The statute of limitations for filing an Article 78 petition challenging an regulation adopted by a government entity starts to run on the effective date of the regulation

General Municipal Law §209-q(1)(a) requires that individuals satisfactorily complete an approved municipal police basic training program prior to appointment as a police officer on a permanent basis. A certificate of completion issued upon completion of an approved training course remains valid, as relevant in this appeal, during the holder's continuous service as a police officer and during certain specified periods of "interruption" from service (see General Municipal Law §209-q[1][b]).* The State's Division of Criminal Justice Services [DCJS] is required by law to maintain a registry of all full-time and part-time police officers in the State and all agencies employing police officers are required to immediately report to DCJS when any officer it has employed ceases to so serve.

Executive Law §837[13] authorizes DCJS to adopt such regulations "as may be necessary or convenient to the performance of its duties." DCJS had adopted regulations requiring an agency employing police officers immediately notify DCJS when a police officer it had employed ceased to serve as a police officer and to indicate the reason for his or her ceasing to serve as a police officer, including reporting his or her "removal for cause".** 

Removal for cause included, as relevant in this action, resignation while a disciplinary proceeding was pending against the police officer pursuant to Civil Service Law §75 or pursuant to another statute or a contract disciplinary procedure negotiated pursuant to the Taylor Law.***

Among the issues addressed by the Appellate Division in this action was the effective date of a regulation adopted by DCJS for the purposes of determining the statute of limitations for timely filing a CPLR Article 78 petition seeking to annul a determination made by DCJS pursuant to the challenged regulation.

In April 2018, two former police officer [Plaintiffs] initiated proceedings and actions for declaratory judgments seeking to annul DCJS's determinations to invalidate their respective police officer basic training certificates. Supreme Court "converted these proceeding/action to a CPLR Article 78 proceeding upon consent of the parties" and then dismissed the Article 78 action as untimely. Plaintiffs appealed.

The Appellate Division noted that although the parties concede that this proceeding was governed by the four-month statute of limitations set forth in CPLR §217(1), they disagree as to when their respective causes of action arose and, in the words of the court, "their claims for relief are ultimately grounded on challenges to the validity of the regulations that were promulgated by DCJS in 2016 and 2017" in consideration of their status as police officers.

Citing Thrun v Cuomo, 112 AD3d 1038, the Appellate Division opined that as the challenged regulations "were quasi-legislative acts ... challenges to the validity of regulations accrued when the regulations become effective." Accordingly, explained the court, "inasmuch as the regulations became effective more than four months before this proceeding was commenced, Supreme Court properly found that [Plaintiffs' claims are time-barred."

Addressing an argument raised by one of the Plaintiffs whereby the Plaintiff asserted that he had submitted "his irrevocable resignation letter" on September 19, 2016 and that it had expressly provided that his resignation would be effective on October 31, 2016, five days after the regulations were adopted, the Appellate Division observed that the resignation was submitted in settlement of disciplinary charges that could have resulted in Plaintiff's removal.

Thus, said the court, Plaintiff's "arguments that he resigned before the regulations were enacted or, alternatively, that no disciplinary charges were pending on the effective date of his resignation are precluded by his acceptance of the benefits of the settlement, namely, being permitted to resolve the pending disciplinary charges by resigning and his further receipt of employment benefits from September 19, 2016 through the effective resignation date of October 31, 2016." 

* Interruption means separation from employment as a police officer "by reason of such officer's leave of absence, resignation or removal, other than removal for cause" (see General Municipal Law §209-q[1][c]).

** See 9 NYCRR 6056.2(g), employees removed for incompetence or misconduct.

*** 4 NYCRR 5.3(b) provides in pertinent part, "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Also, where necessary and appropriate, such disciplinary action may be conducted in absentia [see Mari v Safir, 291 AD2d 298].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04524.htm

Selection of a medical officer to examine an employee terminated from her position pursuant to §72.5 of the Civil Service Law to determine the individual's "fitness for reinstatement" to the position

An individual [Plaintiff] was placed on "ordinary disability leave" involuntarily by the appointing authority pursuant to Civil Service Law §72(5).* About two years later Plaintiff was terminated from her position by the appointing authority pursuant to Civil Service Law §73.**

When she sought to be reinstated to her position the Department of Citywide Administrative Services (DCAS) designated an outside entity, JurisSolutions, to provide a medical officer to examine Plaintiff to determine her fitness to return to duty. Following the medical examination, Plaintiff filed a CPLR Article 78 petition contending that the physicians that had conducted her fit-for-duty evaluation were unqualified.

The Appellate Division dismissed Plaintiff's cause of action, holding that DCAS did not improperly delegate its duty to select a medical officer to an outside entity, JurisSolutions.

Both Civil Service Law §72(1) and §73 essentially provide that "When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability . . . the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction."

The court, noting that neither §72(1) or §73 mandates any method that the "civil service department or municipal commission having jurisdiction" must use to select the medical officer, and nothing in the text prohibits DCAS from employing a procurement process to select the medical officer who will conduct the evaluation.

The Appellate Division then cited Lazzari v Town of Eastchester, 20 NY3d 214, a case involving a public employee on "worker's compensation leave" pursuant to §71 of the Civil Service Law, in which the Court of Appeals opined "Although Civil Service Law §71 does not indicate to whom the certification must be made, read in context, it is clear that the certification is made to the Department of Human Resources acting as a civil service commission, the body that arranges for the examination and to whom the results of such an examination are reported. Indeed, the purpose of section 71 is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight."

The Appellate Division, noting that "Although JurisSolutions provides the doctors, DCAS maintains complete control over the selection process," rejected Plaintiff's contention that the doctors that conducted her fit-for-duty evaluation were unqualified as not being supported by the record, and the hearing officer's determinations concerning the doctors' credibility should not be disturbed.

* Civil Service Law §72(5), in pertinent part, provides "Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it  may place such employee on involuntary leave of absence   immediately."

** Civil Service Law §73 of the Civil Service Law provides, in pertinent part, "When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law, his employment status may be terminated and his position may be filled by a permanent appointment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04658.htm

Failure to provide a brief adjournment of an administrative disciplinary hearing to permit the attorney for the accused to be present held an abuse of discretion

A State University of New York [SUNY] student [Student] was served with multiple disciplinary charges alleging misconduct. At the commencement of the scheduled administrative disciplinary hearing Student requested a three-hour adjournment of the  hearing so that his attorney could attend the proceeding. SUNY denied Student's request and proceeded with the disciplinary hearing notwithstanding the absence of Student's attorney.

Student ultimately challenged SUNY's decision and the Court of Appeals, reversing a ruling by the Appellate Division to the contrary, annulled SUNY's disciplinary determination and remanded the matter to the Appellate Division, indicating that should SUNY elect to proceed with the disciplinary action, it must hold a new disciplinary hearing.

The Court of Appeals explained that in consideration of "the particular circumstances of this case" it had found that SUNY had abused its discretion, as a matter of law, when it declined to grant the adjournment Student had requested to permit his attorney to be present at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04449.htm

Appellate Division reviews an administrative disciplinary determination by the Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs

While most administrative disciplinary actions involving public sector employees are presently processed in accordance with the terms and conditions set out in a collective bargaining agreement, in some instances other laws, rules and regulations will control. 

The O'Grady decision by the Appellate Division, the full text of which is set out below, illustrates one such type of administrative disciplinary procedure and the individual's appeal from a determination made after hearing by the appointing authority conducted pursuant to Social Services Law §494 and 14 NYCRR 700.6[a]:

Matter of O'Grady v Kiyonaga

2019 NY Slip Op 04170

Decided on May 29, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Todd L. Crawford, P.C., Roosevelt, NY, for petitioner.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Linda Fang of counsel), for respondent.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of David Molik, Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs dated August 5, 2016. The determination adopted the findings of fact and conclusions of law of an Administrative Law Judge dated July 13, 2016, made after a hearing, that the petitioner committed category three neglect as defined by Social Services Law §493(4)(c), and denied the petitioner's request that the subject substantiated report of neglect dated November 25, 2014, be amended and sealed.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner is a teacher who was employed, at relevant times, by Ferncliff Manor School (hereinafter Ferncliff Manor), a facility that is certified by the Office of People with Developmental Disabilities. In 2013, the New York Justice Center for the Protection of People with Special Needs (hereinafter the Justice Center) received a report alleging that the petitioner committed neglect by, inter alia, failing to properly supervise a service recipient (hereinafter the student) on September 10, 2013. The report alleged that the petitioner failed to properly monitor the actions of the student on a playground on the Ferncliff Manor property and that the student absconded from the property and reached a nearby street, where he was found by a bystander who placed him into a vehicle.

Following an investigation by the staff of Ferncliff Manor, the Justice Center substantiated the allegation of neglect in a report dated November 25, 2014. The petitioner exercised her right to a hearing before an Administrative Law Judge (see Social Services Law §494; 14 NYCRR 700.6[a]). The Administrative Law Judge found, upon the hearing, that a preponderance of the evidence showed that the petitioner committed a category three act of neglect (see Social Services Law §§493[3][a][i]; [4][c]; 494[1][a]; 14 NYCRR 624.5[j][1][i]; 700.4-700.5). David Molnik, Director of the Administrative Hearings Unit of the Justice Center, adopted the Administrative Law Judge's findings and recommended decision and denied the petitioner's request to amend and seal the substantiated report (see 14 NYCRR 700.13[a]). The petitioner commenced this proceeding against Jay Kiyonaga, individually and as Acting Executive Director of the Justice [*2]Center, pursuant to CPLR 78 to review that determination. By order dated June 28, 2017, the Supreme Court, Westchester County, transferred the proceeding to this Court pursuant to CPLR 7804(g).

In this proceeding, the petitioner seeks to annul the determination of the Justice Center, contending that it was not supported by substantial evidence (see CPLR 7804[g]). Social Services Law § 488(1)(h) defines neglect as "any action, inaction or lack of attention that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient." Social Services Law §493(4) sets forth, as relevant, three categories of reports of abuse or neglect perpetrated by a custodian. The particular category designation depends on the nature and severity of the conduct, and each category carries with it different consequences (see Matter of Anonymous v Molik, 32 NY3d 30, 35-36). Category one is limited to a specified list of "serious physical abuse, sexual abuse or other serious conduct" (Social Services Law §493[4][a]), and category two contains conduct that "seriously endangers the health, safety or welfare of a service recipient" (Social Services Law § 493[4][b]). The third category encompasses all other acts of abuse or neglect that do not rise to the level of conduct as "described in categories one and two" (Social Services Law §493[4][c]).

At an administrative hearing to determine whether a report of category three neglect is substantiated, the Justice Center is required to establish, by a preponderance of the evidence, that the subject committed abuse or neglect (see Matter of Anonymous v Molik, 32 NY3d at 34). Upon review of such an administrative determination made after an evidentiary hearing, the determination of the Justice Center must be upheld if supported by substantial evidence (see CPLR 7803[4]; Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d 1355, 1356-1357).

Here, the determination of the Justice Center was based on substantial evidence. The hearing evidence showed, inter alia, that prior to this incident, the staff at Ferncliff Manor developed a mandatory Individual Plan of Protective Oversight (hereinafter IPOPO) for the student. That IPOPO, which was developed with input from teachers and other professionals, provided, inter alia, "[l]ine of sight - staff is to be within 3 feet of [the student] due to hyperactivity, impulsivity and running," and indicated that the student was at a "HIGH RISK" for "running/wandering away." The IPOPO defined the term "line of sight" as follows: "Staff will ensure the individual is always within their line of sight. This does not mean the staff member needs to be constantly looking at the student/resident, but rather be able to see the person at any given time."

The hearing evidence showed that at the time of this incident, there were four staff members supervising the student and his five classmates, as was required by the policy of the facility: the petitioner teacher and three aides. The petitioner acknowledged that she was not directly watching the student when he absconded, and that she did not see the student abscond from the playground. The student was not located until after he had crossed the playground, breached a fence, run to a nearby street, and encountered the individual who placed him in a vehicle. Notably, the petitioner did not testify that she had directed any of her aides to specifically supervise the student at the time of the incident.

Under these circumstances, substantial evidence supports the determination of the Justice Center that the petitioner committed category three neglect (see Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d at 1356-1357; see also Matter of Kelly v New York State Justice Ctr. for the Protection of People with Special Needs, 161 AD3d 1344).

Therefore, the determination should be confirmed, the petition denied, and the proceeding dismissed on the merits.

SCHEINKMAN, P.J., DILLON, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

State Medicaid paid for erectile dysfunction drugs for sex offenders

Lax oversight over erectile dysfunction drugs for sex offenders was not the only problem. The Comptroller also noted that other Medicaid patients get drugs they shouldn't have otherwise obtained.

The state’s Medicaid program paid more than $60,000 for sexual and erectile dysfunction (ED) drugs and treatments for 47 sex offenders, according to an audit released on June 5, 2019 by State Comptroller Thomas P. DiNapoli. In total, Medicaid made more than $930,000 in payments for ED drugs and treatments for recipients, including sex offenders, that are barred under Medicaid.

“There are clear rules about what conditions Medicaid will cover when it comes to erectile dysfunction drugs. And paying for sex offenders who’ve committed terrible crimes to get these drugs should never be lost in the bureaucratic administration of this program,” DiNapoli said. “Nearly two decades ago this office identified this problem, which led to national and state changes. While the state Department of Health immediately followed up to make corrections during the course of our audit, our auditors found that the problem persisted and needed to be fixed.”

In 2005, a review by the Office of the State Comptroller determined that Medicaid paid for the erectile dysfunction drug Viagra on behalf of 198 recipients who were registered sex offenders classified as level-3 (most likely to reoffend). Given the risk to public safety, the review sparked an overhaul of legislation at the federal and state levels to ensure such drugs are not paid for by Medicaid.

Current federal and state laws prohibit Medicaid from paying for drugs to treat sexual or erectile dysfunction for Medicaid recipients, including registered sex offenders. State law additionally prohibits payment for procedures or supplies to treat ED for registered sex offenders.

In 2011, Medicaid pharmacy benefit management for managed care recipients was transferred from DOH to managed care organizations (MCOs). DOH directed MCOs on how to handle ED drug exclusions and indicated uses. Under managed care, MCOs are expected to police the drugs Medicaid recipients enrolled in their plans can get and to determine their medical necessity.

Auditors found that did not always happen. Since the transition of pharmacy benefit management to MCOs, Medicaid continued, primarily under managed care, to fund drugs, procedures, and supplies that enhance sexual and erectile function for recipients, including registered sex offenders.

DiNapoli’s auditors found that from April 1, 2012 to July 1, 2018, Medicaid made $2.8 million in payments for ED drugs approved to also treat Benign Prostatic Hyperplasia (BPH) or Pulmonary Arterial Hypertension (PAH) on behalf of patients who did not have such diagnoses listed on their medical claims submitted up to six months before receiving the prescriptions. These claims indicate an elevated risk that the drugs may have been abused or sold to others. Among those payments, 411 recipients had a diagnosis of ED (but no BPH or PAH diagnosis) on their claims, totaling $207,256 in Medicaid payments.

Similarly, Medicaid paid $285,641 for ED drugs approved to also treat BPH or PAH for 14 sex offenders (see table 3 in audit), 11 of whom were classified as a level-2 or a level-3 sex offender. Auditors reviewed the medical records of 13 of the 14 sex offenders to determine if the records supported a diagnosis of BPH or PAH and found 31 percent, or four of 13 cases, supported only a diagnosis of ED. One case was indeterminate.

DOH did not monitor the use of ED drugs, procedures, and supplies, including payments by MCOs. The audit and the department’s analyses both indicate a large portion of MCO claims for ED drugs approved to treat other medical conditions lack assurance of medical necessity. MCOs made most of the payments the auditors reported on.

DiNapoli’s auditors found some MCO controls are not designed to effectively prevent sex offenders from obtaining treatment for ED. Specifically, after a recipient obtains ED treatment, if an MCO finds out the recipient is a registered sex offender, the MCO merely does not pay for the services when other steps could be taken to prevent sex offenders from obtaining them.

Auditors further found DOH’s eMedNY computer payment system also incompletely incorporated controls to prevent covering ED procedures and supplies for convicted sex offenders. Consequently, Medicaid fee-for-service inappropriately paid $27,288 for 21 excluded ED procedures and supplies provided to 15 sex offenders (at least 6 of the 15 were classified as level-2 or level-3 sex offenders).

DiNapoli recommended DOH:

• Review the payments identified by auditors and ensure recoveries are made from providers, as appropriate;

• Regularly provide MCOs with detailed lists of all ED drugs, procedures, and supplies that are excluded or have limited Medicaid coverage;

• Periodically monitor coverage, utilization, and payment of ED drugs, procedures, and supplies; and take corrective actions to ensure compliance with laws, policies, and procedures; and

• Improve DOH’s eMedNY computer system controls to apply sex offender status in the processing of certain claims and prevent the processing of incomplete electronic Division of Criminal Justice Services sex offender registry files.

In its response to the audit, DOH indicated the actions it would take to correct the issues found. The department’s complete response is included in the audit.

Click report to read the DOH's response to the Comptroller's audit  or go to https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18s16.pdf.

To find out how your government money is being spent go to Open Book New York. 

Judicial review of an arbitration award resulting from compulsory arbitration stricter than judicial review of an award resulting from voluntary arbitration

The Appellate Division unanimously affirmed a Supreme Court's granting the petition of the Board of Education to vacate an arbitration award and the penalty imposed by an arbitrator and remanded the matter to different "appropriate arbitrator" on the panel established to hear cases involving allegations of teacher misconduct.

Ruling that the lower court "correctly vacated the arbitration award in this disciplinary action," which was subject to compulsory arbitration, the Appellate Division explained that judicial review is "stricter (for compulsory arbitration) than for a determination rendered (after) ... voluntary arbitration". Here, said the court, the record supports the Supreme Court's conclusion that the arbitrator's opinion and award was not only irrational, but also arbitrary and capricious.

The Appellate Division noted that the administrative record supported the lower court's determination to sustain all charges and specifications filed against the educator, two of which were based the teacher's conduct and statements, "which threatened physical violence and placed at least one child in fear of his physical safety."

The court also sustained the Supreme Court's upholding the specification of misconduct charging certain students who were the target of the teacher's racist comments "could not have been 'unaffected' by the statements, which were far from 'benign' or 'uplifting,' as characterized by the arbitrator."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04297.htm

Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "settled" the subsequent disciplinary action taken against the officer by entering into a "stipulated agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

Prior to the expiration of his disciplinary probationary period the police officer arrested on assault charges and later dismissed from his position. Later still, the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.**

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be been dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals termination, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylorwas subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

Agreeing with the Supreme Court justice that Green failed to prove the existence of any basis for granting the relief he sought,  the Appellate Division dismissed his appeal.

* A plea by which a defendant in a criminal prosecution accepts conviction as though a guilty plea had been entered but does not admit guilt. A plea of "nolo contendere," has the same primary legal effects as a guilty plea.

** Robert Green, Jr.  v. New York City Police Department et al., 235 AD2d 475.  Rejecting the police officer demand for "a name-clearing hearing," the Appellate Division explained that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122ad2d8852320

Rejection of an applicant for appointment as a police officer based on a finding that the applicant was psychologically unfit for the position

Supreme Court granted the appointing authority's [Employer] motion to dismiss a CPLR Article 78 petition filed by an applicant [Plaintiff] for appointment as a police officer seeking to annul the Employer's decision not to certify Plaintiff for appointment dismissed the proceeding.

Plaintiff appealed the Supreme Court's ruling, arguing that the Employer's determination to disqualify him for appointment to the position was arbitrary and capricious.

The Appellate Division disagreed and sustained the Supreme Court's decision. In the words of the Appellate Division, the Employer's determination "was not arbitrary and capricious and had a rational basis." Citing Matter of City of New York v New York City Civ. Serv. Commn., 61 AD3d 584, the court explained the Employer "has wide discretion in determining the fitness of candidates[,] . . . particularly . . . in the hiring of law enforcement officers, to whom high standards may be applied," noting that the Employer had "reasonably relied on the findings of two psychologists, both of whom, after interviewing the Plaintiff, concluded that, for a variety of reasons, Plaintiff "was psychologically unfit for the position of police officer."

As Plaintiff had neither demonstrated [a] the existence of a triable issue of fact but only advanced unsubstantiated allegations and speculation concerning the motives of the psychologists who recommended denial of his application nor [b that further discovery was warranted under the circumstances, the Appellate Division unanimously dismissed Plaintiff's appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03740.htm

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."

The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03921.htm

Individuals receiving public assistance injured while working in a work experience program are eligible for Workers' Compensation benefits

A recipient of public assistance [Claimant] filed a claim for workers' compensation benefits after sustaining an injury while assigned to work for the County as part of a work experience program [WEP]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] established the claim for a work-related injury, finding that Claimant's average weekly wage was $124.62.  The Claimant did not return to work but was not paid a workers' compensation benefit for lost wages because he was receiving his regular public assistance benefit. The WCLJ, however, kept the claim open for further medical evidence regarding permanency of the injury and schedule loss of use.

Claimant subsequently asked that his claim for lost wage benefits be reopened because his public assistance benefit had been suspended due to a change in the composition and income of his household. Ultimately the County asked Workers' Compensation Board [Board] to review the matter, contending that Claimant's public assistance that he received during his work experience program assignment should not be treated as wages for the purpose of calculating a workers' compensation award.* The Board, however, ruled, in part, that public assistance benefit payments made to a claimant pursuant to a WEP constituted wages under the Workers' Compensation Law. The Board and its third party administrator appealed but the Appellate Division dismissed the appeal "as interlocutory."**

A second hearing was then was conducted and the WCLJ found that Claimant had sustained a 7.5% "schedule loss of use" that entitled him to 18.3 weeks of benefits. Ultimately Claimant was awarded $1,830 and the Board concluded that the entire award was payable as a credit to the County. The County and its third-party administrator again appealed the Board's ruling, contending that Claimant is not entitled to any "lost-wage benefits" award because the public assistance benefit that he received was not a "wage" as defined by Workers' Compensation Law §2(9).

After an extensive legal analysis of the matter by the Appellate Division "under well-settled principles of statutory interpretation," the court concluded that the provisions of the "applicable statutory scheme must be construed together and harmonized" in a way that renders them compatible and achieves the legislature's intent rather than to consider the definition of the term wage or wages "in isolation."

Observing that a recipient of public assistance may be required to participate in work activities, including experience working in the public sector, the court opined that "[t]he amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage." 

Significantly, the decision notes that the fact that recipients of public assistance must participate in a WEP to receive benefits without reduction "means that the public assistance paid to WEP participants directly serves as compensation for the work performed."

Holding that public assistance benefits paid to WEP participants are wages as defined in the Workers' Compensation Law, the Appellate Division opined that its ruling was consistent with the Court of Appeals' observation that the "rate and method of payment of WEP workers is determined by the Social Services Law."***

The decision concluded with the observation that providing awards for WEP participants "injured on the job" also benefits those who host WEP participants "by ensuring that workers' compensation is [a WEP participant's] exclusive remedy for injuries [he or she] sustained in the workplace."

*  While Board review was pending, a WCLJ determined that there was insufficient medical evidence to support an award.

** See 146 AD3d 1065. As a general rule, a party does not have a right to appeal a court's interlocutory order or an interlocutory decision.

*** See Matter of Carver v State of New York, 26 NY3d 272

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03870.htm

An objection to a statement in a court's opinion that is determined to be "dicta" does not provide a basis for appeal

The views of a judge expressed in his or her opinion that do not have any impact or are required for the resolution or determination of a specific case before the court are referred to as dicta. They constitute statements in a court's opinion that go beyond the facts before the court and thus only reflect only the views of the writer of the opinion and although they might be interesting, and possibly instructive, they are not binding in subsequent cases as legal precedent. This appeal from a CPLR Articel 78 decision by Supreme Court concers an appeal of a statement by Supreme Court that the Appellate Division deemed to constitute dicta. 

College student A, attending College X, filed a complaint pursuant to College X's "Student Sexual Misconduct Policy" [Policy] alleging that another college student [Student B] attending College Y had violated the Policy during an incident that occurred off-campus. College X subsequently advised Student B that, after a thorough investigation, it had determined, by a preponderance of the evidence, that Student B had violated College X's Policy and that College X would contact College Y and provide it with a redacted copy of the investigation report and record documents.

Student B initiated a CPLR Article 78 proceeding seeking, among other things, [1] to annul College X's determination, contending that it was arbitrary and capricious and [2] to enjoin College X from giving the complaint and investigation record to College Y.

Supreme Court granted Student B's petition, finding that, because petitioner was not a student at College X and the alleged misconduct took place off campus, College X lacked jurisdiction under the Policy and, as such, College X's  determination was arbitrary and capricious.  In addition, Supreme Court opined that it "f[ound] that the conduct demonstrated by [College X] towards [Student B] during the initial course of this investigation was a clear violation of [Student B's] constitutional rights."

College X appealed the Supreme Court's ruling but only for the purposed of vindicating itself with respect to that part of the Supreme Court's decision that stated that College X had violated Student B's constitutional rights.

The Appellate Division, noting that College X did not challenge Supreme Court's holding that its decision was arbitrary and capricious, concluded College X's appeal sought only to vacate that part of the Supreme Court's decision finding that College X violated Student B's constitutional rights,

The Appellate Division, citing Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, pointed out that the focus of College X's appeal, therefor was appealing dicta, as the inclusion of that statements was "not necessary to resolve [the] issue." On the other hand, noted the Appellate Division, College X did to challenge Supreme Court's holding that College X's actions in this instance were arbitrary and capricious. As "disagreement with dicta does not provide a basis to take an appeal" the court said that "this issue is not properly before us", implying that neither was the issue concerning Supreme Court's holding that College X's actions were arbitrary and capricious as College X had not appealed that branch of the Supreme Court's ruling.

Although Student B, in effect, prevailed in the appeal of the Supreme Court's ruling filed by College X, the Appellate Division declined to issue sanctions, explaining that although [College X's] argument lacks merit, we do not find it to be frivolous."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03872.htm

Establishing a violation of a right to substantive administrative due process

The Plaintiffs in this action were formerly civil immigration detainees at the Orange County Correctional Facility [Jail] where they were treated for serious mental illnesses. Alleging that Orange County and some of its agencies and officials [Defendants] failed to provide planning for, or discharge plans upon release,* violated their substantive due process rights under the Fourteenth Amendment, Plaintiffs initiated litigation in United States District Court seeking relief under 42 U.S.C. §1983. The district court granted the Defendants’ motion to dismiss the complaint and Plaintiffs appealed .

The United StatesCourt of Appeals, Second Circuit, vacated the district court's ruling and remanded the matter to the district court for "further proceedings," finding that Plaintiffs "stated a plausible claim for relief under the Fourteenth Amendment for deliberate indifference to their serious medical needs."

Plaintiffs' complaint alleged that the Defendants were responsible for providing them with medical care while they were detained at a county detention facility [Jail] that houses civil immigration detainees pursuant to an intergovernmental agreement between Immigration and Customs Enforcement [ICE] and Orange County.**

Defendants asked the Circuit Court to dismiss the Plaintiffs' entire Complaint for failure to state a claim, contending that "there is no established substantive due process right to the post-release measures inherent in discharge plans." The Defendants argued that the government’s duty of care ends "the instant the inmate walks through the prison gates and into the civilian world, because that is when the inmate’s ability to secure medication or care on his own behalf is restored" to him or her."

Noting that "[t]his Court ... has never held that the state’s duties to an inmate or detainee extend beyond their release" ... Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential part of mental healthcare in institutional settings” and “Defendants are constitutionally obliged to provide Plaintiffs with adequate medical care while they are confined to immigration detention.”

Taking Plaintiffs’ allegations as true and drawing all reasonable, the Circuit Court said that it found that Plaintiffs "have plausibly alleged that discharge planning is an essential part of in-custody care" and concluded that despite the forward-looking nature of discharge planning, a claim for damages caused by the lack of it can be considered a claim for deprivation of in-custody care for purposes of the “special relationship” exception. However,  on remand it will be necessary for Plaintiffs to prove to a fact-finder that "the care they complain of is the type that should have been provided to  them during their detention."

Citing Pena v. DePrisco, 432 F.3d 98, the court explained that "those in civil detention, as were Plaintiffs in this case, are also afforded a right to be free from deliberate indifference to their serious medical needs." Further, "in order to establish a violation of a right to substantive due process, such a plaintiff must demonstrate not only government action but also that the government action was so ‘egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'”

While remaining the matter for factual development as Plaintiffs have adequately stated a claim, this does not mean that Plaintiffs have established their entitlement to relief and the will need to provide evidence to support their allegations. Further, opined the court, "Defendants have raised significant factual issues that need to be fleshed out through discovery, including whether the discharge planning measures Plaintiffs identify should be provided as part of in-custody care (rather than undertaken upon or after release), the medical effects of a temporary deprivation of psychotropic medication, the causal relationship between the alleged interruption in Plaintiffs’ treatment and the consequences they complain of, and whether the circumstances of Plaintiffs’ release were so unexpected that Defendants could not have anticipated, and properly planned for, their release at the time it occurred."

However, at this, the pleading stage, the Circuit Court indicated that it has simply held that Plaintiffs have adequately stated a Fourteenth Amendment substantive due process claim justifying vacating the district court's opinion and remanding the matter for "proceedings consistent with this opinion." The Circuit also noted that the district court, in addition, may consider various issues it did not reach in its opinion such as (1) whether the Plaintiffs adequately pled a county policy, practice, or custom for purposes of Monell liability***; (2) whether Plaintiffs have adequately stated a claim against [a named Defendant]; and (3) whether [that named Defendant] is entitled to qualified immunity.****

* Plaintiffs alleged that discharge planning is a routine and necessary component of institutional mental health treatment.

** The decision notes that the policies and protocols governing Defendants and others providing treatment at the Jail themselves demand such discharge planning. Both ICE and Orange County have written policies recognizing that mental health discharge planning is an essential component of mental health treatment in institutional settings.

*** Under Monell v. Department of Social Serv., 436 U.S. 658 (1978), a municipal government can be held liable under Section 1983 if a plaintiff can demonstrate that a deprivation of a federal right occurred as a result of a "policy" of the local government's legislative body or of those local officials whose acts may fairly be said to be those of the municipality.

**** "Qualified immunity" protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8d3b6f5e-d0bf-47c4-b631-a629c71a2763/1/doc/17-3506_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d3b6f5e-d0bf-47c4-b631-a629c71a2763/1/hilite/