A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate

Garcia v DiNapoli, 2018 NY Slip Op 06602, Appellate Division, Third Department

A county correction officer [Officer] filed for Retirement and Social Security Law §607-c performance of duty disability retirement benefits claiming he had suffered a  permanently disability as a result of his tripping and falling while descending stairs within the facility in the course of his preparing to move inmates to another location.

Officer's application was denied by the Retirement System on the ground that his alleged disability "was not the result of an act of any inmate" and ultimately the State Comptroller accepted the findings and recommendation of the hearing officer. Officer appealed the Comptroller's determination.

The Appellate Division noted that Officer was [1] required to establish that the alleged incapacity was "the natural and proximate result of any act of any inmate" and [2] had to demonstrate that Officer's claimed injuries were caused by direct interaction with an inmate and were caused by some affirmative act on the part of the inmate." Further, noted the court, the action by an inmate need not to be intentionally directed at the correction officer nor does need to be volitional or disobedient in a manner that proximately causes the officer's injury, but must be more than "a benign chore routinely performed in penal institutions by inmates."  

Officer testified that he daily performs a recreation movement and on the day of the incident he was performing a routine recreation movement in accordance with regular procedures when he heard footsteps behind him, turned around to look, and "saw an inmate right on [his] back" running down the stairs about two steps behind him." Officer then stated the "[u]pon unexpectedly seeing the inmate, [he] became 'scared,' missed a step and grabbed a railing with his arm but continued to fall to the ground, resulting in his injuries."

Officer testified that, although the inmate did not make physical contact with him until assisting him off the ground after he fell, "the inmate should not have been on the stairs at that time," as Officer had not yet given the command to the inmates to descend the stairs. Officer further explained that this incident had never happened before and that "inmates are always required to wait for his command before descending the stairs and entering the recreation yard."

The Appellate Division said that under circumstances it found that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's 'disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so.'"

Under these circumstances the court decided that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so."

While "losing one's footing — without more — does not constitute an affirmative act," in this instance the Appellate Division concluded that Officer's misstep and fall flowed directly, naturally and proximately from the inmate's act of being out of place without permission and startling Officer by running down the stairs.

The Appellate Division remitted the matter to the Retirement System for further proceedings on the issue of the permanency of Officer's alleged disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06602.htm

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement

Meyer v City of Long Beach, 2018 NY Slip Op 06526, Appellate Division, Second Department

Certain retired police officers [Plaintiffs] sought to recover damages resulting from an alleged breach of the terms and conditions set out in a collective bargaining agreement [CBA] established pursuant to Article 14 of the Civil Service Law [the Taylor Law] from their former employer, the City of Long Beach [City]. Supreme Court denied the City's motion to dismiss the Plaintiffs' petition and the City appealed the Supreme Court's ruling. The Appellate Division affirmed the lower court's decision, with costs.

The facts as reported in the Appellate Division's decision are as follows:

Plaintiffs were members of the Long Beach Patrolmen's Benevolent Associations [PBA], when the relevant CBA between the City  and the PBA expired. Efforts to negotiate a successor CBA failed and ultimately an arbitration award resulting from "compulsory interest arbitration," which allegedly had the statutory effect of becoming the successor CBA to the expired CBA for those members covered by the award, was issued.

The Plaintiffs here, however, had retired prior to the issuance of the arbitration award and although Plaintiffs claimed that the arbitration award applied to them, the City contends that it does not and refused to give them certain compensation mandated by the award.

The City argued that:

[1] the doctrine of collateral estoppel bars Plaintiffs from bringing this action, citing the decision in an improper practice charge filed by the Commanding Officers Association of Long Beach, New York, Inc. [COA] against the City with the New York State Public Employment Relations Board [PERB]. In that action  PERB determined that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award; and

[2] Plaintiffs' failed to pursue the grievance procedure set out in the CBA established by the award bars their lawsuit seeking to recover damages for the alleged breach of contract.

With respect to the City's reliance on the doctrine of collateral estoppel, the Appellate Division said that the issue raised in Plaintiffs' action is not identical to the issue litigated in an improper practice charge filed by COA against the City before PERB and PERB's determination that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award did not determine whether the benefits set forth in the arbitration award applied to the Plaintiffs, who were never members of the COA. Thus, said the court, doctrine of collateral estoppel is inapplicable to that issue.

As to the City's claim that Plaintiffs' failed  to pursue the grievance procedure set out in the successor CBA, the Appellate Division said that this failure "does not warrant dismissal of the cause of action to recover damages for breach of contract" as "the CBA limits invocation of the grievance procedure outlined therein to 'bargaining unit member[s].'" The court explained that as retired employees of the City, Plaintiffs were not members of the collective bargaining unit when they became aggrieved and thus they could not have pursued the grievance procedure set out in the CBA that the City claimed was available to them.

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06526.htm

Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency

Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency

LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, Court of Appeals

The Court of Appeals' ruling in LeadingAge, et. al., [Proceeding No. 1.] and Coalition of New York State Public Health Plans, et al., Proceeding No. 2.] explores the concept of separation of powers in the context of the State legislature's delegation of certain rule making powers to the New York State Department of Health, an executive administrative agency [EAA].

The Court of Appeals observed that:

1. An EAA rule or regulation grounded in the statutory mandate must not usurp the Legislature's role;

2. An EAA rule or regulation [a] must be promulgated in consideration of, among other things, findings resulting from research and public comment, [b] have defined thresholds and exclusions, if any, and [c] decisions involving the application of rules and regulations by an EAA must be rational; and

3. An EAA may not promulgate rules or regulations reflecting ideas and policies that are inconsistent with effecting "legislative intent" as set out in the statute.

The Court of Appeals noted that the concept of the separation of powers is "the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." The concept also requires that the Legislature make the critical policy decisions, while the executive branch may be delegated with responsibility to implement those policies.*

The court explained that an EAA, as a creature of the Legislature, acts pursuant to specific grants of authority conferred by their creator. In effect, a legislative body may enact a general statute that reflects legislative policy and, or, intent and then grant authority to an EAA to promulgate and enforce rules and regulations that "expand upon the statutory text by filling in details consistent with that enabling legislation," i.e., promulgating rules and regulations reflecting the legislative body's intent. In the event an EAA promulgates a rule or regulations beyond the power granted to it by the legislature, the EAA is said to have acted "ultra vires"** and usurped the legislature's role thereby violating the doctrine of separation of powers.

In other words, the separation of powers doctrine requires that the legislature make the primary policy decisions while the EAA, in the exercise of its technical expertise, may be vested with considerable discretion to flesh out a policy broadly outlined by legislators in order to implement the legislature's "primary policy decisions."

The Court of Appeals then indicted that to attain this result in promulgating rules and regulations, an EAA may rely on a general but comprehensive grant of regulatory authority to determine the best methods to attain the objectives articulated by the legislature and "because it is not always possible to draw a clear line between the functions of the legislative and executive branches," common sense must prevail when determining whether an EAA has acted within its grant of authority delegated to it by the legislature.

If the court finds that the EAA has been empowered to regulate the matter in question and has not usurped any of the legislative body's prerogative, judicial review of the separation of powers inquiry is at a judicial end as it is not the court's role to question the efficacy or wisdom of the means chosen by the EAA to accomplish the ends identified by the legislature as it is the court's role to determine whether the agency acted within the scope of the authority delegated to it even if believes there are alternative and better means of effecting the legislative body's intent.

Should the court finds that the EAA meets this initial test, i.e., it has acted within the scope of the powers delegated to it by the legislature, it still may be necessary for the court to adjudicate another issue: are the rules, regulations and procedures adopted by the EAA to effect the legislative intent arbitrary and capricious?

* In Schechter Poultry Corp. v. United States, 295 U.S. 495, the United States Supreme Court held that Congress violated the "nondelegation doctrine" by granting certain rule-making powers to a non-governmental entity under color of Article 8 of the Commerce Clause of the Constitution of the United States which vests in Congress the "power to regulate commerce...."

** Acting beyond one's or an entity's legal power or authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06965.htm

State Comptroller DiNapoli Releases School Audits

State Comptroller DiNapoli Releases School Audits

Source: Office of the State Comptroller

The following audits and reports were issued by New York State Comptroller Thomas P. DiNapoli during the week ending October 19, 2018

Click on text highlighted in color to access the full report

Brighter Choice Charter School for Boys – Payroll (Albany County)
School officials effectively designed and implemented procedures to ensure that compensation payments were accurate and properly authorized. Officials established and adhered to an effective payroll process that decreases the risk that errors or irregularities in processing and paying payroll could occur.

Central Islip Union Free School District – Claims Audit Process (Suffolk County)
The district's claims auditor approved $114,333 of claims without documentation to support that the prices charged were accurate. Without adequate documentation such as quotes, bids or contracts, the auditor has no assurance that the district is being billed correctly.

Fort Ann Central School District – Fund Balance Management (Washington County)
District officials need to improve budgeting practices to more effectively manage the general fund balance. The district has accumulated unrestricted fund balance of more than $1.8 million as of June 30, 2017, or 15.25 percent of the 2017-18 budgeted appropriations, exceeding the statutory limit.

Northeast Central School District – Payroll (Dutchess County)
District officials ensured the accuracy of compensation and benefits provided to employees. Auditors found the salaries and wages paid and benefits provided to employees agreed with collective bargaining agreement stipulations and board-approved contracts.

Romulus Central School District – Financial Condition Management and State Transportation Aid (Seneca County)
The board-adopted budgets for the 2014-15 through 2016-17 fiscal years overestimated appropriations by an average of nine percent and generated almost $3.7 million in surpluses during the period. To reduce the unrestricted fund balance to within the statutory limit, officials transferred more than $3.5 million to the capital building reserve and $200,000 to the capital bus reserve over this same period. As a result, reserve fund transactions were not transparent to the public, because each year the funding transfers were not included in the adopted budgets but instead transferred at year-end.

If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal

If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal
Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964,

In deciding Haug v State University of New York at Potsday [Potsdam], a case involving student discipline, the Court of Appeals commented on some issues relevant to the  standard of proof required to support an administrative tribunal's decision.

The Appellate Division had concluded that Potsdam's determination was not supported by substantial evidence and vacated its decision. The Court of Appeals disagreed,*explaining:

1. Upon judicial review, the Appellate Division "must accord deference to the findings of the administrative decision-maker" noting that "neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact;" and

2. Courts have no right to review the facts generally as to weight of evidence beyond seeing to it that there is substantial evidence.

The substantial evidence standard is a minimal standard said the court, requiring only that a given inference be reasonable and plausible, "not necessarily the most probable." In other words, said the Court of Appeals, "[r]ationality is what is reviewed under the substantial evidence rule" and substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Further, the court opined, "[w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" and if substantial evidence supports the administrative decision being challenged, that determination must be sustained "irrespective of whether a similar quantum of evidence is available to support other varying conclusions."

In addition, the Court of Appeals noted that hearsay is admissible as competent evidence in an administrative proceeding, "and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds."

Ultimately, said the court, it was the province of Potsdam to resolve any conflicts in the evidence and make credibility determinations and ruled that the Appellate Division had improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those made by Potsdam. It then reversed the Appellate Division's order and remitted the matter it "for consideration of issues raised but not determined on the appeal."

* Judge Fahey dissented, stating that he would have sustained the majority opinion of the Appellate Division.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06964.htm

Employment of persons with disabilities and employment of veterans with disabilities

Employment  of persons with disabilities and employment  of  veterans  with  disabilities

Source: New York State Department of Civil Service

The New York State Department of Civil Service's Division of Staffing Services [DSS] has published the following Policy Bulletins:

1. Policy Bulletin 18-01 provides guidelines and procedures for appointing applicants for employment with disabilities pursuant to §55-b of the Civil Service Law by the State.*

The text of Policy Bulletin 18-01 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2018-01.htm

A printable version of Bulletin 18-01 in PDF format is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb18-01.pdf

2. Policy Bulletin 18-02, providing program guidelines and procedures for the employment of disabled  veterans  and  veterans  with   disabilities pursuant to §55-c of the Civil Service Law by the State.

The text of Policy Bulletin 18-02 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2018-02.htm

A printable version of Bulletin 18-02 in PDF format is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb18-02.pdf

** §55-a of the Civil Service Law provides for the employment  of applicants with disabilities by political subdivisions of the State.

N.B. §55 of the Civil Service Law addresses the "Examination  of  blind  or physically handicapped applicants."

Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to have jurisdiction over the claim

Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to havejurisdiction over the claim

2018 NY Slip Op 06844, Appellate Division, Third Department

Claimant, acting pro se, appealed an order of the Court of Claims which granted defendant employer's motion to dismiss the claim.

The Appellate Division's decision indicates that Claimant was placed on involuntary leave due pursuant to Civil Service Law §72 to after being found to be unfit to perform her duties and a danger to her coworkers, Claimant was ultimately terminated from her employment in July 2009 and had filed multiple employment-related discrimination complaints with the Equal Employment Opportunity Commission and commenced subsequent federal actions, each of which was dismissed.

In February 2016, Claimant filed a petition with the Court of Claims seeking damages as the result of alleged adverse and discriminatory employment actions taken by, among other government officials and personnel, various employees of her former employer [Defendant]. In lieu of answering, Defendant moved to dismiss the claim, asserting, among other things, that the Court of Claims lacked subject matter jurisdiction because the claim failed to comply with the substantive pleading requirements of Court of Claims Act §11(b).

The Court of Claims granted defendant's motion and Claimant appealed.

The Appellate Division affirmed the Court of Claims' ruling, explaining that §11(b) of the Court of Claims Act requires that "a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed" in sufficient detail to permit a defendant to investigate and promptly ascertain the existence and extent of its liability."

In contrast, the Court of Claims Act does not require a defendant "to ferret out or assemble information that §11(b) obligates the claimant to allege." Further, said the court, "[s]trict compliance with the pleading requirements contained in Court of Claims Act §11(b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect."

The Appellate Division characterized the claim consisted of "88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim" that would permit Defendant to investigate and promptly ascertain the existence and extent of its liability. As a result, the Appellate Division ruled that Claimant failed to satisfy the pleading requirements of Court of Claims Act §11(b).

Accordingly, said the Appellate Division, the Court of Claims lacked subject matter jurisdiction and properly granted Defendant's motion to dismiss the claim.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06844.htm

Recent disciplinary determinations by the New York State Commission on Judicial Conduct

Recent disciplinary determinations by the New York State Commission on Judicial Conduct

Matter of Astacio, 2018 NY Slip Op 06850, Court of Appeals

Matter of O'Connor, 2018 NY Slip Op 06852, Court of Appeals

The New York State Commission on Judicial Conduct, following hearings, sustained certain charges of alleged misconduct brought against two members of the judiciary and recommended that the jurists be removed from their respective offices. 

The Court of Appeals accepted the Commission's findings and recommended sanctions and removed the jurists from office.

The court's decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06850.htm[Matter of Astacio, Opinion Per Curiam]

http://www.nycourts.gov/reporter/3dseries/2018/2018_06852.htm[Matter of O'Connor, Opinion Per Curiam]

Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"

Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"

Santangelo v Seaford U.F.S.D., 2018 NY Slip Op 06838,

Workers' Compensation Law §114-a, "Disqualification  for  false  representation," provides for the disqualification of a claimant from receiving future wage replacement benefits pursuant to §15 of said law if he or she is found to have made any "false representation" with respect to his or her claim for benefits.

In 2007, Lawrence Santangelo [Claimant] sustained a work-related injury to his "back and right leg" and underwent surgery. Claimant, however, continued to complain of chronic back pain and reported that he experienced numbness and weakness in his "left leg," which necessitated that he walk with the use of a cane or knee brace. The Workers' Compensation Board ultimately classified Claimant as having a "permanent total disability."

In 2016, the Claimant's former employer's workers' compensation carrier reopened the case, raising the issue of whether Claimant violated WCL §114-a.

Claimant's medical records indicated that "he was in constant pain, required use of a cane or knee brace on a daily basis and was severely impacted in his ability to stand and walk — at times grabbing the wall for stability."

However, surveillance videos of Claimant between August 2015 and March 2016 showed Claimant "walking without a limp, standing and driving for extended periods of time, bending over to do repair work under the hood of a vehicle, and lifting items, such as a car battery, a floor jack and an automobile tire, from the bed of his truck."

In addition, "the only time during the surveillance period that Claimant was observed using a cane or knee brace was during a medical appointment" although later that same day Claimant was observed "walking normally without any assistive device."

The carrier's medical expert testified that Claimant's unrestricted movements and activities depicted on the surveillance videos were inconsistent with complaints of pain and reported limitations expressed by Claimant during the examinations.

After reviewing surveillance video and hearing testimony, a Workers' Compensation Law Judge [WCLJ] ruled that Claimant had violated WCL §114-a and disqualified him from receiving future benefit payments. The Workers' Compensation Board affirmed the WCLJ's decision and denied Claimant's subsequent request for full Board review and, or, reconsideration. Claimant appealed both decisions.

The Appellate Division sustained the Board's decisions, finding that Claimant made false representations regarding material facts and that the Board's ruling was supported by substantial evidence.

The court also rejected Claimant's argument that the Board's decision sustaining the WCLJ's ruling was inconsistent with its 2009 decision, noting  "that the 2009 decision was superseded by a 2012 decision and, in any event, is irrelevant to the issue as to whether [C]laimant subsequently violated WCL §114-a."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06838.htm

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06738, Appellate Division, Second Department, [Decided with Matter of Yonkers Firefighters v City of Yonkers, Appellate Division Docket No. 2016-02470]

[See, also, City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06750, Appellate Division, Second Department and City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06751, Appellate Division, Second Department]

On December 4, 2014, Yonkers Firefighters, Local 628, International Association of Fire Fighters, AFL-CIO, [Local 628], filed a demand for arbitration alleging that Christopher Giardini had been improperly terminated from the position of firefighter in violation of a collective bargaining agreement with the City of Yonkers [City]. Two weeks later, Local 628 commenced a proceeding pursuant to CPLR Article 78 to review the determination of the City terminating Giardini's employment.

Local 628 actively prosecuted both arbitration and the Article 78 action. On September 26, 2015, an arbitration award*in favor of Local 628 and the on December 23, 2015, the City commenced proceeding pursuant to CPLR Article 75 to vacate the September 26, 2015, arbitration award, alleging, among other things, that the arbitrator lacked authority to arbitrate the dispute because Local 628 had waived arbitration of the dispute by commencing and prosecuting the CPLR Article 78 proceeding it initiated in December 2014.

Supreme Court granted the City's petition and vacated the arbitration award. Local 628 appealed Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, noting that a right to arbitration may be modified, waived or abandoned "[w]here a party affirmatively seeks the benefits of litigation, in a manner clearly inconsistent with [its] claim that the parties were obligated to settle their differences by arbitration...." Further, said the court, "[O]nce waived, the right to arbitrate cannot be regained, even by [a] respondent's failure to seek a stay of arbitration."

Here, said the court, Local 628, by commencing an action at law involving arbitrable issues, it waived whatever right it had to arbitration. Accordingly, ruled the Appellate Division, because Local 628 commenced the CPLR Article 78 proceeding during the pendency of the arbitration the City correctly argued that Local 628 waived its right to arbitration as a result and the arbitrator should not have conducted the arbitration. As a result the award exceeded the arbitrator's authority and the Appellate Division concurred with the Supreme Court's determination granting the petition and vacating the arbitration award. 

* The arbitrator ruled that that Giardini's employment as a probationer had become permanent prior to the termination of his employment notwithstanding interruptions in his performance of his firefighter duties during his probationary period due to injuries suffered in the line of duty and directed his reinstatement to the position of firefighter with back pay. However, it should be noted that in the event an employee injured on the job is given a "light duty assignment," as was the case with respect to Giardini, the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes. In Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601, the court held that an injured firefighter may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of "light duty."

A NYPPL Note: The Boyle court reversed a decision which had granted Boyle, and another New York City firefighter, tenure one year after the effective date of their respective permanent appointments. The reversal of the earlier ruling was based on the concept that the probationary period is designed to determine the fitness of the employee for tenure on the basis of his or her job performance. A worker who is absent because of a disability, work-connected or not, or one who is performing "light duty," is not able to satisfy this requirement as he or she cannot be evaluated with respect to his or her actual performance of the duties of the position. Although the firefighters had been in service for one year, they had spent only two or three months performing the full duties of their positions. They were absent on sick leave or assigned light duty for the balance of the time. The opinion concludes with the following observation: "To be sure, any probationer who is injured in service should be granted the protections to which he or she is entitled, such as sick-leave benefits and the opportunity to apply for disability retirement. The grant of tenure, however, to an employee who does not successfully complete a probationary period frustrates the function of probation, and undermines the constitutional requirement that appointments be based on merit and fitness."

The Local 628 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06738.htm

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Appellate Division, Second Department

Anthony Johansmeyer and others [Petitioners] sued the New York City Department of Education and the City of New York [jointly DOE] and Child Center of New York [CC] to recover damages for negligent hiring, supervision, and retention of a member of CC's staff [Employee] alleged to have inflicted acts of sexual abuse and molestation on an infant student. The defendants' motions for summary judgment dismissing the complaint as asserted against each of them was denied by Supreme Court, which ruling was sustained by the Appellate Division.

The Appellate Division explained that "Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business," citing Fernandez v Rustic Inn, Inc., 60 AD3d 893, an employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.

However a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and the employer's negligence lies in having " placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention'" of the employee.

With respect to DOE, the Appellate Division said DOE "failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision" of Employee and its submissions in support of its motion for summary judgment "raised a triable issue of fact as to whether the DOE took the appropriate measures" to evaluate Employee's "employment and fitness at the time he was allowed to intern at the school." In addition, said the court, there was a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Employee "placed [Employee] in a position to cause foreseeable harm."

The court also noted that, in general, liability may not be imposed on school authorities where all of the improper acts against a student occurred off school premises and outside school hours. Here, however, the Appellate Division said that DOE's submissions demonstrated that, although the sexual abuse ultimately occurred in the infant's home," it was preceded by time periods when the infant was alone with Employee during school hours on a regular basis. Thus, triable issues of fact exist as to whether the DOE knew or should have known of such behavior and Employee's propensity for sexual abuse.

The Appellate Division also agreed with Supreme Court's denial CC's cross motion for summary judgment, noting that although CC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring by submitting the deposition transcript of its administrative director, Plaintiffs had raised a triable issue of fact by submitting Employee's Child Center employee records which indicated that Child Center never checked references, clearances, proof of education, or New York State Sex Offender Registration records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06518.htm

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm