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

Applying the Doctrine of res judicata

Plaintiffs brought a putative class action against their employer, the New York City Housing Authority [“NYCHA”], and their labor union, Defendant-Appellee Union Local 237, I.B.T. [the “Union”] alleging that NYCHA paid them less than similarly situated white employees and that their Union tacitly approved and encouraged this discriminatory compensation scheme, in violation of 42 U.S.C. §1981, the Equal Protection Clause, and the New York City Human Rights Law [“NYCHRL”].

In March 2017, the District Court [Schofield, J.] granted summary judgment in favor of NYCHA and the Union, finding that the record contained insufficient evidence of discriminatory animus.

The Circuit Court of Appeals, Second Circuit, affirmed this judgment on appeal [See Wynn v. New York City Hous. Auth., 730 F. App’x 92].

Plaintiffs then filed a second action against the Union [“Wynn II”], this time alleging that the Union violated Title VII, 42 U.S.C. § 2000e et seq., by allowing NYCHA to pay them less than similarly situated white employees.

The District Court dismissed Plaintiffs’ amended complaint under Rule 12[b][6], concluding that their claims were precluded by res judicata. Plaintiffs then filed this timely appeal.

In Wynn II, Plaintiffs seek to hold the Union liable for “acquiesc[ing]” to NYCHA’s allegedly discriminatory compensation scheme. Plaintiffs’ Title VII claims are therefore based on their labor union’s failure to advocate for higher wages, not on their employer’s decision to pay them less than the prevailing wage rate. As a result, Plaintiffs cannot benefit from the Ledbetter Act, which, as this Court and other circuits have recognized, was directed “to a very specific type of claim: that the employer is ‘paying different wages or providing different benefits to similarly situated employees.’”

As the Ledbetter decision specifically dealt with a pay-discrimination claim that was cognizable without regard to other adverse employment actions, the Circuit Court found that the Ledbetter Act’s reference to ‘discrimination in compensation’ was to traditional pay-discrimination claims rather than to a pay reduction that flows from another adverse employment action.”

Accordingly, said the court, the Ledbetter Act does not save Plaintiffs’ Title VII claims from the application of res judicata.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/doc/19-962_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/941a3a25-6d0d-4540-a4b1-7239a06af994/14/hilite/

A retirement is involuntary when the claimant's disability caused or contributed to the retirement

A police officer [Claimant] suffered and injury to his lower back while working as a police officer in 2012 and never returned to work. Claimant subsequently accepted a performance of duty disability retirement 2015 and then raised the issue of entitlement to awards for lost wages after retiring. Ultimately the Workers' Compensation Board found that Claimant's retirement was causally related and that he had not voluntarily withdrawn from the labor market. The Board further found that Officer remained temporarily totally disabled and was entitled to lost wage awards for the period between March 13, 2015 and July 12, 2017, and remanded for a determination on the issue of permanency. The employer appealed the Board's determination.

The Appellate Division, citing Romanko v New York Univ., 154 AD3d 1031, affirmed the Board's decision, explained "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement." Further, said the court, "Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence."

As to the nature of Officer's retirement, the opinion states that "A retirement is involuntary when the claimant's disability caused or contributed to the retirement." Here the Board credited Officer's testimony that he had accepted retirement because his "work-related back injury left him unable to work." Further, the Workers' Compensation carrier's medical consultant opined that Officer "had a temporary total disability and was 'incapable of returning to the workforce in any capacity' and that he anticipated that the condition would be permanent."

Affirming the Board's decision, the Appellate Division said that there was "substantial evidence supporting the Board's conclusion that [Officer's] disability caused or contributed to his retirement and,thus,that it was involuntary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09072.htm

Employee disciplined for allegedly violating agency rules

A New York City sanitation worker [Worker] was found to have violated agency rules by being absent without leave, improperly taking emergency leave, failing to immediately report an accident, failing to report to the clinic as required, performing an unauthorized pickup, and disobeying an order. 

Of the 15 alleged violations of agency rules, only six were sustained.

OATH Administrative Law Judge John B. Spooner recommended that Worker be suspended four days for each sustained violation, for a total of 24 days, reasoning that none of the violations were serious or shown to be disruptive to the unit operations and that the large number of dismissed violations suggested that a few supervisors issued complaints without sufficient justification.

The Appointing Authority adopted Judge Spooner’s findings and recommendations.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-120.pdf

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 Comptroller 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

Applying the "relations back" doctrine in an Article 78 action to cure a respondent's claim that the petition was untimely filed

The petitioners in this CPLR Article 78 action relied on the "relations back" doctrine for the purposes the court having assume jurisdiction in the matter. The Appellate Division explained reliance on the relations back doctrine requires that the Article 78 petitioner establish:

1. "that the claims arose out of the same occurrence;

2. "that the later-added respondent[s] [were] united in interest with a previously named respondent;, and

3. "that the later-added respondent[s] knew or should have known that, but for a mistake by petitioner as to the later-added respondent[s'] identity, the proceeding would have also been brought against [them]."

In this instance the issued on which the parties focused was the third prong of this test.

The genesis of the Article 78 action was a collective bargaining representative [Union] filing two improper employer practice charges against the Employer with the Public Employment Relations Board [PERB]. A PERB Administrative Law Judge [ALJ], following a hearing, issued a decision finding that the Employer guilty of one charge but dismissed the other charge. 

The Employer filed exceptions to the ALJ's ruling and, after an administrative appeal, PERB reversed the ALJ's determination. The Union then commenced a CPLR Article 78 solely against PERB seeking to annul its determination. Subsequently, however, the Union filed an amended Article 78 petition adding the Employer as respondents as well as PERB. The Employer contended that the amended petition was untimely, whereupon the Union argued that its petition was timely, relying on the relation back doctrine. PERB submitted a reply arguing that if Supreme Court agreed with the Employer's untimeliness objection, the amended petition should be dismissed against it due to the Union's failure to join necessary parties. 

Supreme Court dismissed the amended petition insofar as asserted against the Employer, finding that it was untimely filed and transferred the remaining portion to the Appellate Division in accordance with CPLR §7804[g]).

The Appellate Division observed "that the record fails to disclose that the failure to name the [Employer as] respondents in the original petition was due to a mistake as to their identity. The explanation provided by [the Union] was that it did not believe that the [Employer] were necessary parties to the proceeding." Citing Windy Ridge Farm v Assessor of Town of Shandaken, 45 AD3d 1099, affd 11 NY3d 725, the Appellate Division explained that such a mistake is a mistake of law not contemplated by the relation back doctrine."

In the words of the court, "[g]iven that [the Union] was aware of the [Employer's] existence and 'failed to appreciate that [they] were legally required to be named in proceedings of this type', [the Union's] reliance on the relation back doctrine is unavailing."

As the Employer was necessary parties to this proceeding and it demonstrated that the amended petition was not timely commenced against it, the Appellate Division ruled that the amended petition must also be dismissed insofar as asserted against PERB in view of the timeline involved in perfecting the Union's underlying Article 78 action. The Appellate Division then dismissed the Union's amended petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00199.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

Selective selection for appointment by sex permitted under certain circumstances

The Plaintiff in this  action sought a declaration that the Defendants' failure to consider and appoint female candidate on the eligible list established from a civil service examination for the position of  juvenile counselor with the New York City Administration for Children's Services (ACS) violated the State and City Human Rights Laws (Executive Law §296[1][a]; Administrative Code of the City of NY § 8-107[1][a]). Supreme Court found that the Defendants established prima facie that their selective hiring of male applicants as juvenile counselors did not violate the Human Rights Law because, pursuant to the Prison Rape Elimination Act* [PREA] and "industry best practice," sex is a bona fide occupational qualification [BFOQ] for juvenile counselors, and no reasonable alternative to the preferential hiring of male counselors existed to protect the privacy interests of male juvenile detainees. The Appellate Division unanimously affirmed the lower court's ruling, citing Jennings v New York State Office of Mental Health, 786 F Supp 376.

In Jennings the court opined that "[t]he gender-based assignment policy strikes a balance between the patients' privacy interests and the right of Security Hospital Treatment Assist ands [SHTA] to bid for [the] position," explaining that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII."

Plaintiff in this action, said the Appellate Division, "failed to raise an issue of fact as to the existence of reasonable alternatives to preferential male hiring" based on a selective hiring to save overtime compensation. However, opined, the court, gender-based hiring discrimination was appropriate "because the shortages of male counselors still at times forced the employer to assign female counselors to male residence halls, without the required male counterparts, which resulted in female counselors performing pat searches in violation of PREA and best practice.

Another factor, noted the Appellate Division, was that "mandatory overtime contributed to a 65% attrition rate among male counselors during the two years preceding the preferential hiring, which, combined with the overtime, worsened morale and affected performance among counselors.

In addition, the decision notes that Plaintiff failed to substantiate the assertion that better scheduling of staff could have obviated the need for huge amounts of mandatory overtime and the record belies the assertion that better recruitment could have solved the problem of critical shortages of male counselors.

* See 34 USC Sections 30301-9

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00527.htm

Publication of its investigation report by the New York City Office of Special Commissioner of Investigations on the Internet challenged by a party named in the report

An investigation report prepared by the New York City Office of Special Commissioner of Investigations [SCI] substantiated allegations that a contractor [Plaintiff] had engaged in "theft of services" and recommended that he be deemed ineligible to work as a contractor for New York City Department of Education [DOE]. The report was subsequently posted by SCI on its Internet site. Plaintiff then initiated a CPLR Article 78 seeking a court order compelling SCI to remove the report from its website.

Supreme Court denied the petition filed by Plaintiff and dismissed the proceeding. The Appellate Division unanimously affirmed the lower courts ruling. The Appellate Division ruling that SCI's decision not to remove the report upon Plaintiff's request was not arbitrary and capricious, citing Matter of Peckham v Calogero, 12 NY3d 424. The court also noted that the record demonstrated that SCI considered Plaintiff's "refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing the misconduct."

Thus, said the court, "[i]t was not unreasonable for SCI to conclude that [Plaintiff's] untimely rebuttal, submitted to the DOE months after it adopted SCI's recommendations, and the almost 10 years that passed from the report's publication before [Plaintiff's] current request, did not compel the report's removal," Further, said the Appellate Division,  the Special Commissioner is authorized to "issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district," sustaining the SCI's power to publish it report on the Internet.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00033.htm

Where certain disciplinary charges and specifications fail to survive judicial review the appointing authority must determine the appropriate penalty to be imposed based on the surviving charges and specifications

The Appellate Division ruled that dismissal of one or more Charges and, or, specification set out in a §75 disciplinary action required remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee.

The appointing authority filed disciplinary charges against an employee [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's performance in handling "911 calls" on a specified date while Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in  Petitioner's handling of 911 calls on a different specified date.

After Petitioner testified concerning the "911 calls" underlying Charges I and II, the appointing authority directed a further investigation into the Petitioner's handling of other 911 calls. The findings resulting from this "further investigation" led to the appointing authority's filing "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner. Each such supplemental Charge set out multiple specifications of alleged misconduct in Petitioner's handling of these seven additional "911 calls."

The §75 disciplinary hearing officer designated by the appointing authority found Petitioner guilty of various, but not all, Charges and specifications and recommended that the Petitioner's employment be terminated given "the number and extent of his instances of misconduct and/or incompetence."

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination to impose the penalty of dismissal from employment. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division explained that judicial review of an employee's Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. Further, the Appellate Division opined that courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exist, or where  different inferences may be drawn, as "the duty of weighing the evidence and making the choice rests solely upon the [appointing authority]."

Here any credibility issues were resolved by the disciplinary hearing officer. Further, substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications. Here, however, the Appellate Division ruled that "specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained."

Concluding that the appointing authority had imposed the penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the court had dismissed] three of those specifications," the Appellate Division, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter" in consideration of only the Charges and specifications that had survived judicial review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm

Exceptions to the "going and coming to work" 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 Claimant's decision is posted on the Internet at:

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

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