Exceptions to the "going and coming" rule in determining if an injured employee was performing his job duties at the time he suffered an injury

A state park police officer [Claimant] filed an application for performance of duty disability retirement benefits with the New York State and Local Police and Fire Retirement System [System] alleging that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.

The System denied Claimant’s application, finding that he failed to establish permanent incapacitation. Claimant requested a hearing and redetermination of the Systems determination. The designated Hearing Officer sustained the System’s the denial of Claimant’s application, finding that the Claimant was not in service at the time he suffered his injuries. The Comptroller accepted the Hearing Officer’s findings and conclusions and the Claimant filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division commenced it review of Claimant’s appeal by noting that the claimant bears the burden of proving that he was "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service" and the individual “was performing job duties at the time of the injury.”*

The court then noted that at the hearing Claimant testimony “made apparent that he was actually on his way into work at the time of his injury, not ‘on duty and at work’ as he stated in his application for benefits.” In the words of the Appellate Division, “[Claimant’s] own testimony establishes that he slipped and fell on icy stairs on his way into work prior to the start of his shift, and we have upheld findings that an employee who is injured before reporting for work and commencing his or her duties is not ‘in service’ when the injuries were sustained.”

Thus, said the court, the Comptroller's determination that claimant was not in service at the time he sustained his injury is accordingly supported by substantial evidence, and it declined to disturb it.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

In Neacosia v NY Power Authority, 85 NY2d 471, the Court of Appeals affirmed the Workers’ Compensation Board’s decision that a security officer [Officer], who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Officer was employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Officer was driving home after completing his shift. Under the facts giving rise to Officer’s claim, which were stipulated, the Administrative Law Judge [ALF] found the Officer’s travel had a dual purpose that served to extend the scope of his employment as he was leaving a designated cleaning establishment after leaving his uniforms to be cleaned.

The Workers’ Compensation Board affirmed the ALJ’s determination, illustrating one of the exceptions to the general rule that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law. Here the Board found that Officer was engaged in a "special errand" for the employer. The Court of Appeals sustained the Workers’ Compensation Board's ruling that Officer was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* See Retirement and Social Security Law §363-c[b][1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

Employer's evidence in disciplinary hearing found to have failed to prove the alleged misconduct

Three correction officers and a captain, [Respondents], wearing with helmets which had visors and side flaps, responded to an incident between another correction officer and an inmate. The appointing authority, relying on a video of the incident, alleged one of the Respondents punched the inmate "in retaliation for being spat upon," and charged the Respondents of having filed false reports concerning the incident by not reporting a "use of force."

At the disciplinary hearing Respondents testified that as they were escorting the inmate, he turned and spat at an officer. Two individuals who were beside the inmate "immediately took him down," causing the inmate's face to hit a row of chairs.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended dismissal of the disciplinary  charges, finding that appointing authority’s evidence neither established that the inmate was struck by the other officer nor that Respondents witnessed a use of force which they failed to report.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2526.pdf 

Searching for abandoned property being held by the New York State Comptroller

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

Periodically NYPPL provides a sample listing of abandoned property being held by the New York State Comptroller. Below are some randomly selected “New York State” governmental entities currently listed on the Comptroller’s “abandoned property” website. Searching the site requires some “detective skills,” however, as the name of the property owner is not always accurately identified by the entity depositing the property with the Comptroller.

For example, the entity may be reported merely as:

EDUCATION DEPARTMENT

HEADS AND HORNS BUILDING BRONX NY 10460

FLEET BANK N A

 However, more often the names are more accurately reported, such as:

BOCES ADIRONDACK EDUC CTR	711 RT 3 BLOOMINGDALE RD SARANAC LAKE NY 12983	CONAGRA FOODS LAMB WESTON INC
BOCES ADULT & CONTIN UING	0 WILSON ST GOUVERNEUR NY 13642	NIAGARA MOHAWK POWER CORP
BOCES BROOME TIOGA	36038 MAIN STREET BINGHAMPTON NY 13905	NCS PEARSON INC
BOCES CATTARAUGUS AL	1825 WINDFALL ROAD OLEAN NY 14760	ADVISORY SERVICES CORP

SCHOOL DISTRICT 25	30-48 LINDEN PL FLUSHING NY 11354	PEARSON EDUCATION INC
SCHOOL DISTRICT ARDSLEY UNION FREE	500 FARM ROAD ARDSLEY NY 10502	STERLING LIFE INSURANCE CO
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
SCHOOL DISTRICT OF ERIE PA DIEHL ELMNTRY	ATTENTION: REBECCA POWIERZA 148 WEST 21S T STREET ERIE NY 16502	OFFIC

COUNTY OF NEW YORK	60 LAFAYETTE STREET NEW YORK NY 10013	UBS SECURITIES LLC
COUNTY OF NIAGARA	10 ECKERSON AVENUE AKRON NY 14001	EXAMINATION MGMT SERVICES INC
COUNTY OF NY	31 CHAMBERS ST NEW YORK NY 10007	SABRE HOLDINGS CORP
COUNTY OF ONEIDA	DPW DIV OF ENGINEERING 6000 AIRPORT RD ORISKANY NY 13424	DELL USA LP
COUNTY OF ONONDAGA	421 MONTGOMERY ST SYRACUSE NY 13202	ONONDAGA COUNTY DEPT OF FINANCE
CITY OF BINGHAMTON	38 HAWLEY ST CITY HALL BINGHAMTON NY 13901	NATIONWIDE MUTUAL INSURANCE CO
CITY OF BINGHAMTON POLICE DEPT	38 HAWLEY ST BINGHAMTON NY 13901	RELX INC & AFFILIATES
TOWN OF BERGEN HIGHWAY DEPT	PO BOX 591 BERGEN NY 14416	FASTENAL COMPANY
TOWN OF BERLIN	PO BOX 307 BERLIN NY 12022	ACUITY SPECIALITY PRODUCTS INC
TOWN OF BETHLEHEM DPW	143 NEW SALEM RD S VOORHEESVILLE NY 12186	COCA COLA REFRESHMENTS USA INC
TOWN OF BIG FLATS	476 MAPLE ST LOWER FLOOR BIG FLATS NY 14814	SYSTEMAX INC

TOWN OF BINGHAMTON	279 PARK AVE BINGHAMTON NY 13903	OFFICE EQUIPMENT SOURCE INC
VILLAGE OF ALBION	35 E BANK ST # 37 ALBION NY 14411	SAFETY KLEEN SYSTEMS INC
VILLAGE OF ALEXANDRIA BAY	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF ALEXANDRIA BAY MUNICIPAL POLI	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF AMITYVILLE	C/O ATTN DEIRDRE PARKER OFFICE HIGHWAY E MPLOYEES AMITYVILLE NY 11701	AFLAC OF NEW YORK
VILLAGE OF AMITYVILLE	21 IRELAND PLACE AMITYVILLE NY 11701	FIRST AMERICAN TITLE CO

  

Interested entities [including individuals] may begin searches via  http://www.osc.state.ny.us/ouf/index.htm

New York's workplace safety statutes control with respect to work-related injuries suffered working in a building owned by the NY NJ Port Authority

Supreme Court denied the motion of  Port Authority of New York and New Jersey [Authority] to dismiss the New York State's Labor Law §§240(1) and 241(6) claims as against it.

In response to the Authority's appeal, the Appellate Division unanimously affirmed the lower court's ruling, explaining that the lower court had properly rejected the Authority's arguments that as "a bistate entity created by a federally approved compact cannot be held liable under Labor Law §§240(1) or 241(6) for injuries the plaintiff allegedly sustained while working in a building owned by the Authority.

The Compact Clause of the United States Constitution, said the court, is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy (see Cuyler v Adams, 449 US 433,

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00365.htm

Seeking a court order limiting the scope of a public official's inquiry

The Nassau County Comptroller' issued a press release announcing the audit of the "finances and operation" of the Town of Hempstead's  animal shelter. The press release indicated that the audit was "precipitated after receiving alarming complaints" alleging "animal neglect, unnecessary deaths, unsanitary conditions, and unqualified staff."

In a proceeding pursuant to CPLR Article 78 characterized as being in the "nature of prohibition,"* the Town's counsel had argued that "any authority of the County Attorney to audit the Town or its departments was limited to an examination of financial affairs." The County Comptroller, on the other hand, contended that he was authorized to undertake not only financial audits, but also "performance audits" as well.

Supreme Court's ruling prohibited the Comptroller him from "acting in excess of his jurisdiction" and quashed certain subpoenas issued by him served on the Town of Hempstead Animal Shelter.

Finding that the County Comptroller's authority to audit the Animal Shelter was limited to "a fiscal examination only," and that the subpoenas, to the extent they sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures," fell outside the scope of his authority, ruled that the County Comptroller's authority to audit the animal shelter was limited to "a fiscal examination only" and quashed the subpoenas that sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures."

The Comptroller appealed and the Appellate Division said that it disagreed with the Supreme Court's conclusion that certain of the materials which were the subject of the subpoenas fell outside of the County Comptroller's subpoena and audit authority.

The court explained that the Nassau County Charter provides that the County Comptroller shall "examine and audit of his own motion or when directed to do so by resolution of the County Legislature, the accounts and records of any town or special district and make reports from time to time when requested by the County Executive or County Legislature on the financial condition of the county or any [and] all of its political subdivisions."

Further, the Appellate Division noted that the Charter provided that several County officials, including the County Comptroller, "shall have the power to . . . compel the attendance of witnesses and the production of books and papers." Notwithstanding the Town's contentions to the contrary, the Appellate Division said that "under the plain language of the Charter, the County Comptroller's general authority to "examine and audit . . . accounts and records," citing Charter §402[6], "which may be exercised sua sponte, is not restricted by the subsequently stated authority to make reports on financial conditions upon request."

The court opined that "the broad language of the Charter" signifies that the powers and duties conferred upon the County Comptroller "go beyond the verification of financial records and internal controls" and, citing McCall v Barrios-Paoli, 93 NY2d 99, concluded that the Town "failed to demonstrate that the County Comptroller was proceeding in excess of his authority or jurisdiction."

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include the writ of injunction - a judicial order preventing a public official from performing an act; the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform; "the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00284.htm

Articles by Dr. Robert A. Michaels, NYPER's environmental science consultant, recently published in the Environmental Claims Journal

Excessive PCBs in the Hudson River is discussed in an article by Dr. Michaels [corresponding author, [bam@ramtrac.com] and Uriel M. Oko. Click via the URL below for free access to the full text of the article from ResearchGate.

https://www.researchgate.net/publication/316464957_Excessive_PCBs_in_the_Hudson_River_Attributable_to_Incompleteness_of_Dredging_or_to_Seven_Years_of_Dredging

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Fracking in New York State: weighing risks and benefits - Click on the URL below for free access to the full text of this article by Dr. Michaels [corresponding author, [bam@ramtrac.com] and Dr. Randy W. Simon from ResearchGate. 

https://www.researchgate.net/publication/336533285_Fracking_in_New_York_State_Weighing_Risks_and_Benefits

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Concerns about Electromagnetic Fields [EMFs] have been noted, most recently related to expanding of 5G antenna networks that are speeding up Internet service in communities. An article addressing this issue by Dr. Michaels [bam@ramtrac.com] can be downloaded from ResearchGate at no charge via https://www.researchgate.net/publication/331747414_Telecommunications_Electromagnetic_Fields_and_Human_Health

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Fungal risk vectors in the context of climate change, an article by Dr. Michaels [bam@ramtrac.com] addressing emerging health problems in the context of climate change can be downloaded from ResearchGate at no charge via  https://www.researchgate.net/publication/318712818_Environmental_Moisture_Molds_and_Asthma-Emerging_Fungal_Risks_in_the_Context_of_Climate_Change 

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Reducing significant environmental impacts and potential public health risks associated with United States Postal Service operations is the focus of an article by Dr. Michaels  [bam@ramtrac.com] . It may be downloaded from ResearchGate at no charge via the following URL: https://www.researchgate.net/publication/323256797_The_Emerging_Urgency_of_Mitigating_Environmental_Impacts_and_Potential_Public_Health_Risks_of_the_United_States_Postal_Service

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Legacy Water Contaminants of Emerging Concern: this article by Dr. Michaels [bam@ramtrac.com] can be downloaded from ResearchGate at no charge via the https://www.researchgate.net/publication/335432817_Legacy_Contaminants_of_Emerging_Concern_Lead_Pb_Flint_MI_and_Human_Health_published_online_12_September_2019_print_expected_January_2020

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Emerging green synergy in the science/religion relationship:  from conflict to potentially planet-saving cooperation.  The full text of the article can be downloaded from ResearchGate.net at no charge via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

State Comptroller Dinapoli releases audits

New York State audits listed below were issued on December 30, 2019.

Department of Agriculture and Markets: Oversight of Industrial Hemp (2018-S-32)

The department’s program has rapidly expanded opportunities for industrial hemp production in the state. However, the department does not always follow established practices when reviewing applications, conducting inspections, and sampling plants. The department inspected only 57 percent of growers in the program and tested plant THC levels for only 58 percent of the growers during 2018. Incomplete records and unreliable data systems further hinder its ability to effectively monitor program requirements.

City University of New York (CUNY): Compliance With Payment Card Industry Standards (2018-S-61)

Auditors found that while CUNY recognizes the importance of compliance with payment card industry standards and is committed to maintaining strong internal controls, it has not provided its colleges with sufficient guidance and direction for addressing and maintaining compliance with data security requirements.

New York City Department of Finance (DOF): Selected Aspects of Parking Violations Operations to Collect Fines and Fees (2017-N-8)

Overall, auditors determined that while DOF identifies parking summonses to be processed, its collection of payments for parking fines needs to be improved. Many parking summonses are dismissed as defective due to errors that occurred when the summonses were issued. Until October 2018, DOF expended minimal effort to collect amounts due for summonses issued to vehicles with diplomatic plates. These amounts due include $15.6 million for summonses issued before Nov. 1, 2002.

Metropolitan Transportation Authority (MTA) - Staten Island Railway (SIR): Operational Training and Medical Assessments of Train Crews (Follow-Up) (2019-F-18)

An audit released in March 2018 found that SIR was not in compliance with the requirements of the induction and refresher training established for its engineers and conductors. In a follow-up, auditors found MTA-SIR officials made progress in addressing the problems identified in the initial audit.

Department of Motor Vehicles (DMV): Allocation, Billing, and Collection of Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act (2019-S-5)

In general, DMV is appropriately allocating, billing, and collecting nearly all the expenses related to administering the acts. However, auditors identified areas for improvement.

New York State Health Insurance Program: UnitedHealthcare: Reasonable and Customary Reimbursement Rates for Delayed Claims (2018-S-60)

United's automated claims processing system uses only the two most recent rate periods (i.e., reimbursement rates from the prior 12 months) to process all claims – even claims for services that occurred before those rates took effect. From a sample of 100 claims, auditors calculated a potential cost savings of $214,008 for 84 claims that were paid using a rate period that was not in effect on the date of the service.

New York State Health Insurance Program: Empire BlueCross: Improper Payments for Special Items Billed by Hospitals Within Long Island Health Network (LIHN) (2017-S-43)

Auditors found Empire did not pay for special item claims according to the terms of its contract with LIHN. From a sample of 874 claims, Empire overpaid LIHN hospitals $3,597,688 for 722 special item claims (83 percent of the claims sampled). As of July 23, 2019, Empire had recovered $262,467.

Niagara Frontier Transportation Authority (NFTA): Use of Vendor-Supported Technology (2019-S-40)

NFTA officials have not developed policies and procedures to ensure that its systems are regularly reviewed and kept up to date. Auditors identified unsupported systems used by NFTA on 66 devices.

Homes and Community Renewal: Office of Rent Administration (ORA): Collection of Fines Related to Tenant Complaints (2018-S-58)

Auditors found ORA lacks proper fiscal controls over fines and settlements. There is limited assurance that all monies due the state are received and accounted for because of system, process, and policy weaknesses. ORA does not exercise its full authority to collect outstanding fines more timely. As of April 2019, there were at least $346,000 in outstanding fines. Harassment fines were imposed in only 12 out of the 684 harassment cases (2 percent) filed during the audit scope.

New York City Department of Social Services: Oversight of Security Expenses in Single Adult and Adult Family Homeless Shelters (Follow-Up) (2019-F-31)

An audit issued in May 2018 found that DHS lacks strong internal controls – most notably DHS-specific standard operating procedures. A review of four sampled providers’ security expenditures alone identified nearly $2.2 million in insufficiently documented or questionable security expenses, indicating that significant monitoring gaps exist. In a follow-up, auditors found DHS officials have made progress in addressing the issues identified in the initial report.

Department of Health (DOH): Oversight of Obesity and Diabetes Prevention Programs (Follow-Up) (2019-F-43)

An audit issued in September 2018 identified opportunities for improved oversight, particularly regarding contractor performance, of the state’s obesity and diabetes prevention programs. In a follow-up, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

Department of Health: Wadsworth Center Environmental Laboratory Approval Program (ELAP) (2018-S-1)

Auditors identified opportunities to improve documentation of on-site assessments, for which Wadsworth has taken corrective action. However, auditors did not find a significant amount of other non-compliance with ELAP procedures and protocols in the areas reviewed that would cause us to question the sufficiency of Wadsworth’s processes for certifying, monitoring, and enforcing regulations over environmental laboratories.

The "Son of Sam Law" allows crime victims to recover from any funds of a convicted person, including a retiree's pension benefits

A retired New York City police officer [Defendant] was convicted of, among other crimes, murder in the second degree and attempted murder in the second degree and was sentenced to a lengthy prison term.*

Plaintiff in this action had brought a personal injury action against Defendant that ultimately resulted in a judgment in excess of $1 million against Defendant. When Plaintiff's attorney served a restraining notice upon the New York City Police Pension Fund [Fund] to prevent any disbursements by the Fund to Defendant pending Defendant's criminal appeal, the Fund's general counsel advised Plaintiff's attorney that the Fund "was prohibited from honoring" Plaintiff's restraining notice "because Defendant's pension was subject to an anti-assignment provision. Defendant then moved to vacate the restraining notice and to stay the enforcement of the money judgment against him. 

Supreme Court denied Defendant's motion, finding that the so-called Son of Sam Law** specifically permitted crime victims to recover from any funds of a convicted person, including pension funds. Defendant appealed the court's decision.

The Appellate Division rejected Defendant's appeal challenging the Supreme Court's ruling. The court explained that the legislative intent of the Son of Sam Law was to improve the ability of crime victims to obtain "full and just compensation from the person convicted of the crime by allowing crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source and protecting those funds while litigation is pending," citing Waldman v State of New York, 163 AD3d 1114,.

Although the Son of Sam Law initially only permitted a crime victim to recover "profits of the crime", in 2001 the Legislature amended the law to allow a crime victim to seek recovery from "funds of a convicted person," which, said the Appellate Division, includes "all funds and property received from any source by a person convicted of a specified crime."***

Defendant had argued that CPLR §5205 exempted his pension from assignment to satisfy Plaintiff's judgment because it provides for the exemption of pension funds from the award of money judgments. 

Citing Matter of New York State Off. of Victim Servs. v Raucci, 106 AD3d 1138, the Appellate Division, said it had found that CPLR 5205 (c) was superseded by the Son of Sam Law. Further, the Appellate Division opined that Defendant's assertions that Retirement and Social Security Law §110 and Administrative Code of the City of New York §13-264 protected his pension from assignment to satisfy plaintiff's money judgment "are similarly without merit due to the broad reach of the Son of Sam Law."

* See People v Guzy, 167 AD3d 1230, lv denied 33 NY3d 948

** Executive Law § 632-a

*** The law, as amended, however, specifically excludes child support and earned income (Executive Law §632-a [1] [c]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00011.htm

* See People v Guzy, 167 AD3d 1230, lv denied 33 NY3d 948

** Executive Law § 632-a

*** The law, as amended, however, specifically excludes child support and earned income (Executive Law §632-a [1] [c]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00011.htm

An Article 78 petitioner is not aggrieved by an administrative determination made following petitioner's default and may not seek to review such a determination

Supreme Court dismissed the Petitioner's CPLR Article 78 action seeking a review of a determination by the Commissioner of Education [Commissioner], alleging that that the penalties imposed by the Commissioner "were excessive and improper.

The Commissioner had affirmed the decision of a hearing officer that Petitioner had operated an English as a second language school without, among other things, [a] being certified; [b] employing at least one private school agent, [c] paying required fees; [d] submitting required licensure and certification paperwork; and [e] recommended certain civil penalties upon, and restitution by, Petitioner. Supreme Court dismissed the action, finding that Petitioner's default precluded review of the order* and Petitioner appealed.

The Appellate Division, affirmed the lower court's ruling, observing that Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer and, as a result of Petitioner's failure to appear, the Hearing Officer deemed the allegations against Petitioner to be admitted and recommended the imposition of fines totaling $398,000.

The court also noted that Petitioner did not deny that it failed to answer or otherwise appear following service upon it of both the notice of charges and the notice of hearing date nor object to the Hearing Officer's report or otherwise seek to vacate its default prior to the Commissioner's issuance of the order imposing the subject fines.

Citing Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80 AD3d 924 and other court rulings, the Appellate Division observed that it is well settled that "a petitioner is not aggrieved by an administrative determination made on its default and may not seek to review such a determination."

Addressing a procedural matter, the court noted that "the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes." In such situations the proper procedure for a petitioner seeking judicial review of the merits underlying an administrative default "is to apply to the agency to vacate the default by demonstrating a reasonable excuse for the default and the existence of a meritorious claim and, if unsuccessful, seek[ing] court review of the agency's denial of that application."

Considering this point, the Appellate Division rejected Petitioner's claim that "(1) Education Law §5003 expressly relieves petitioner from having to submit an application seeking to vacate its administrative default before seeking judicial review of the underlying merits or (2) that the absence of a statutory and/or regulatory procedural mechanism for seeking vacatur of an administrative default precludes the agency from otherwise entertaining such an application."

Rather, noted the Appellate Division, during oral argument counsel for [the Commissioner] conceded that the "Commissioner would readily entertain an application" by Petitioner seeking to vacate the subject default. Thus, said the court, as Petitioner has, to date, not filed an application seeking to vacate its administrative default, "we find that its petition was properly dismissed."

* Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer. 

N. B. In contrast, with respect to disciplinary action initiated by an appointing authority charging an employee with misconduct or incompetence pursuant to law or a provision set out in a collective bargaining agreement, the general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00016.htm

Procedural error results in the dismissal of an appeal to the Commissioner of Education

§310 of the Education Law provides for an aggrieved party filing an appeal or petition challenging an act or omission with the Commissioner of Education and the Commissioner is "authorized and required to examine and decide" issues involving, but not limited to, an act or omission at a school district meeting; by a district superintendent and other officers, and official act or decision of any officer, school authorities, or meetings concerning any other matter addressed by the Education Law.

In this appeal, a school superintendent [Petitioner] asked the Commissioner of Education to remove the president and member of the board [President] from the School Board. The Commissioner dismissed the Petitioner's appeal, explaining appeal must be rejected and the application denied because Petitioner's application failed to include proper notice to the President as required by §277.1(b) of the Commissioner’s regulations,* citing Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482 among other Decisions of the Commissioner of Education.

The notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings and a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent.

* See 8 NYCRR Part 877, Practice on application for removal of school officers.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17803

Agency's alleged failure to process an employee's contract grievance does not state a claim that the union breached its duty of fair representation

PERB's ruled that petitioner [Employee] in this CPLR Article 78 action failed to state a claim of improper practices against his employer [Agency] and his employee organization [Union] based on his allegation that the Agency "did not process his grievances quickly enough." The Employee appealed but the Appellate Division unanimously affirmed PERB's determination.

Citing Civil Service Bar Association, Local 237 v City of New York, 64 NY2d 188, the Appellate Division explained that PERB had rationally found that Employee failed to allege facts that would show that his Union had engaged in arbitrary, discriminatory or bad faith conduct, which is necessary to state a claim that the Union had breached its duty of fair representation within the meaning of Article 14 or the Civil Service Law, typically referred to as the Taylor Law.

Noting that Employee had acknowledged that a Union representative had sent an email to the Agency seeking to schedule three of Employee's grievances for a "Step II hearing" with respect to Employee's primary complaint that the Agency "did not process his grievances quickly enough," the court opined that such an allegation "does not present a basis for finding that [the Union] breached its duty of fair representation." As the Employee failed to show that the Union had breached its duty of fair representation, he was precluded from litigating directly against the Agency for any alleged improper employer practice within the meaning of Civil Service Law §209-a(1).

Further, said the court, PERB "rationally concluded that [Employee's] charge failed to allege facts that would show that [the Agency] refused to process his grievances on the basis of improper motivation or discrimination. Indeed, the Appellate Division observed that "construed liberally in [Employee's] favor, the allegations in the charge are conclusory and fail to establish that PERB acted arbitrarily and capriciously in dismissing the charge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00065.htm

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System

The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.* Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00198.htm