Appellate Division's decision is set out below:

Matter of Uniformed Firefighters Assn. of Greater N.Y. Local 94, IAFF, AFL-CIO v City of New York

2025 NY Slip Op 01596

Decided on March 18, 2025

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 18, 2025
Before: Moulton, J.P., Kennedy, Rodriguez, Pitt-Burke, O'Neill Levy, JJ.

Index No. 159305/22|Appeal No. 3929|Case No. 2024-01024|

[*1]In the Matter of Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO, Petitioner-Appellant,

v

The City of New York et al., Respondents-Respondents.

Certilman Balin Adler & Hyman, LLP, East Meadow (Paul S. Linzer and Jennifer A. Bentley of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for The City of New York and The Fire Department of the City of New York, respondents.

New York City of Collective Bargaining, New York (Brian Zapert of counsel), for the New York City Board of Collective Bargaining, respondent.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 16, 2024, which denied the petition to annul the September 28, 2022 determination of respondent The New York City Board of Collective Bargaining (BCB) that petitioner's grievance was not arbitrable in part, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This proceeding arises from the attempt by petitioner Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO (UFA), to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. As relevant to this appeal, the BCB found that although certain issues asserted in the petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay (LWOP) were not arbitrable. 

BCB's finding regarding the arbitrability of issues relating to placement on LWOP was not arbitrary and capricious or contrary to law (see CPLR 7803[3]; Administrative Code of City of NY § 12-309[a][3]); Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650, 656 [1996]; Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Under the two-pronged test to determine whether a dispute is arbitrable pursuant to Court of Appeals precedent, the BCB must first determine whether the parties may arbitrate the dispute by inquiring if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnston Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). If there is a prohibition, the inquiry ends and an arbitrator cannot act. If no prohibition exists, as was the case here, the BCB then examines the parties' collective bargaining agreement (CBA) to determine whether the parties in fact agreed to arbitrate the particular dispute (see id.; see also MacDonald, 87 NY2d at 655-656). The Board rationally found, under the second prong, that there was no "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 283 [2010][citation omitted]).

We reject petitioner's argument that its members who failed to comply with the citywide vaccine mandate were deprived of rights under the regulations of respondent the Fire Department of the City of New York (FDNY). The cited regulation, FDNY regulation § 17.5.1, simply requires employees who want permission to go on special leaves of absence to apply in writing and explain the reasons for their request. It does not prohibit the FDNY from imposing leave in other circumstances, such as where these members fail to satisfy a condition of employment, nor does it address the FDNY's ability [*2]to do so (see Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 42 NY3d 986, 990-991 [2024]).

We also reject petitioner's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the CBA because they were placed on LWOP. These members' failure to satisfy a condition of employment necessarily renders them unqualified for their position (see id.; Garland v New York City Fire Dept., 574 F Supp 3d 120, 129 [ED NY 2021]; see also We the Patriots USA, Inc. v Hochul, 17 F4th 266, 294 [2d Cir 2021], clarified 17 F4th 368 [2d Cir 2021], cert denied sub nom. Dr. A. v Hochul, — US &mdash, 142 S Ct 2569 [2022]). Therefore, it was not irrational for the Board to find that petitioner identified no right "to the continuation of contractual pay and benefits under these circumstances." On appeal, petitioner identifies no CBA provision that would allow its members to continue being paid for services not rendered upon their failure to satisfy a condition of employment (see e.g. Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York, 125 AD3d 475, 475-476 [1st Dept 2015]; Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [3d Dept 2005]).

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

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

ENTERED: March 18, 2025

Posted on the Internet by New York State Comptroller Thomas P. DiNapoli

Audit Recommends Improvements in Services for Survivors of Human Trafficking

The New York State Office of Temporary and Disability Assistance (OTDA) can take steps to improve its efforts to ensure survivors of human trafficking receive the services and assistance available to them, according to an audit released by Comptroller DiNapoli. The audit found that while programs exist to assist with shelter, medical and mental health care, and legal services, OTDA should do more to help eliminate barriers to assistance and support for victims.

Read More

NYC’s Solid Housing Growth at Risk as Permits Fall

New York City’s efforts to address its housing shortage have led to a growth in supply that outpaced that of the state, but a drop in permits suggests slower growth may be on the horizon, according to a report released by Comptroller DiNapoli. The report examines where new housing has been concentrated since 2010 and implications for growth in other areas of the city. 

Read More

Comptroller DiNapoli Announces Sale of $540 Million State of New York General Obligation Bonds

Comptroller DiNapoli announced the sale of New York State General Obligation (GO) Bonds totaling $539.6 million through competitive sale. Despite recent market volatility, strong investor interest in the state’s full-faith-and credit GO bonds resulted in favorable interest rates and produced savings for state taxpayers.

Read More

Former CFO Of St. Johnsville Volunteer Ambulance Corp. Arrested for Stealing Over $26,000

A former chief financial officer of the St. Johnsville Volunteer Ambulance Corp. was charged with stealing over $26,000 from the company, Comptroller DiNapoli, Montgomery County District Attorney Christina Pearson and New York State Police Superintendent Steven G. James announced. The defendant was charged with grand larceny in the third degree and forgery in the third degree.

Read More

Links to selected items posted on the Internet during the week ending March 22, 2025

New York State Appoints its First Chief AI Officer Shreya Amin has nearly 20 years of experience with data science and AI. She takes over as the state pursues new AI computing power and issues guidelines about the best use of artificial intelligence in the public sector. READ MORE Federal and State entities have posted guidelines addressing accessibility and diversity, equity and inclusion on the Internet.   The Offices of the Attorney General for the State of Illinois, the Commonwealth of Massachusetts, and the State of New York have posted a "joint guideline" on the Internet. Click on the URL below to access the guideline: https://ag.ny.gov/sites/default/files/publications/joint-guidance-re-school-programs-guidance-2025.pdf The United States Department of Education has posted its guidelines on the Internet as a letter addressed to "Dear Colleague". Click on the URL below to access the guideline:  https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf One Mission: Expand High-Speed Internet Across Rural America  Bringing broadband to every rural community takes dedication, investment, and innovation. See how construction crews make it happen in Every Last Mile.   Stream now: EveryLastMile.film

Appellate Division finds individual petitioners in this litigation were not entitled to retain a "physically taxing status" for the purpose determining retirement benefits

The Petitioners in this action challenged the New York City Employee Retirement System's cancellation of additional pension withdrawals, which it had been taking from the individual Petitioners' paychecks beginning prior to their promotions from position of Supervisor of Traffic Device Maintainers [STDM] to STDM Level II or STDM Level III, because their titles in their new positions were not titles included on the Official List of Physically Taxing Positions [OLPTP].

The Appellate Division held New York City's Office of Labor Relations' reclassification of the individual Petitioners' job titles to STDM Levels II and III, which were not titles included on the OLPTP, in 2012 [1] was not arbitrary and capricious and [2] that discontinuing the additional withdrawals was not erroneous. 

Matter of Croghan v Adams

2025 NY Slip Op 01285

Decided on March 06, 2025

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 06, 2025
Before: Kern, J.P., Mendez, Rodriguez, Pitt-Burke, Higgitt, JJ.

Index No. 157449/22|Appeal No. 3823|Case No. 2024-00714|

[*1]In the Matter of Robert Croghan et al., Petitioners-Appellants,

v

Eric L. Adams et al., Respondents-Respondents.

Law Offices of Leonard A. Shrier, P.C., New York (Leonard A. Shrier of counsel), for appellants.

Muriel Goode-Trufant, Corporation Counsel, New York (Amy McCamphill of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered January 3, 2024, which denied the petition seeking, among other things, to annul the May 20, 2022 decision of respondent Commissioner of the Office of Labor Relations (OLR) finding that the individual petitioners' job titles were never included on the Official List of Physically Taxing Positions (Official List) and the May 5, 2022 decision of respondent Executive Director of the New York City Employee Retirement System (NYCERS) cancelling additional pension contributions being withdrawn from petitioners' paychecks based on their prior physically taxing status, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The OLR determination that the individual petitioners' job titles of Supervisor of Traffic Device Maintainers (STDM) Levels II and III were not on the Official List after reclassification in 2012 was not arbitrary and capricious (see CPLR 7803[3]; Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). There is no dispute that the prior job titles of Supervising Superintendent of Maintenance (SSM) Levels I and II were not on the Official List, which was last updated in 2005 (see generally Retirement and Social Security Law §§ 604-c[a][11], 604-d[d][2]; Administrative Code of City of NY §§ 13-101[56], 13-162[l][1]-[2]). The January 25, 2012 resolution of the New York City Department of Citywide Administrative Services (DCAS), whereby SSM Levels I and II were renamed STDM Levels II and III, respectively, dictated that there was "no change in duties or status," and the job descriptions issued at the time of the DCAS resolution show no change in duties. Thus, it was not irrational for OLR to find in 2022 that there had been no change in physically taxing status in 2012. It follows that OLR was not required to notify petitioner union of any intent to remove STDM Levels II and III from the Official List in 2022, as no such removal occurred, and that the individual petitioners were not entitled to retain a physically taxing status under the statutory provisions they cite (compare Administrative Code of City of NY § 13-162[l][7][a], [d]).

Similarly, the determination by NYCERS to cancel the additional pension withdrawals it had been taking from the individual petitioners' paychecks beginning prior to their promotions from a position on the Official List to STDM Level II or III was not arbitrary and capricious or affected by an error of law. NYCERS rationally relied on the alternative payroll code appearing in the relevant time and attendance records, by which NYCERS effected the pension withdrawals and which does not appear on the Official List, to conclude that these additional withdrawals were erroneous (see also Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, [*2]34 NY3d 184, 195 [2019]). Moreover, this conclusion was consistent with OLR's determination.

We have considered petitioners' remaining contentions and find them unavailing.

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

ENTERED: March 6, 2025

Accidental Disability Retirement Benefits not available to employee suffering an injury while acting within the scope of his ordinary employment duties

The Appellate Division held the determination of the Board of Trustees of the Police Pension Fund [Respondent] denying Petitioner's application for Accidental Disability Retirement Benefits [ADR] was supported by credible evidence that Petitioner was injured when he slipped on ice cubes while getting into a police vehicle after responding to a 911 call. 

Citing Matter of Compagnone v DiNapoli, 2024 NY Slip Op 06235, the Appellate Division found that Respondent appropriately considered whether Petitioner was acting within the scope of his ordinary employment duties and whether the incident was an inherent risk of those regular duties, and opined that "It is an inherent risk of [Petitioner's] regular job duties to encounter debris on the sidewalk and roadway while responding to a 911 call.

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

Allegations of bullying and harassment of student by school administrators found to be without merit

In this appeal to New York State's Commissioner of Education Petitioner alleged that the “misguided approach taken by [the principal and vice principal] … created an adverse and unfair environment” for the student. 

The Commissioner found the school officials "appropriately responded to Petitioner’s allegations of bullying and harassment", noting "A [school] district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious".

The Commissioner's decision is set out below:

Appeal of L.P., on behalf of her child, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding student bullying.

Decision No. 18,552

(February 25, 2025)

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a decision of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent”) regarding a Dignity for All Students Act (“Dignity Act”) complaint concerning her child (the “student”).  The appeal must be dismissed. 

The student attended third grade in respondent’s district at the time of the events described herein.  Sometime in October 2023, a parent reported that petitioner’s child had been “unkind” to a classmate.  In response, the principal and vice principal directed the students to “take a break” from each other.  Petitioner asserts that, as a result thereof, the student was unnecessarily isolated from the classmate.  For example:

• On December 2, 2023, school staff moved the student to a different table in the cafeteria after she attempted to sit across from the classmate;
• On December 14, 2023, the classmate told the student that she could not be included in her friend group; and
• On January 26, 2024, during a lunch break, the classmate told the student that they could not be in the same room together.  

On January 29, 2024, petitioner filed a Dignity Act complaint alleging that the principal and vice principal engaged in bullying and harassment.  Petitioner claimed that the administrators harbored a “discriminatory … attitude towards” the student and that the “school’s approach to resolution of [this] inter-child relationship issue lack[ed] equality.”  Petitioner further stated that the “misguided approach taken by [the principal and vice principal] … created an adverse and unfair environment” for the student. 

By letter dated February 8, 2024, the principal informed petitioner that the district had investigated and found her allegations of bullying and harassment to be without merit.  This appeal ensued. 

Petitioner claims that the principal and vice principal improperly directed the student to avoid interacting with the classmate.  For relief, petitioner requests that the Commissioner order a third party to investigate and “confirm if this situation with [the student] was dealt with in a professional and sensitive [manner].”  Petitioner also requests an investigation to determine why respondent took “such a drastic approach” to managing interactions between the students.

Respondent maintains that petitioner failed to exhaust administrative remedies prior to commencing this appeal.  On the merits, respondent contends that it thoroughly investigated the matter and reached a conclusion supported by the evidence. 

First, I must address two procedural matters.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). Petitioner submitted a reply over two weeks late without explanation.  As such, I have not considered it in reaching my determination. 

Next, respondent argues that, under board policy 0115-R, petitioner was required to appeal to the superintendent before she could commence this appeal.  A board of education may adopt rules governing appeals of district decisions and may impose timelines in connection therewith (Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480).  Any such policy must be reasonable and clearly communicated to parents (Appeal of S.R. and T.J.R., 63 Ed Dept Rep, Decision No. 18,357).  Even assuming that policy 0115-R imposes a mandatory appeal requirement, it was not clearly communicated to petitioner.[1]  The principal’s February 8, 2024 letter states that petitioner “ha[d] the right to appeal this outcome determination … [i]f [she] wish[ed] … to the District Level Dignity Act Coordinator.”[2]  I do not find that this general language provided sufficient notice of a mandatory appeal requirement.  As such, I decline to dismiss the appeal for failure to exhaust administrative remedies (Appeal of S.L., 58 Ed Dept Rep, Decision No. 17,567; see generally Appeal of J.B.W., 62 id., Decision No. 18,205).

Turning to the merits, the Dignity Act prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).  Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....[3]

A district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

I find that respondent appropriately responded to petitioner’s allegations of bullying and harassment.  The record reflects that the investigator interviewed several witnesses, including ten students, a classroom teacher, a school psychologist, and two school employees.  These interviews, together with email correspondence with petitioner, formed the basis of the investigator’s report.  The interviews reveal that the student and classmate experienced conflict while attempting to navigate social interactions.  One factor that contributed to these conflicts is that, according to the school psychologist, one of the students is “very sensitive” and tends to “hang [] onto minor social conflicts that are pretty typical for the age and ... rehash them.” 

Based on this evidence, I find that respondent conducted a thorough investigation and reached a reasonable conclusion (see Appeal of A.V.A., 64 Ed Dept Rep, Decision No. 18,451; Appeal of D.B. and S.B., 63 id., Decision No. 18,348).  There is no evidence in the record that the principal or assistant principal “singl[ed] out” the student or created a hostile environment.  As respondent indicates, “[t]he witness interviews revealed that both [s]tudent[s] ... have made [each] other upset at times.”  As a result, petitioner has not proven that respondent’s Dignity Act determination was arbitrary or capricious.

To the extent petitioner seeks a third-party investigation concerning this matter, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.E.M., 58 Ed Dept Rep, Decision No. 17,580; Appeal of D.C., 57 id., Decision No. 17,223).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

[1] This policy indicates that a Dignity Act determination by a principal or assistant principal “may” be appealed to the superintendent.

[2] It appears that the superintendent is the district-level coordinator.

[3] The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11 [7] [d]).