Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization

Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization
Murphy v Town of Ramapo, 2010 NY Slip Op 09233, Decided on December 14, 2010, Appellate Division, Second Department

Dennis Murphy, Jr., then a 16-year-old member of the "youth corps" of the Ramapo Valley Ambulance Corp. Inc., sued Ramapo to recover for personal injuries he suffered as a result of his being injured when a pen thrown by a member of Ramapo struck him in the eye while he was on Ramapo's premises.

Ramapo’s motion for summary judgment dismissing Murphy’s action on the grounds that it was barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19 was denied by Supreme Court.*

The Appellate Division agreed with the Supreme Court's result, but for a different reason.

Essentially the Appellate Division ruled that Ramapo failed to show that Murphy within the statutory definition of “a volunteer ambulance worker” and thus he was not barred from suing by reason of the statutory "exclusivity provision" set out in §19. Why? Because Murphy's name was not on the list of Ramapo's members.

The court pointed out that §3[1] of the Volunteer Ambulance Workers' Benefit Law defines a "[v]olunteer ambulance worker" as ‘an active volunteer member of an ambulance company as specified on a list regularly maintained by that company for the purpose of this chapter’."

Ramapo, said the court, did not submit proof that Murphy was on such a list and thus failed to meet its burden of showing that the provisions of Volunteer Ambulance Workers' Benefit Law §19 controlled insofar as Murphy’s maintaining his action against Ramapo was concerned.

N.B. "Being listed" is critical in public employment situations as well. For example, the status of an individual appointed to a position in the classified service of the State as an employer or a political subdivision of the State is determined by records of the responsible civil service commission notwithstanding the belief or intent of the appointing officer concerned making the appointment.

* §19 of the Volunteer Ambulance Workers' Benefit Law §19 provides, in pertinent part, that "the benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker … otherwise entitled to recover damages, at common law or otherwise, for or on account of an injury … resulting from an injury to a volunteer ambulance worker in line of duty."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09233.htm

Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment

Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment
Matter of Walsh v Kelly, 2010 NY Slip Op 09346, Decided on December 16, 2010,* Appellate Division, First Department

New York City Civil Service Commission, after a hearing, affirmed the determination of the New York City Department of Citywide Administrative Services to disqualify and terminate Gary Walsh as a New York City police officer.

The basis for the Department’s action, Walsh had omitted and falsified pertinent facts about his background in his application for employment.

The Appellate Division said that the determination to terminate Walsh’s employment was “rationally supported by testimony and documents adduced at the hearing” showing that Walsh had concealed that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide.

Civil Service Law §50.4 provides, in pertinent part, the “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible:

(f) who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment ….”

* The hearing before the Civil Service Commission was not mandated by law and, therefore, the proceeding was improperly transferred to the Appellate Division which, nevertheless, elected to decide the matter on the merits.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09346.htm

Violating the employer’s “Use of the Internet Policies” while at work

Violating the employer’s “Use of the Internet Policies” while at work
Schnaars v Copiague Union Free School District, 275 AD2d 462

Public employers are adopting policies dealing with its employees using the agency’s computers to access the Internet for personal business and transmitting and receiving personal e-mail. Some employee organizations have included demands to negotiate computer and e-mail policies among its collective bargaining proposals.

Recognizing the growing concerns of both the employer and employee organizations in this area, the Schnaars case serves to illustrate the problem and its resolution when one employee was found guilty of violating the employer’s computer policy.

The Copiague Union Free School District distributed a written memorandum advising its custodial staff that using its computers to access inappropriate material on the Internet violated district policy after it learned of the unauthorized use of its equipment by district employees.

The memorandum also cautioned that employees who violated the policy would be subject to disciplinary proceedings, which could result in suspension and/or termination.

About three months after promulgating its policy, the district learned that Robert Schnaars, the head custodian of the night crew at Copiague High School, used the school’s computers to view pornographic web sites on the Internet with his subordinates during two night shifts.

Schnaars was served with disciplinary charges and ultimately found guilty of using the District’s computers to view inappropriate material. Rejecting the hearing officer’s recommended that Schnaars be demoted from his position of head custodian, the district imposed the penalty of dismissal.

Schnaars, however, contested his termination on the grounds that the penalty imposed by the district was disproportionate to the offense. The Appellate Division agreed and remanded the matter to the district with instructions that it impose a penalty other than dismissal in light of Schnaars’ previous unblemished 13-year record of loyal service to the District with many accolades.

The court said that in its view, the District did not give sufficient weight to these mitigating factors. But for Schnaars’ unblemished 13-year record of employment with the district, the court might well have sustained his dismissal for violating the policy.

Clearly the court was neither troubled by the fact that the district had adopted a computer use policy nor that it had initiated disciplinary action when it learned that an individual had violated the policy. Its only concern in this case was the nature of the penalty imposed in view of Schnaars employment history with the district.

It appears that the courts will not treat violations of policies addressing the personal use of computers by employees lightly.

Burden of proof in disability claims

Burden of proof in disability claims
Musa v Nassau County Police Dept., 276 AD2d 851

The Musa decision demonstrates the burden place on an applicant seeking workers’ compensation death benefits.

Musa, a Nassau County police officer, committed suicide while at home. His widow, Nancy Musa, filed an application for workers’ compensation benefits death benefits.

The basis for her claim: her husband committing suicide because of work-related stress caused by the Nassau Police Department’s use of improper practices to reprimand him and to prevent his promotion.

The Workers’ Compensation Board, reversing a Workers’ Compensation Law Judge’s ruling, concluded that Musa’s death did not arise out of and in the course of his employment and rejected Mrs. Musa’s application for workers’ compensation death benefits. The Board concluded that Musa’s suicide was precipitated by an underlying depressive condition unrelated to any stress experienced by decedent at work.

Mrs. Musa appealed, arguing that the Board’s determination was not supported by substantial evidence because it was based, in part, on a report by a medical expert who failed to appear at the hearing. While the Appellate Division agreed with Mrs. Musa that the Board incorrectly relied upon this expert’s medical report in making its determination, it nevertheless affirmed the Board’s decision to reject her claim for benefits.

The reason for this, said the court, was that workers’ compensation death benefits may be awarded in cases of suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by a work-related injury. While Musa’s husband’s depressive condition might qualify as a brain derangement permitting an award of death benefits, Mrs. Musa failed to meet her burden of establishing by competent medical proof that a causal relationship existed between her husband’s employment and his depression and the suicide.

According to the decision, the only medical evidence offered by Mrs. Musa concerning causation was the testimony of her husband’s treating psychologist. While the psychologist testified that Musa’s suicide was causally related to employment stress, the Board rejected this opinion, finding that it was based upon information provided by Mrs. Musa and her attorney following the decedent’s suicide rather than the psychologist’s independent recollection of treating Musa’s husband five years earlier.

Affirming the Board’s decision, the Appellate Division commented that because the Board found that the psychologist’s opinion lacked evidentiary support in the record, the opinion had no probative value on the issue of causal relationship and the Board correctly declined to consider it.