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Plaintiffs in this action alleged law enforcement personnel engaged in malicious prosecution, fabrication of evidence, and false arrest

The United States Court of Appeals for the Second Circuit's summary of its decision in this action, Carruthers v Colton - 22-3232-cv, is set out below:

"Judgment, entered on November 29, 2022, by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), granting the motion to dismiss Carruthers’s complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants-Appellees Kimberly Colton, Charles Humphreyville, and Kristen Weston (hereinafter, “Defendants”). 

"Carruthers brought claims, pursuant to 42 U.S.C. §1983, for malicious prosecution, fabrication of evidence, false arrest, and failure to intervene against Defendants, who are all New York State Troopers. 

"The claims arose from Defendants’ alleged participation in a traffic stop of Carruthers’s vehicle on September 4, 2017, in Oneida County, New York, and in his subsequent arrest and prosecution for a felony driving while intoxicated (“DWI”) offense, multiple lesser DWI-related offenses, and a traffic infraction. 

"We conclude that the district court correctly dismissed Carruthers’s false arrest claim and the portion of his malicious prosecution claim based on the DWI related charges that were dismissed as part of his guilty plea to the traffic infraction but erred in dismissing Carruthers’s malicious prosecution claim as to the terminated felony charge and his fabrication of evidence claim.

"First, with respect to the false arrest claim, we agree with the district court that Carruthers’s guilty plea to the traffic infraction established probable cause for his arrest and defeats that claim. Second, as to the malicious prosecution claim, the district court correctly held that Carruthers does not have a viable claim as to the DWI-related charges dismissed as part of the negotiated guilty plea. 

"We generally assess the favorable termination element of a malicious prosecution claim charge by charge. Applying that rule to the guilty plea context, when a charge is dismissed as part of a negotiated agreement in which the defendant agrees to plead guilty to a different charge, that dismissal does not constitute a favorable termination for the purposes of a malicious prosecution claim. However, even if a guilty plea has been entered into for one or more charges, a favorable termination can be established for another dismissed charge in the same criminal case if the dismissal was unrelated to the plea disposition. 

"Thus, Carruthers has a plausible claim as to the terminated felony charge because the amendment of that charge to a misdemeanor (which effectively dismissed the felony charge) does not appear, based upon the complaint, to have been terminated as part of the guilty plea disposition. 

"Finally, with respect to the fabrication of the evidence claim, we conclude that Carruthers has adequately alleged particularized facts that, when construed in his favor, could reasonably give rise to the inference that Trooper Colton intentionally fabricated evidence to justify the DWI-related charges. 

"Accordingly, we AFFIRM the judgment of the district court as to the false arrest claim and the malicious prosecution claim insofar as it relates to the DWI related charges dismissed as part of the plea agreement, we VACATE the judgment of the district court as to the malicious prosecution claim only as it 3 relates to the terminated felony charge and the fabrication of evidence claim, and we REMAND for further proceedings consistent with this opinion."

Click HERE to access the full text of the Second Circuit's decision in this matter.

Employment opportunities with New York City's Office of Administrative Trials and Hearings

The New York City Office of Administrative Trials and Hearings [OATH] Trial Division is seeking recent law school graduates for appointment to positions of Law Clerk. 

Working directly with OATH’s Administrative Law Judges, Law Clerks engage in legal research and writing on cases involving civil servant discipline, consumer and worker protection matters, taxi and rideshare licensing, contract disputes involving the city, as well as cases falling under the Campaign Finance Law, Human Rights Law, Conflict of Interest Law, and more.

OATH is also seeking to fill the position of Supervising Law Clerk to head OATH's legal research unit and supervise its staff of Law Clerks. 

The Supervising Law Clerk position requires admission to the New York State Bar; four years of recent full-time responsible, relevant, satisfactory legal experience following admission to any bar, 18 months of which must have been in the supervision of other attorneys, in an administrative, managerial or executive capacity. Experience handling highly complex and significant legal work is a plus. 

Incumbents serving these positions must remain members of the New York State Bar in good standing while so employed by OATH and work to promote access to justice in New York City.

For more details visit https://cityjobs.nyc.gov/ and search for Job ID 720154 (Supervising Law Clerk) or Job ID 720158 (Law Clerk).

Judicial officers act in a judicial capacity when they decide firearms license applications and have absolute immunity from suit in their individual capacities

The Plaintiffs in this action, brought in the United States District Court for the Northern District of New York, are New York State residents who applied for concealed carry licenses pursuant to New York State’s firearms licensing laws*. 

A New York State court judge, Judge Jonathan D. Nichols, serving as a statutory firearms licensing officer, had reviewed and denied the Plaintiffs' applications for failing to meet the statutory criteria for eligibility for such a license. 

The Plaintiffs sued Judge Nichols in his individual and official capacities under color of 42 U.S.C. §1983, alleging that New York’s firearms licensing laws violate their rights under the Second and Fourteenth Amendments to the Constitution of the United States. A Federal District Court dismissed the Plaintiffs’ §1983 claims, holding:

1. Absolute immunity barred Plaintiffs' individual-capacity claims because Judge Nichols acted in his judicial capacity in ruling on their respective applications; and 

2. U.S.C. §1983 and Article III’s case-or-controversy requirement barred Plaintiffs' claims for injunctive relief and declaratory relief".

The Plaintiffs appealed the District Court's rulings. The Second Circuit Court of Appeals affirmed the District Court's decisions.

In so doing the Circuit Court of Appeals reaffirmed its precedent that judicial officers are acting in a judicial capacity when they decide firearms license applications and therefore, "enjoy absolute immunity from suit in their individual capacities". 

The Circuit Court further explained that "Plaintiffs’ specific claims for injunctive relief and declaratory relief against Judge Nichols in his official capacity are barred by Article III’s case-or-controversy requirement". 

* See New York State’s Penal Law §400.00, et seq.

Click HERE to access the Second Circuit's decision posted on the Internet.

The Real Risk Isn’t the Cloud—It’s Premises-Based Software -

Cloud Computing for Lawyers by Rochester, New York Attorney Nicole Black, was published by the American Bar Association. Click HERE to read the whole story.

Jurisdiction's motion for summary judgment denied in an action alleging its law enforcement personnel used excessive force in responding to an incident

The Plaintiffs in this action sought to recover damages based on the alleged use of excessive force by certain officers of a Town's Police Department and other named defendants [Defendants] in the course of certain Defendants' responding to an incident. 

Defendants moved for summary judgment dismissing the Plaintiffs' complaint insofar as asserted against them. Supreme Court denied Defendants' motion and the Defendants' appealed the court's ruling. 

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

1. "'Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness", citing Combs v City of New York, 130 AD3d 862, quoting Moore v City of New York, 68 AD3d 946; and 

2. Determining an excessive use of force claim involving law enforcement personnel requires an analysis of the facts of the particular case, including:

    a: "the severity of the crime at issue; 

    b. "whether the suspect poses an immediate threat to the safety of the officers or others; and 

    c. "whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight".

Further, citing Holland v City of Poughkeepsie, 90 AD3d 841, the Appellate Division opined that "The question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide".

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

Former Fire Department Treasurer pleads guilty to grand larceny in the second degree

The Former Treasurer of the Vernon Center New York [Fire Department] "pled guilty to grand larceny in the second degree", conceding having stolen more than $300,000 from the Department. As noted in earlier NYPPL summaries of court decisions involving  a public employee stealing public funds, such breaches of the public trust are sometimes  referred to as "jobbery." Merriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

On August 14, 2025 New York State Comptroller Thomas P. DiNapoli issued a press release reporting that Jonnell Rose, a former Treasured of the Vernon Center New York Fire Department, "pled guilty to grand larceny in the second degree" after stealing more than $300,000 from the Fire Department. 

In a press release dated August 14, 2025, Comptroller DiNaoppli, together observations made by Oneida County District Attorney Todd Carville, and New York State Police Superintendent Steven G. James, stated the following:

“Jonnell Rose betrayed his community’s trust and stole over $300,000 meant to protect it,” DiNapoli said. “I thank District Attorney Carville and the New York State Police for their partnership in holding him accountable.”

Carville said, “This crime is particularly disturbing because of the victims that were targeted, the community and the fine men and women who selflessly give their time and talent as volunteer firefighters. I would like to thank the New York State Police and the New York State Comptroller’s Office for their hard work as well as the efforts of my Assistant, ADA Paul Kelly, who ensured that the defendant was held responsible and prosecuted to the fullest extent of the law.”

James said, “This guilty plea demonstrates the vital collaborative work of our law enforcement partners focused on the same goal; holding those who break our laws, accountable. Mr. Rose took advantage of a position he was entrusted in, and stole funds intended to support the Vernon Center Fire Department and the community it serves. I thank our State Police members, the Comptroller’s Office, and Oneida County District Attorney’s Office for their commitment to investigating and prosecuting those who victimize others.” 

A joint investigation by DiNapoli’s office and the State Police found Rose, 52, of Vernon, stole $309,000 from the department over a six-year period from May 2018 to May 2024.

Rose wrote fire department checks to cash, which he pocketed, deposited checks written to various legitimate fire department vendors into his personal accounts and deposited checks intended for the department into his own bank account. 

A forensic examination by DiNapoli’s office revealed that Rose made numerous personal purchases and payments, including crypto currency transactions, credit card payments, and cash withdrawals with the funds he stole from the department.

Rose pled guilty before Judge Michael Nolan in Oneida County Court to Grand Larceny in the Second Degree and will be sentenced on October 28, 2025.

Selected items from various blogs posted on the Internet during the week ending August 15, 2025

New York State’s Local Cybersecurity Reporting Rules Kick In New York Gov. Kathy Hochul has announced that recently approve lawmakers requirements have kicked in and “all municipal corporations and public authorities” must report any “cybersecurity incidents” within 72 hours. Gov. Hochu has also established a Joint Security Operations Center, a data-sharing command center for cybersecurity.

Cyber Resilience for State & Local Government: A Roadmap to Smarter, Faster, Stronger Defense. Learn how to shift from reactive defense to proactive resilience with three key strategies: endpoint protection, real-time response, and unified visibility across hybrid environments. Download the paper.

Now is the time to secure your seat. The New York City Public Sector Cybersecurity Summit to be held on October 23 in New York City is now accepting registrations. Click here to register today to secure your spot.

AI in State and Local Government: Everything You Need to Know.  Artificial Intelligence (AI) often dominates technology discussions. This go-to guide shares everything you need to know to quickly begin implementing AI and developing the appropriate policy for the technology. DOWNLOAD

Preparing Utilities and Local Governments for a Paperless World. The paperless future is here. Is your utility or local government ready? This resource explores how utilities can embrace a paperless future to cut costs, improve operational efficiencies, and meet modern demands. DOWNLOAD

Pennsylvania Counties and Cities Step In to Rescue Struggling Main Streets Municipalities are investing in small-business corridors to combat closures, rebuild after disaster and boost local economies. READ MORE

S.F. Police Union Shifts Leadership to ‘Boots-on-the-Ground’ Advocate
After 30 years patrolling the city’s toughest neighborhoods, Louie Wong now leads the San Francisco Police Officers Association with promises to pursue better pay and earlier retirement benefits. READ MORE

Sixteen rural counties in New York State face a shortage of health professionals

On August 14,2025. New York State Comptroller Thomas P. DiNapoli issued a new report which examined healthcare professional shortages in 16 rural counties in New York state, Allegany, Cattaraugus, Chenango, Delaware, Essex, Franklin, Greene, Hamilton, Herkimer, Lewis, Schuyler, Steuben, Sullivan, Washington, Wyoming and Yates counties.

The Comptroller reported "alarming shortfalls in primary care, pediatric, and obstetrician and gynecologist (OBGYN) doctors, dentists and mental health practitioners, with several counties having no pediatricians or OBGYN doctors at all." 

The report also noted that the "shortage of mental health practitioners in New York’s rural counties may be the most severe, with all counties designated by the federal government as areas having professional shortages."

 [Click report to access the text of the Comptroller's report.]

“Having access to health care is an essential quality of life issue and helps people live healthier lives,” DiNapoli said. “Addressing gaps in the rural healthcare workforce to alleviate current shortages and plan for future demand will not only positively impact the health of people living in less populated areas of New York, but could also create new jobs and bolster our rural economies.” 

Key Findings:

• Ten of the sixteen rural counties covered in this report are federally designated as Health Professional Shortage Areas for primary care, dental and mental health; all 16 counties examined have shortage designations for at least two of these fields of medicine.
• On average, the 16 rural counties have four primary care physicians per 10,000 people – a ratio that is less than half that of the state (8.1) and the U.S. (8.4) and falls below the Graduate Medical Education National Advisory Committee (GMENAC) guideline (6.9). For the nearly 173,000 people within designated Primary Care Health Professional Shortage Areas (HP Shortage Area) who are underserved (23% of the rural counties’ population), these shortages are far more acute – as low as 0.12 physicians per 10,000 people.
• The 16 rural counties have 0.5 pediatricians for every 10,000 people – less than one-fifth of the state ratio (2.8), one-third of the U.S. (1.8), and less than half the GMENAC guideline (1.2). There are no pediatric physicians in three of the 16 counties.
• The OBGYN physician to 10,000 population ratio of the 16 rural counties is 0.4 – meaning there is roughly one OBGYN physician for every 23,000 people. This is less than half the GMENAC guideline (1). Four counties – Hamilton, Herkimer, Schuyler and Yates – have no OBGYN physicians at all.
• The 16 rural counties’ dentist to 10,000 population ratio (3.6) is less than half of the state ratio (8.3). There are no dentists in Hamilton County. Ten of the sixteen rural counties have dental HP Shortage Areas for the Medicaid eligible population with a combined underserved population of 134,248 people, or nearly 18% of the population.
• The rural counties’ mental health practitioner to 10,000 population ratio (6.9) is less than half that of the state (16.1). All of the rural counties are designated as mental health HP Shortage Areas either for the entire population, or for portions of the population like the low income or Medicaid eligible portions of the population. In the rural counties, there are 305,265 people within mental health HP Shortage Areas who are designated as underserved by the Health Resources Services Administration, or nearly 41% of the population.

Impact of Federal Actions

The limited number of providers and physical facilities in New York’s rural counties presents an additional barrier to recruiting more healthcare professionals. Not all counties have hospitals or rural health clinics, and those that do operate on tight margins, or at a loss. Reductions in eligibility for Medicaid and the Essential Plan made in the recently enacted federal budget bill (Public Law No: 119-21) may exacerbate the issue, potentially forcing some rural hospitals to close. New York state has six rural hospitals that are in the top 10% for Medicaid payer mix throughout the nation and an additional five that have experienced three consecutive years of negative margins. In the 16 rural counties examined, 204,899 people, or 27% of the population, were enrolled in Medicaid as of May 2025.

It is unclear at this time the extent to which the impact of Medicaid cuts on rural healthcare systems will be offset by funding made available through the federal Rural Hospital Transformation Program. Public Law No: 119-21 allocated $10 billion a year from federal fiscal years 2026 to 2030 to support rural hospitals, clinics, federally qualified health centers, and community mental health centers, but it is not guaranteed that all states that apply will receive funding.

Overcoming Rural Barriers to Healthcare Access

Transporting people to healthcare, particularly those with limited or no access to cars, is particularly challenging. Most rural counties have limited public transportation options, but paratransit for the elderly is relatively common, and there may be opportunities to expand services to other demographics where such services don’t exist.

The expansion of telemedicine for certain types of care is another option to bolster rural health systems but is not a complete solution. Physical examinations are more difficult, when possible, through telemedicine and many necessary services like bloodwork and other testing require in-person access to patients. For other types of care, such as mental health counseling, telemedicine has the potential to increase access to providers.

Other strategies to increase healthcare access involve meeting people where they are. Mobile clinics can be deployed on a regular schedule to underserved rural communities, alleviating transportation barriers to access, and without the cost of opening and maintaining brick and mortar clinics. School-based health centers are another option to expand healthcare access to rural New York.

Policies to bolster the rural healthcare workforce can also be pursued, such as incentivizing the training of new healthcare professionals to serve in rural New York through loan forgiveness programs and rural stipends or subsidies, and attracting existing professionals to rural areas through similar programs or implement reciprocity programs for out-of-state professionals to serve in rural areas.

Analysis

The Doctor is…Out: Shortages of Health Professionals in Rural Areas

Related Reports

Rural New York: Challenges and Opportunities

Availability, Access and Affordability: Understanding Broadband Challenges in New York State

Audit: Maternal Health

An employer cannot obtain summary judgment in an unlawful discrimination case unless the record demonstrates that there is no triable issue

In an action to recover damages for alleged unlawful employment discrimination on the basis of disability in violation of the New York State Human Rights Law [NYSHRL], Plaintiff appealed a Supreme Court's order granting the City of Yonker's [Employer] motion for summary judgment dismissing Plaintiff's complaint. 

The Appellate Division reversed the Supreme Court's order, on the law, with costs, and the Employer's motion for summary judgment dismissing the Plaintiff's complaint was denied.

Plaintiff, employed in the Employer's Department of Public Works [DPW] and was assigned to work in sanitation immediately before being placed on an authorized leave of absence without pay. Plaintiff requested assignment as a custodian at another location, one of the City's senior citizens centers, in consideration of his disability psoriatic arthritis as a reasonable accommodation of his disability. 

Employer told Plaintiff that it was currently unable to provide the requested accommodation as approving the request would require the Plaintiff to be "permanently excused from performing the essential functions of his position".

The Appellate Division, noting that NYSHRL prohibits discrimination in employment based on, among other grounds, disability, observed "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability".

Observing that reasonable accommodations include "reassignment to an available position", the Appellate Division opined that an employer normally cannot obtain summary judgment on an employment discrimination claim based on disability pursuant to NYSHRL "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation," and the employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request".

To prevail on a summary judgment motion with respect to a claim pursuant to NYSHRL, the Appellate Division noted:

1. The employer must show that it engaged in a good-faith interactive process that assessed the needs of the disabled individual;

2. The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested;

3. The Employer must establish, prima facie, that it engaged in a good-faith interactive process that assessed the needs of the plaintiff"; and

4. The Employer's consideration of the reasonableness of the employee's requested accommodation.

The Appellate Division said the Employer relied on the deposition testimony and affidavit of the DPW's Commissioner, who denied the Plaintiff's request for an accommodation. 

However, the court noted that there was no evidence in the record that the Commissioner was aware of Plaintiff's condition when he made his decision; or that the Commissioner considered the accommodation that the Plaintiff was requesting --  reassignment to the position of a custodian at one of the City's senior citizens centers;

The Commissioner, however, had testified:

a. He had not met with the Plaintiff to discuss his request for an accommodation;

b. He did not know that the Plaintiff's request for an accommodation involved  psoriatic arthritis; 

c. He did not know the limitations typically associated with that condition; and

d. He did not speak with the Plaintiff's physician and that he did not recall reviewing any of the information that the physician provided to the City.

Accordingly, opined the Appellate Division, the City's motion for summary judgment dismissing the Plaintiff's complaint should have been denied by Supreme Court "without regard to the sufficiency of the [Plaintiff's] opposition papers".

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

Supplemental military leave benefits for certain New York State employees extended

 On August 13, 2025, the New York State Department of Civil Service posted the item set out below on the Internet: 

NOTICE OF ADOPTION Supplemental Military Leave Benefits,  

I.D. No. CVS-18-25-00006-A Filing No. 689 

Filing Date: 2025-07-25 Effective Date: 2025-08-13 

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: 

Action taken: Amendment of sections 21.15 and 28-1.17 of Title 4 NYCRR, Statutory authority: Civil Service Law, section 6(1) 

Subject: Supplemental military leave benefits. 

Purpose: To extend the availability of supplemental military leave benefits for certain New York State employees until December 31, 2025. 

Published in the May 7, 2025 issue of the Register, I.D. No. CVS-18-25-00006-P. 

Final rule as compared with last published rule: No changes. 

The text of rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov

Assessment of Public Comment: The agency received no public comment.

Plaintiff's efforts to vacate a determination of a hearing officer made pursuant to Education Law §3020-a rejected

A former teacher [Plaintiff], terminated by the New York City Department of Education [DOE] after "notice and hearing" pursuant Education Law §3020-a, initiated an action pursuant to Article 75 of the CPLR challenging the decision and recommendation of an arbitrator that resulted in Plaintiff's termination as an employee of DOE. Supreme Court, however, granted DOE's motion to dismiss Plaintiff's petition, which ruling was affirmed by the Appellate Division, with costs.

Petitioner, then a tenured teacher employed by DOE, was terminated after being found guilty of charges of misconduct and neglect of duty.  The Education Law §3020-a hearing officer issued a written determination sustaining most of the specifications alleged by the DOE and recommended the Plaintiff be terminated from employment, which findings and recommendation were adopted by DOE.

Citing Matter of Waldren v Town of Islip, 6 NY3d 735, and other court decisions, the Appellate Division explained that a court may set aside an administrative penalty only if "it is so disproportionate to the offense as to be shocking to one's sense of fairness". Opining that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty". The Appellate Division also noted that "A penalty should not be set aside where it is not irrational and does not shock the conscience."

As the question of whether the penalty "is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis", the Appellate Division concluded that "in light of all of the circumstances of this case", the penalty of termination in the instant matter was "not irrational and does not shock the conscience".

As to Petitioner's contentions that the hearing officer's determination must be vacated because the arbitration did not conform to the procedures set forth in Education Law §3020-a or in the collective bargaining agreement, the Appellate Division ruled that such argument were "waived, as these issues were not raised at the arbitration hearing."

Accordingly, the Appellate Division found that "Supreme Court properly granted DOE's motion" to dismiss Plaintiff's CPLR Article 75 appeal.

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

On August 12, 2025 Governor Kathy Hochul announced she had appointed Freida D. Foster as Chair of the New York State Workers' Compensation Board and has appointed Renee Delgado, Esq. to serve as Vice Chair of Workers’ Compensation Board

Governor Kathy Hochul appointed Freida D. Foster as Chair of the New York State Workers' Compensation Board (WCB). Ms. Foster has been a Board member since 2009 and Vice Chair since 2016. Former Chair Clarissa M. Rodriguez, Esq. stepped down from her role as Chair in July and will continue to serve as Board Member. Board Member Renee Delgado, Esq. has been appointed Vice Chair. Governor Hochul appointed Ms. Delgado as Board Member in 2022.

“New Yorkers deserve trusted, well-experienced individuals serving them and putting their best interests forward,” Governor Hochul said. “I look forward to working with Chair Foster and Vice Chair Delgado in their new capacities as the Board continues their work in protecting the rights of employees and employers and ensuring our workers get the benefits they need.”

WCB Board Chair Freida D. Foster
Governor Hochul’s appointee for the position of Chair of the New York State Workers’ Compensation Board is Ms. Foster. In the 16 years she has served on the WCB, Ms. Foster has reviewed tens of thousands of workers’ compensation appeals and helped the agency’s efforts to modernize its systems and processes. She also had an important role in implementing NYS Paid Family Leave and assisting the Chair with overall day-to-day oversight and management of the agency and the Full Board.

New York State Workers’ Compensation Board Chair Freida D. Foster said, “I am deeply grateful for the support from Governor Hochul and her executive team, as well as the incredible leadership team at the Board. I am honored to serve under this historic administration and look forward to building on the many important achievements made under the leadership of Chair Rodriguez.”

Ms. Foster has decades of professional experience in the areas of education, government/civic service, and public relations. Prior to joining the Workers' Compensation Board, Ms. Foster was a Public Relations Manager at Burson-Marsteller, where she was the Manager for largest account in the firm, Help America Vote Act (HAVA) and organized the city-wide education campaign for NYC’s voting system transition from manual to electronic machines.

Ms. Foster has held membership on several boards, all with a focus on community and/or civic service as well as student leadership. She currently serves as Chair of the Harlem Community Development Corporation Board of Directors and for the CUNY School of Public Health Advisory Board. Additionally, she sits on the Community Advisory Board for Channel Thirteen/WLIW. She previously served as a Trustee for the City University of New York (2006-16), helping oversee campus management.

A lifelong Harlem resident, Ms. Foster holds an MS in Corporate Communications from the University of Wisconsin and a BA in Communications from Hofstra University.

WCB Vice Chair Renee Delgado
Governor Hochul’s appointee for the position of Vice Chair is Board Member Renee Delgado, who has been serving on the WCB since 2022 and has devoted much of her career to advocating for workers' rights. An experienced attorney, Vice Chair Delgado worked for 14 years at the New York State Public Employees Federation, AFL-CIO (PEF) before joining the Board, holding various titles including Associate Counsel, Director of Contract Administration, and General Counsel. Renee has also worked as a Special Assistant in the Counsel's Office at the New York State Department of Labor, as Assistant Director of Legal Services at the SUNY Colleges of Nanoscale Science and Engineering, as Assistant District Attorney in Queens County and Albany County, and as a legislative aide in the New York State Assembly.

New York State Workers’ Compensation Board Vice Chair Renee Delgado said, “I am honored to be appointed Vice Chair of the NYS Workers’ Compensation Board and thank Governor Hochul for the opportunity to serve our great state. I look forward to working with Chair Foster to deliver a fair and efficient system that protects the rights of injured workers and employers.”

Ms. Delgado holds a juris doctorate from the CUNY School of Law at Queens College, a master's degree in criminal justice from John Jay College in Manhattan, and a bachelor's degree from SUNY Albany.

An award of attorneys' fees must be authorized by agreement between the parties, by statute, or by court rule

In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] which denied the Petitioner's request for a religious exemption from a COVID-19 vaccine mandate, DOE appealed an order of the Supreme Court which:

1. Granted the Plaintiff's petition;

2. Directed that the Petitioner be reinstated to her full employment status; and

3. Awarded the Petitioner $90,555.63 in back pay; and

4. Awarded the Petitioner $31,095 in attorneys' fees.

In response to the COVID-19 epidemic the  New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all DOE employees to provide proof of COVID-19 vaccination. Such mandate was subsequently amended to provide that [nothing] in this [mandate] shall be construed to prohibit any reasonable accommodations otherwise required by law."

Pursuant to an arbitration award between DOE and the Petitioner's union Petitioner was placed on leave without pay while remaining eligible for health benefits and "given the option to comply with the vaccine mandate, retire, resign, or remain on unpaid leave with health benefits until September 6, 2022". Petitioner elected to extend her leave without pay through September 6, 2022 and signed a release and waiver to that effect which provided, in part, "I understand that if I have not returned by September 6, 2022, I shall be deemed to have voluntarily resigned and knowingly waive my rights to challenge such resignation."

On August 19, 2022, Petitioner submitted a request for a religious exemption from the vaccine mandate which DOE denied Petitioner's  request, finding that her application failed to meet the criteria for a religious-based accommodation. The denial did not mention the waiver.

Petitioner remained on leave without pay and retained her health benefits through September 6, 2022 but as she did not return to work by September 6, 2022, DOE deemed that, pursuant to the terms of the waiver and the arbitration award, she had voluntarily resigned as of September 6, 2022.

Subsequently Petitioner commenced the instant proceeding pursuant to CPLR Article 78, challenging DOE's denial of her request for a religious exemption and seeking reinstatement to her position as a teacher and an award of back pay and attorneys' fees. Supreme Court the petition be granted and that the Petitioner be reinstated to her full employment status. In addition Supreme Court found:

a. Petitioner was entitled to a religious exemption from the vaccine mandate; and

b. Awarded Petitioner the principal of sum of $90,555.63 in back pay;  and 

c. The sum of $31,095 in attorneys' fees. 

DOE appealed from both the Supreme Court's order and the judgment.

The Appellate Division held that DOE's appeal from the order must be dismissed "as no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 [citing CPLR 5701[b][1])] and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding."

Although DOE contended that the waiver expressly precludes the Petitioner's claims in this proceeding and, therefore, the proceeding should have been dismissed, the Appellate Division opined that "The waiver at issue is a contract, and its  construction is governed by contract law [and] A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations".

However, as acknowledged by DOE, the Appellate Division observed Petitioner's "contractual promise not to challenge her resignation was not a waiver of her right to seek an accommodation", and thus it follows that Petitioner did waive her right to seek a religious exemption. 

The Appellate Division explained "The clear terms of the waiver, as premised on the arbitration award, permitted the [Petitioner] to comply with the vaccine mandate and return to work by September 6, 2022. One way to comply with the vaccine mandate was for the [Petitioner] to get vaccinated. Another was to successfully obtain a religious exemption and reasonable accommodation" and the amendment to the vaccine mandate earlier noted did not bar individual from seeking reasonable accommodations. 

Noting that had Petitioner had successfully obtained an exemption and concomitant accommodation during the applicable time period, she would have been in compliance with the vaccine mandate and been able to return to work. In the words of the Appellate Division, "contrary to DOE's position, the waiver did not preclude this proceeding to challenge DOE's denial of the [Petitioner's] request for a religious exemption".

In its appeal DOE did not challenge the Supreme Court's determination that DOE's denial of the petitioner's request for a religious exemption was arbitrary and capricious. Therefore, as per Supreme Court's determination, prior to September 6, 2022, the Petitioner was entitled to a religious exemption from the vaccine mandate, and DOE does not contest that determination on this appeal. Accordingly, the Appellate Division affirmed the Supreme Court's determination in this regard.

However, the Appellate Division further held that because an award of attorneys' fees was  not authorized by an agreement between the parties, by statute, or by court rule, "the Supreme Court improperly awarded attorneys' fees to the [Petitioner]."

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

Lack of evidence in the record that the employer was aware of the employee's disability when denying a request for reasonable accommodation bars a court's summary judgment dismissing the employee's complaint

In an action to recover damages for alleged employment discrimination on the basis of disability in violation of the New York State Human Rights Law [NYSHRL], Plaintiff appealed a Supreme Court order granting the Employer's motion for summary judgment dismissing the Plaintiff's complaint.

The Appellate Division reversed the lower court's decision "on the law, with costs", and denied the Employer's motion for summary judgment dismissing the Plaintiff's complaint.

Plaintiff, a custodial worker, requested reassignment to a custodial position in one of the Employer's senior citizens centers as a reasonable accommodation of his disability. In response to the Plaintiff's request, Employer told Plaintiff "it was currently unable to provide the requested accommodation, as [granting] the request would require the [Plaintiff] to be permanently excused from performing the essential functions of his position".

Citing Executive Law §296[a], the Appellate Division observed that the NYSHRL prohibits discrimination in employment based on, among other prohibitions, disability. In particular, the Appellate Division noted that if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position and the employee has a disability' within the meaning of the statute, "the employer cannot disadvantage the employee based on that disability".

As a reasonable accommodations includes "reassignment to an available position", an employer normally cannot obtain summary judgment on an employment discrimination claim based on disability pursuant to NYSHRL "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation," and the employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request".

In this instance the Employer failed to establish, prima facie, that it engaged in a good-faith interactive process that assessed the needs of the Plaintiff and the reasonableness of his requested accommodation. 

In the words of the court, "There is no evidence in the record that the [Employer] was aware of the [Plaintiff's] condition when [it] made [the] determination or that the [Employer] considered the accommodation that the [Plaintiff] was requesting to be reassigned to the position of a custodian at one of the [Employer's] senior  citizens centers". 

In particular, the Appellate Division noted the record showed:

1. The Employer testified that he had no memory of meeting with the Plaintiff to discuss his request for an accommodation;

2. The Employer testified that he did not know that the Plaintiff's request for an accommodation concerned psoriatic arthritis;

3. The Employer did not know the limitations typically associated with that condition; 

4. The Employer did not know the limitations that the condition allegedly caused the Plaintiff to suffer; and

5. The Employer testified that he did not speak with the Plaintiff's physician and did not recall reviewing any of the information that the physician provided to the Employer concerning the Plaintiff.

According, the Appellate Division held that the Employer's motion for summary judgment dismissing the Plaintiff's complaint should have been denied by Supreme Court without regard to the sufficiency of the Plaintiff's opposition papers.

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

Selected items from various blogs posted during the week ending August 8, 2025

 

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