The doctrine of res judicata prohibit a petitioner litigating an issue that could have been brought in an earlier proceeding

Citing Matter of Hunter, 4 NY3d 260 the Appellate Division opined that Plaintiff's claims for gender discrimination, hostile work environment, and retaliation under the New York State Human Rights Law [Executive Law §296] and New York City Human Rights Law [Administrative Code of the City of New York §8-107] were precluded in the instant action by the doctrine of res judicata because those claims could have been brought in her prior federal action, which alleged gender discrimination under 42 USC §1983. In addition, the Appellate Division noted that Plaintiff acknowledged  that her claim for disability discrimination is barred by the election of remedies doctrine, as she elected to first file a New York State Division of Human Rights complaint alleging disability discrimination.

Click HEREto access the Appellate Division's ruling in this action.

GOVTECH TODAY reports "NY Chief Information Security Officer Karen Sorady Retires"

On December 17, 20211, GOVTECH TODAY reported that after more than three decades of serving the state of New York in various information security roles, state Chief Information Security Officer Karen Sorady is leaving her post for retirement. 

Click here to READ MORE

Declining to appoint an applicant to a position in the public service

Appointing authority's determination not to appoint an applicant for a position in the public service sustained if not determined to be arbitrary and capricious or affected by an error of law.

Click HEREto access the determination of the Appellate Division

Evaluating implied rights of action with respect to litigation seeking a "private remedy"

In Ortiz v Ciox Health LLC, 2021 NY Slip Op 06425, the Court of Appeals answered the question presented in question in the negative.

The Court explained that "A plenary private right of action would be inconsistent with the statutory scheme and the requisite legislative intent for an implied private right of action is not present", concluding that no private right of action lies for violations of Public Health Law §18(2)(e) in this instance.

Click HERE to access the text of the Court of Appeals' decision.

Internal Revenue Service Webinar: Who is an Employee?

The Internal Revenue Service [IRS] will conduct a live webinar, Who is an Employee?, on December 16, 2021, at 1:00 ET.  

Click here to Registerfor this free webinar presented by the IRS Office of Federal, State and Local Governments.

Information in this webinar will help you determine which workers you should treat as employees.

Topics include:

• Common law employees
• Statutory employees
• Section 218 agreement for government entities
• Form SS-8

Appealing disciplinary penalties imposed on members of the New York State Bar

In Matter of Hallock, 2021 NY Slip Opinion 06937, the Court of Appeals addressed the Appellate Division's imposition of reciprocal discipline on appellants Larry Hallock and Mary Malerba [Appellants] for alleged misconduct committed before a federal district court judge, resulting in the suspension of Hallock from the practice of law for one year and of Malerba for six months.

The Court of Appeals held that "that the record from the foreign jurisdiction did not support the Appellate Division's finding that [Appellants] acted dishonestly and, accordingly," reversed and remitted the matter to the lower court in both cases.

Click HEREto access the text of the Court of Appeals' ruling in this action.

The failure to initiate a timely CPLR Article 78 challenging a final administrative decision requires the dismissal of the complaint

The Appellate Division concluded that petitioner's cause of action alleging that the appointing authority unlawfully terminated his probationary employment — a decision made by administrative determination — is time-barred as petitioner was terminated "almost 15 months before bringing this action, and a challenge to an administrative determination on the ground that it is contrary to law is subject to a four-month statute of limitations."

Click HERE to access the full text of the Appellate Division's decision.

Establishing that a public record is exempt from disclosure pursuant to New York State's Freedom of Information Law

As the Court of Appeals held in Karlin v McMahon, 96 NY2d 842, although "[a]ll government records are presumptively open for public inspection unless specifically exempt from disclosure," in this instance an affirmation of the Village Attorney demonstrating a valid basis for the denial of the Freedom of Information [FOIL] request at issue by establishing that the records sought therein were exempt from disclosure pursuant to Public Officers Law §87(2)(e)(i) and thus Supreme Court properly denied the petition and dismissed the proceeding on the merits.

Click HERE to access the Appellate Division's ruling in this matter.

Removal of a New York City Community Education Council District President

Appeal of Benjamin Morden from action of the New York City Department of Education regarding a request for the removal of Shino Tanikawa and reinstatement of Maud Maron as President of the Community Education Council District 2. The Commissioner of Education dismissed the Petitioner's appeal.

Click HEREto access the text of the Commissioner's ruling.

Governor Hochul announces "Indoor Mask Policy"

New York State Governor Kathy Hochul announced masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.

 

Her determination is based on the state's weekly seven-day case rate as well as increasing hospitalizations. The new business and venue requirements extend to both patrons and staff.  

 

This measure is effective Dec. 13, 2021 until Jan. 15, 2022, after which the state will re-evaluate based on current conditions. The new measure brings added layers of mitigation during the holidays when more time is spent indoors shopping, gathering, and visiting holiday-themed destinations.  

 

Businesses and venues who implement a proof of vaccination requirement can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC Vaccination Card. In accordance with CDC's definition of fully vaccinated, full-course vaccination is defined as 14 days past an individual's last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Johnson and Johnson vaccine).

 

A violation of any provision of this measure is subject to all civil and criminal penalties, including a maximum fine of $1,000 for each violation. Local health departments are being asked to enforce these requirements. 

 

To read the entire news release Click Here

The Hearing Officer conducting an administrative disciplinary action was free to credit the testimony of witnesses corroborating an infant's statements concerning the event underlying the disciplinary action

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the New York City Police Commissioner's decision to terminate Plaintiff's employment with the New York City Police Department [NYPD] upon findings Plaintiff guilty of, among other things, engaging "in conduct prejudicial to the good order, efficiency, and discipline" of the NYPD.

The Appellate Division unanimously confirmed the Police Commissioner's decision, finding that testimony provided in the course of the disciplinary hearing constituted substantial evidence to support the finding that Plaintiff "struck a three-year-old child on the chest." 

Citing Matter of Freeman v Ward , 162 AD2d 127, leave to appeal denied 76 NY2d 706, the court explained that the Hearing Officer was free to credit the witnesses' testimony corroborating the child's statements, since weighing the evidence and choosing between conflicting accounts was solely within the province of the administrative agency."

In addition, the Appellate Division opined that substantial evidence supported a finding that Plaintiff was guilty of making "misleading statements regarding the incident to an NYPD investigator during an official interview," as Plaintiff's statements to the investigator contradicted credible evidence of the alleged conduct.

As to the penalty imposed, termination, the court said that the penalty of dismissal does not shock the conscience, citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222."

The Appellate Division also noted that "Where police discipline is at issue, [judicial review] must allow 'great leeway' to the Commissioner's determinations regarding the appropriate punishment" to be imposed and, citing Matter of Kelly v Safir, 96 NY2d 32, observed that it is for "... the Commissioner, not the courts, who is accountable to the public for the integrity of the Department" to determine the disciplinary penalty to be imposed.

Click HERE to access the full text of the Appellate Division's decision.

Determining the prevailing party for the purpose of awarding attorney fees and litigation costs in a lawsuit brought pursuant to the Freedom of Information Law

In the Matter of Rosasco v St. James Fire District, 2021 NY Slip Op 06692, decided on December 1, 2021, Troy Rosasco [Petitioner] initiated a proceeding pursuant to CPLR Article 78 to compel the St. James Fire District [Respondents] to comply with a series of requests for documents he made pursuant to the Freedom of Information Law [FOIL]* Respondents moved to dismiss the petition. 

The Supreme Court, among other things, granted the Respondents' motion to dismiss the proceeding and rejected Petitioner's application for an award of attorneys' fees and other litigation costs based on Petitioner's claim that he was the "prevailing party".

In response to Petitioner's appeal of the Supreme Court's ruling, the Appellate Division held that "Supreme Court properly determined that the branch of the Article 78 petition which sought to compel the production of the documents Petitioner sought "was rendered academic" by the Respondents'  disclosure of the materials demanded by Petitioner after Petitioner initiated his Article 78 action.

Citing Matter of Edmond v Suffolk County, 197 AD3d 1297 among other decisions, the Appellate Division explained that where, as here, a petitioner receives "an adequate response to a FOIL request during the pendency of a CPLR Article 78 proceeding, the proceeding should be dismissed as academic because a determination will not affect the rights of the parties."

As to an award of "attorneys' fees and other litigation cost", the Appellate Division opined that Supreme Court properly denied Petitioner's application for such costs as Petitioner "did not establish that the [Respondents] failed to respond to his multiple FOIL requests ... 'Nor did [Petitioner] establish that the [Respondents] denied access to any records without a reasonable basis.'"

In addition, the Appellate Division held that the Supreme Court properly denied that branch of his petition with respect to Petitioner application for a court order directing the retraining of certain employees of the Respondents, citing Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405.

In contrast, in Matter of Jack Jaskaran, [Plaintiff] v The City of New York [Respondents], 2021 NY Slip Op 06762, decided December 2, 2021, the Appellate Division unanimously modified, on the law, Supreme Court's ruling addressing  Plaintiff''s request for attorneys' fees, and remand the matter to lower court for further proceedings consistent it ruling on the issue.

The court opined that Plaintiff had established that he is entitled to recover attorneys' fees, since he had substantially prevailed in the Article 78 proceeding and Respondents had "no reasonable basis for denying access" to the records Plaintiff sought pursuant to the Freedom of Information Law.

In responding to Plaintiff's FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, Respondents, relying on Public Officers Law §87(2)(d, among other sections of the statute, produced only the manual's cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual's developer to release the rest of the manual.

After Plaintiff commenced his Article 78 proceeding, however, Respondents produced the rest of the manual in unredacted form, except for the appendices, with its response to the petition.

Under these circumstances, opined the Appellate Division, Plaintiff substantially prevailed within the meaning of Public Officers Law §89(4)(c), citing Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67.

Further, said the Appellate Division, Respondents did not established that they had a "reasonable basis" for withholding production under Public Officers Law §87(2)(d) and conceded that it sought permission from the manual's developer to release the information only after receiving the Article 78 petition, suggesting that the disclosure was prompted solely by Plaintiff's resort to litigation and that Respondents could have sought permission in response to the FOIL request itself.

This, opined the court, militates against a finding that the Respondent had a "reasonable basis" for withholding production of the material sought by Plaintiff, citing Matter of Madeiros, 30 NY3d at page 79.

* Public Officers Law Article 6, typically referred to as "FOIL".

Click HEREto access the Appellate Division's decision in Rosasco.

Click HEREto access the Appellate Division's decision in Jaskaran.