The fact that the proceeding has been rendered moot by the disclosure of the FOIL documents demanded does not preclude an award of fees

Matter of Lewis v James

2022 NY Slip Op 04066

Decided on June 23, 2022

Appellate Division, Third Department

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

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

Decided and Entered:June 23, 2022

532161

[*1]In the Matter of Julio Lewis, Appellant,

v

Letitia James, as Attorney General of the State of New York, Respondent.

Calendar Date:May 23, 2022
Before:Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

Julio Lewis, Coxsackie, appellant pro se.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

 

Pritzker, J.

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered June 22, 2020 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging the constructive denial of his request under the Freedom of Information Law (seePublic Officers Law art 6 [hereinafter FOIL]) for various wiretap applications, warrants and other documents pertaining to his criminal indictment, and sought reimbursement of fees associated with his FOIL request. Prior to answering, respondent moved to dismiss the petition on the ground that respondent was not the proper party to the proceeding. Supreme Court granted the motion and dismissed the petition. Petitioner appealed. Respondent then moved this Court to dismiss, as moot, that part of the appeal challenging the denial of petitioner's FOIL request, as respondent had discovered that it was in possession of, and thereafter provided to petitioner, 465 pages of responsive documents. In addition, respondent moved to remit the matter to Supreme Court to allow petitioner to submit an application for an award of fees pursuant to Public Officers Law § 89 (4) (c) (i). This Court denied the motion without prejudice to respondent raising the issues on appeal.

We agree with respondent that the proceeding, insofar as it challenges the constructive denial of petitioner's FOIL request, is moot (see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 AD3d 808, 809 [2021], lv denied 38 NY3d 905 [2022]; Matter of Vertucci v New York State Dept. of Transp., 195 AD3d 1209, 1210 [2021], lv denied 37 NY3d 917 [2022]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1073-1074 [2020]). Respondent complied with petitioner's FOIL request by providing him with 465 pages of responsive documents, albeit noting that some documents were exempt from disclosure or portions redacted. To the extent that petitioner requests an in camera inspection of all documents in respondent's possession in order to ensure that everything requested was properly disclosed, "such review [is] precluded by [petitioner's] failure to[, in this instance,] . . . commence a new CPLR article 78 proceeding after exhausting [his] administrative remedies" (Matter of New York State Funeral Directors Assn. v New York State Dept. of Health, 200 AD3d 1255, 1257 [2021]; see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 AD3d at 809).

The fact that the proceeding has been rendered moot by the disclosure of the documents does not, as conceded by respondent, preclude petitioner's request for an award of fees (see Matter of Vertucci v New York State Dept. of Transp., 195 AD3d at 1210; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074). The Public Officers Law permits an award of "reasonable [counsel] fees and other litigation [*2]costs" where the petitioner "has substantially prevailed" in a FOIL proceeding and "when the agency failed to respond to a request . . . within the statutory time frame" (Public Officers Law § 89 [4] [c] [i]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78 [2017]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074). Under the circumstances, as petitioner included in his petition a request for fees associated with the FOIL application, the matter must be remitted to Supreme Court for a determination of an award of costs and fees pursuant to Public Officers Law § 89 (4) (c) (i).

Egan Jr., J.P., Lynch, Ceresia and Fisher, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed petitioner's request for fees; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Workers' Compensation Board's factual determination that claimant suffered from an occupational disease resulting from repetitive stress when supported by substantial evidence will not be disturbed

Matter of Brancato v New York City Tr. Auth.

2022 NY Slip Op 04073

Decided on June 23, 2022

Appellate Division, Third Department

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

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

Decided and Entered:June 23, 2022

533429

[*1]In the Matter of the Claim of Anthony Brancato, Claimant,

v

New York City Transit Authority, Appellant. Workers' Compensation Board, Respondent.

Calendar Date:May 26, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for appellant.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

 

Ceresia, J.

Appeal from a decision of the Workers' Compensation Board, filed October 28, 2020, which ruled that claimant sustained a causally-related occupational disease and granted the claim for workers' compensation benefits.

Claimant worked for the employer for approximately 25 years — 7 years as a bus mechanic and 18 years in various supervisory roles, retiring in August 2019 as a general superintendent of maintenance. His work duties as a bus mechanic included using hand tools and impact guns, replacing tires and operating a heavy-duty tow truck to transport buses and large trucks, averaging 60 to 70 hours per week. As a supervisor, claimant assisted and instructed mechanics performing maintenance, and spent about 40% of his time at a desk using a computer to complete forms and reports. On December 9, 2019, claimant sought medical treatment for severe pain in his wrists, hands and thumbs, reporting that the onset of the intermittent symptoms had occurred in 1999 and they became severe and frequent by 2017. Claimant thereafter filed a claim for workers' compensation benefits, claiming that his condition was causally related to the repetitive stress of his job duties. Following hearings, a Workers' Compensation Law Judge determined that, as a result of repetitive stress, claimant sustained an occupational disease to both hands and both thumbs and set a date of disablement of December 9, 2019. On the employer's appeal, the Workers' Compensation Board affirmed, and the employer appeals.

We affirm. An occupational disease is "a disease resulting from the nature of [the] employment and contracted therein" (Workers' Compensation Law § 2 [15]), and "does not derive from a specific condition peculiar to an employee's place of work, nor from an environmental condition specific to the place of work" (Matter of Patalan v PAL Envtl., 202 AD3d 1252, 1252-1253 [2022] [internal quotation marks and citations omitted]; see Matter of Mack v County of Rockland, 71 NY2d 1008, 1009 [1988]; Matter of Bodisch v New York State Police, 195 AD3d 1274, 1275 [2021]). "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment[, and] the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Urdiales v Durite Concepts Inc/Durite USA, 199 AD3d 1214, 1214 [2021] [internal quotation marks and citations omitted], lv denied 38 NY3d 907 [2022]; accord Matter of Patalan v PAL Envtl., 202 AD3d at 1253; see Matter of Bigdoski v Bausch & Lomb, 197 AD3d 1379, 1380 [2021]; Matter of Gandurski v Abatech Indus., Inc., 194 AD3d 1329, 1330 [2021]). "[W]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and [*2]not be based upon a general expression of possibility" (Matter of Molina v Delta Airlines Inc., 201 AD3d 1193, 1194 [2022] [internal quotation marks and citations omitted]).

The unrefuted medical testimony provided by claimant's treating physician, Gideon Hedrych, established that claimant's hand and thumb injuries were causally related to the distinctive nature of his employment activities.^[FN1]Hedrych recounted claimant's specific job duties over his career for the employer, consistent with claimant's testimony, and summarized his medical findings regarding claimant's limited range of motion, altered sensation, weakness and atrophy, among others. Hedrych diagnosed claimant with repetitive stress injuries including hand and joint derangement with traumatic tendonitis, arthritis and nerve neuropathy. He opined that claimant's diagnoses were causally related to the nature of his job duties, including the use of both hands to operate power tools as a mechanic, and the period in which he experienced the onset of symptoms, providing a rational basis for his conclusions (see Matter of Molina v Delta Airlines Inc., 201 AD3d at 1195). Hedrych further concluded that claimant's subsequent supervisory work, while primarily sedentary, involved typing and writing, which further stressed his hands, wrists and thumbs, and "accelerated his injuries in his wrists and thumbs." In light of the foregoing, and given that no contrary medical opinions were presented, the Board's factual determination that claimant suffered from an occupational disease resulting from repetitive stress is supported by substantial evidence and will not be disturbed (see Matter of Garcia v MCI Interiors, Inc., 158 AD3d 907, 908 [2018]; Matter of Curtis v Xerox, 66 AD3d 1106, 1108 [2009]).

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: The employer failed to obtain an independent medical examination of claimant and was found to have waived its right to do so.

Workers' Compensation Board's factual conclusion that claimant made willful misrepresentations to obtain benefits sustained

Matter of Mikheil (Commissioner of Labor)

2022 NY Slip Op 04075

Decided on June 23, 2022

Appellate Division, Third Department

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

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

Decided and Entered:June 23, 2022

533667

[*1]In the Matter of the Claim of Emad Mikheil, Appellant. Commissioner of Labor, Respondent.

Calendar Date:June 1, 2022
Before:Clark, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

Law Office of Thomas V. Purpi, PC, New York City (Thomas V. Purpi of counsel), for appellant.

Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 11, 2021, which ruled, among other things, that claimant was ineligible to receive pandemic unemployment assistance.

Claimant, who lived in New York City, traveled to Egypt on February 18, 2020 to attend to a family matter, intending to return at the end of March 2020. It is undisputed that the government of Egypt imposed a travel ban on March 16, 2020 due to the COVID-19 pandemic, and closed the country's airports until July 1, 2020; only two flights left the country during the ban, in early April 2020, and claimant was unable to return to the United States until around July 3, 2020. On March 26, 2020, claimant attempted to use his cellphone from Egypt to file a claim for unemployment insurance benefits, but that effort was blocked because of his location; he then applied for benefits by remotely accessing his home computer in the United States, claiming that he was unemployed due to lack of work. The next day, the Department of Labor sent claimant an Out of Country Questionnaire because he was certifying for benefits from Egypt; he completed and returned the forms, disclosing his reasons for being in Egypt and his inability to return home due to the airport closure. His claim for benefits was denied initially on the ground that he was in Egypt and not ready, willing and able to work or to comply with reporting requirements. As he was ineligible for state benefits, the Department sent him an application for pandemic unemployment insurance benefits under the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act), enacted on March 27, 2020, which created a new, temporary joint state-federal program called pandemic unemployment assistance (hereinafter PUA) to provide relief to certain workers affected by the COVID-19 pandemic (see 15 USC § 9021, as added by Pub L 116-136, 134 Stat 313). Claimant completed and submitted the PUA application. Claimant thereafter certified for benefits by telephone for the week ending June 14, 2020, attesting that he was ready, willing and able to begin working immediately. Claimant received $600 in federal pandemic unemployment compensation (hereinafter FPUC) (see 15 USC § 9023) and $504 in PUA benefits (see 15 USC § 9021).

By initial determinations, the Department held that claimant was ineligible for state unemployment insurance benefits effective March 16, 2020 through June 28, 2020, because he was not available for employment and could not and did not properly certify for benefits from Egypt ^[FN1](see Labor Law §§ 591 [2]; 596 [4]). Claimant's right to receive future benefits was reduced by eight days and a monetary penalty of $100 was imposed because he made willful misrepresentations to obtain benefits (see Labor Law § 594), and he was charged with recoverable overpayments of $504 in PUA benefits and $600 in FPUC benefits (see 15 USC §§ 9021 [h]; 9023 [f] [2]; 20 CFR 625.14 [a]). Following a hearing, an [*2]Administrative Law Judge sustained the determinations and, on appeal, the Unemployment Insurance Appeal Board affirmed. Claimant appeals.

We affirm. To receive state unemployment insurance benefits, claimants must be "ready, willing and able to work" in their field (Labor Law § 591 [2]), which presents a question of fact for the Board to resolve (see Matter of Ormanian [Montauk Bus Serv., Inc.—Commissioner of Labor], 167 AD3d 1183, 1184 [2018], lv dismissed 32 NY3d 1221 [2019]). Claimant traveled to Egypt for personal reasons unrelated to employment, where he remained until the airports reopened in July 2020. The unemployment insurance handbook made available to claimant online when he applied for benefits advised that he was responsible to read it, and apprised him that he is not considered to be available for employment unless he can accept work immediately; the handbook directed claimants not to certify for benefits from outside of the United States, its territories or Canada because they may not claim benefits for any period of time that they are outside of those geographic parameters, and that doing so is fraud. Claimant is charged with constructive knowledge of the handbook notices regarding the availability requirement when certifying for benefits from abroad. Although claimant testified that he was prepared to take a job immediately but for the airport closure, this at most presented a factual question that the Board resolved against him and, moreover, substantial evidence supports the Board's determination that, while in Egypt, he was not available for immediate employment in the United States (see Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]; Matter of Kossarska-Goetz [Commissioner of Labor], 111 AD3d 1240, 1240-1241 [2013]).

Claimant contends that he was nonetheless entitled to PUA benefits and, therefore, the Board improperly ordered him to repay those benefits. As relevant here, PUA benefits are available to "covered individual[s]," defined as those who are not eligible for any other unemployment benefits, who certify to two prerequisites: that they are "otherwise able to work and available for work within the meaning of applicable State law" but are "unemployed . . . or unable . . . to work" because of one or more statutorily enumerated factors (15 USC § 9021 [a] [3] [A] [ii] [I] [emphasis added]; [b]; see Matter of Mangiero [Commissioner of Labor], 197 AD3d 1458, 1459 [2021], lv denied 38 NY3d 901 [2022]). Although claimant was ineligible for any other benefits, the Board correctly concluded that he was not available for work within the meaning of State law, i.e. Labor Law § 591 (2), as he was outside of the country and, thus, he did not satisfy the first prerequisite for entitlement to PUA benefits (see 15 USC § 9021 [a] [3] [A] [ii] [I]). Claimant's further argument that he qualified for PUA as he satisfied the second prerequisite, in that he was "unable to reach the place of employment because [*3]of a quarantine imposed as a direct result of the COVID-19" pandemic, is unavailing (15 USC § 9021 [a] [3] [A] [ii] [I] [ee]), as there was no proof that he was exposed to COVID-19 and in quarantine in Egypt. Contrary to claimant's argument, the Board rationally interpreted the governing statutory criteria for PUA benefits and its decision that he was not entitled to such benefits is supported by substantial evidence. To that end, the Board's interpretation is consistent with the guidance provided by the US Department of Labor, the federal agency tasked with providing operating instructions for the joint state-federal pandemic unemployment insurance program (see 15 USC § 9032 [b]), of which we take judicial notice (see United States Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, at I-3, I-5, I-9 [https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf]). Because claimant was not entitled to PUA or FPUC, the Board properly assessed overpayments of benefits paid (see 15 USC §§ 9021 [h]; 9023 [b] [1]; [f] [2]; 20 CFR 625.11, 625.14 [a]; Matter of Frederick [Commissioner of Labor], 197 AD3d 1456, 1457-1458 [2021]). Moreover, under these circumstances, we find no reason to disturb the Board's factual conclusion that claimant made willful misrepresentations to obtain benefits, or the resulting imposition of recoverable overpayments, forfeiture and penalties (see Labor Law §§ 594, 597 [4]; Matter of Falso [Commissioner of Labor], 201 AD3d 1285, 1285-1286 [2022], lv denied ___ NY3d ___ [June 16, 2022]; Matter of Corso [Commissioner of Labor], 144 AD3d 1367, 1368 [2016]). We have examined claimant's remaining contentions and find that none has merit.

Clark, J.P., Pritzker, Ceresia and Fisher, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: The parties agree that Egypt is not a signatory to any Interstate Benefits Payment Plan, which provides a method for persons entitled to unemployment compensation in one state who are absent from that state to receive benefits from another signatory state or territory where they reside, which acts as an agent for the payment of benefits (see 26 USC § 3304 [a] [9] [A]; https://oui.doleta.gov/unemploy/pdf/istate_agree_bene_ payment.pdf). As such, substantial evidence supports the Board's conclusion that claimant did not and could not comply with the reporting requirements from Egypt (see Labor Law § 596; 12 NYCRR 473.1, 473.2, 473.3; Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]).

Absent medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities constitutes substantial evidence that claimant did not establish a causally-related occupational disease

 

Matter of Sanchez v New York City Tr. Auth.

2022 NY Slip Op 04078

Decided on June 23, 2022

Appellate Division, Third Department

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

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

Decided and Entered:June 23, 2022

534023

[*1]In the Matter of the Claim of Brenda Sanchez, Appellant,

v

New York City Transit Authority, Respondent. Workers' Compensation Board, Respondent.

Calendar Date:May 26, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Schotter Millican, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Jones Jones LLC, New York City (David Secemski of counsel), for New York City Transit Authority, respondent.

 

Ceresia, J.

Appeal from a decision of the Workers' Compensation Board, filed February 18, 2021, which ruled, among other things, that claimant did not sustain a causally-related occupational disease and denied her claim for workers' compensation benefits.

In June 2016, claimant, a station agent for over 29 years, applied for workers' compensation benefits, citing repetitive stress injuries to her neck, back, left shoulder, left hip and left hand incurred as a result of her employment. The employer and its workers' compensation carrier controverted the claim. Following hearings at which deposition testimony of the parties' medical providers was submitted and claimant testified, the Workers' Compensation Law Judge disallowed the claim, finding that it was time-barred, which decision the Workers' Compensation Board, among other things, affirmed. Claimant sought judicial review, resulting in this Court reversing the Board's decision and remitting the matter for further proceedings (187 AD3d 1273 [2020]).

Upon remittal, the full Board adopted this Court's decision and referred the matter for further proceedings to the same Board panel that previously reviewed the claim. In a February 18, 2021 decision, the Board, discrediting the opinion of claimant's treating physician, found that claimant's alleged injuries were not causally related to her employment, that she did not sustain an occupational disease and disallowed the claim. Claimant appeals.

We affirm. "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence" (Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d 1236, 1237 [2019] [internal quotation marks and citations omitted]; see Matter of Barker v New York City Police Dept., 176 AD3d 1271, 1272 [2019], lv denied 35 NY3d 902 [2020]). "To this end, a medical opinion on the issue of causation must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [2008] [internal quotation marks and citations omitted]; see Matter of Lichten v New York City Tr. Auth., 132 AD3d 1219, 1219-1220 [2015]). "Importantly, the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Patalan v PAL Envtl., 202 AD3d 1252, 1253 [2022] [internal quotation marks and citations omitted]; see Matter of Molina v Delta Airlines Inc., 201 AD3d 1193, 1194 [2022]).

A review of the record supports the Board's determination that claimant did not establish a sufficient causally-related link between claimant's injuries and a distinctive feature of her employment (see Matter of Patalan v PAL Envtl., 202 AD3d [*2]at 1253). Stephen Roberts, claimant's treating physician, diagnosed claimant with injuries to her neck, back, left shoulder, left hip and left hand, which he opined were caused by "repetitive activity over a period of time working as a station agent [and d]oing the various tasks that required lifting bags of coins." Roberts testified that, "It seemed a lot of her injury was due to lifting heavy objects[,] and bags of coins [were] a big problem. Heavy bags of coins." In that regard, claimant testified that her job duties initially involved unloading tokens from the station turnstiles, carrying the 25- to 30-pound bags of tokens to the station booth and pouring the tokens into the counting machine. However, claimant acknowledged that tokens were not utilized after 2003, but stated that she is still required to lift very heavy bags of quarters in the station booth.

Neither claimant's testimony nor the medical records contain any information as to the frequency or repetitiveness with which claimant lifted any heavy bags within the station booth. Moreover, Roberts' opinion did not indicate a correlation or mechanism by which the bag-lifting activity caused any, let alone all, of the injuries diagnosed. In the absence of such information, the Board rejected Roberts' medical opinion as not credible, which it was entitled to do (see Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1237; Matter of Yanas v Bimbo Bakeries, 134 AD3d 1321, 1321 [2015]). Further, the medical evidence submitted by the employer indicated that claimant's injuries were not a result of repetitive work activity. Consequently, as there was no medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities, substantial evidence supports the Board's determination that claimant did not establish that she sustained a causally-related occupational disease (see Matter of Patalan v PAL Envtl., 202 AD3d at 1253; Matter of Barker v New York City Police Dept., 176 AD3d at 1272-1273; Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1238). We have reviewed claimant's remaining contentions and find them to be unpersuasive.

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Employee's unauthorized absences, together with his failure to follow employer's sick leave policy, served as a good-faith basis for employee's dismissal from the position

Matter of Martinez v City of New York

2022 NY Slip Op 04096

Decided on June 23, 2022

Appellate Division, First Department

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

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

Decided and Entered: June 23, 2022
Before: Renwick, J.P., Kern, Kennedy, Mendez, Higgitt, JJ.

Index No. 154634/20 Appeal No. 16180 Case No. 2021-01665

[*1]In the Matter of Jermell Martinez, Petitioner-Appellant,

v

City of New York et al., Respondents-Respondents.

Law Office of Caner Demirayak, P.C., Brooklyn (Caner Demirayak of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.

 

Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 6, 2021, denying the petition to vacate a determination by respondent New York City Administration for Children's Services (ACS), dated December 3, 2019, which terminated petitioner's employment, and granting respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner failed to show by competent proof that ACS terminated his employment in bad faith, or for an improper or impermissible reason (see Matter of Che Lin Tsao v Kelly, 28 AD3d 320, 321 [1st Dept 2006]; see also Matter of Patterson v City of New York, 173 AD3d 540, 541 [1st Dept 2019], lv denied 35 NY3d 906 [2020]). Petitioner's unauthorized absences from November 13, 2019 to the date of his termination, along with his failure to follow ACS sick leave policy, served as a good-faith basis for firing him (see e.g. Morgan v Kerik, 267 AD2d 8, 9 [1st Dept 1995]; Simpson v Abate, 213 AD2d 190, 191 [1st Dept 1994]).

The petition also fails to adequately allege that ACS violated the Family Medical Leave Act, as petitioner did not assert that he had worked for ACS for 12 months or 1,250 hours, and thus failed to demonstrate that he was an eligible employee under 29 USC § 2611(2)(A)(ii) (see Donahue v Asia TV USA Ltd., 208 F Supp 3d 505, 512 [SD NY 2016]). Indeed, petitioner admits that he was employed by ACS for only seven months, and he failed to preserve for review his contention that ACS and his previous employer, the Department of Education, constituted a "single employer" (see Green v New York City Police Dept., 34 AD3d 262, 263 [1st Dept 2006]).

Petitioner has failed to set forth a claim under the New York City Human Rights Law (Administrative Code of City of NY § 8-107), as the petition does not plead any facts supporting an inference of discrimination based on petitioner's status as a caregiver (see e.g. Whitfield-Ortiz v Department of Educ. of the City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]; Askin v Department of Educ. of City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 23, 2022

The State may not be held liable for the actions of a state-employed judge cloaked with judicial immunity

Moskovits v State of New York

2022 NY Slip Op 04098

Decided on June 23, 2022

Appellate Division, First Department

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

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

Decided and Entered: June 23, 2022
Before: Renwick, J.P., Kern, Kennedy, Mendez, Higgitt, JJ.

Appeal No. 16176 Case No. 2022-00715 Claim No. 135693

[*1]Alexander Moskovits, Claimant-Appellant,

v

The State of New York, Defendant-Respondent.

Alexander Moskovits, appellant pro se.

Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.

 

Order, Court of Claims of the State of New York (Jeanette Rodriguez-Morick, J.), entered August 3, 2021, which granted defendant's motion to dismiss the claim, unanimously affirmed, without costs.

This action is a byproduct of several state and federal actions commenced by plaintiff, a dual citizen of the United States and Brazil who resides in Brazil. In those actions, which have been dismissed, plaintiff alleged that he was not compensated for his "unique work product," which allegedly resulted in $2 billion in "unprecedented transactions" between the Brazilian states and Bank of America. In this Court of Claims action, claimant pro se sues the Justice who dismissed a state action and the "Court Administration," among others.

The claim, including any cause of action for "fraud on the court," is barred by the doctrines of res judicata (see Rojas v Romanoff, 186 AD3d 103, 108 [1st Dept 2020]) and collateral estoppel (see Conason v Megan Holding, LLC, 25 NY3d 1, 17 [2015]) based on dismissal of the "identical parallel federal court action" and a prior order of this Court affirming the orders that claimant now essentially seeks review of (Moskovits v Bank of Am. N.A., 2021 WL 1299038, 2021 US Dist LEXIS 67477 [SD NY 2021], affd 2022 WL 1150626, 2022 US App LEXIS 10479 [2d Cir 2022]). In any event, the court correctly held the claim is barred by the doctrine of judicial immunity, which "extends to all judges and encompasses all judicial acts, even if such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly" (Sassower v Finnerty, 96 AD2d 585, 586 [2d Dept 1983], appeal dismissed 61 NY2d 756, lv denied 61 NY2d 985 [1984]). The State may not be held liable for the actions of a state-employed judge that are cloaked with judicial immunity (Montesano v State of New York, 11 AD3d 436 [2d Dept 2004]). Claimant's allegation of impropriety amounts to nothing more than an allegation of corruption, which is insufficient to overcome judicial immunity (Rosenstein v State of New York, 37 AD3d 208, 208-209 [1st Dept 2007]; Tarter v State of New York, 68 NY2d 511, 518 [1986]; Sassower, 96 AD2d at 586), and no exception to application of the doctrine (Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000]; see Sassower, 96 AD2d at 586-587) is present here.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 23, 2022

Probationary employee failing to file a timely written notice of her decision to exercise her retreat rights adversely affected her right to reinstatement to her prior position

Matter of Civil Serv. Employees Assn., Inc., Local 100, AFSCME, AFL-CIO v City of Mount Vernon

2022 NY Slip Op 04023

Decided on June 22, 2022

Appellate Division, Second Department

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

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

Decided on June 22, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
PAUL WOOTEN, JJ.

2019-03102
(Index No. 663787/18)

[*1]In the Matter of Civil Service Employees Association, Inc., Local 100, AFSCME, AFL-CIO, et al., appellants,

v

City of Mount Vernon, et al., respondents.

Charny & Wheeler P.C., Rhinebeck, NY (Nathaniel K. Charny of counsel), for appellants.

Bond, Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O'Neil of counsel), for respondents City of Mount Vernon and Municipal Civil Service Commission City of Mount Vernon.

Bank, Sheer, Seymour & Hashmall, White Plains, NY (Jay B. Hashmall of counsel), for respondent Deborah Reynolds.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents to reinstate the petitioner Jillian Rizo-Brewington to her prior position of employment, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated February 19, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs.

On or about June 25, 2014, the petitioner Jillian Rizo-Brewington commenced her employment with the City of Mount Vernon in the position of Account Clerk in the Comptroller's Office and, on February 24, 2016, she was permanently appointed to the position of Account Clerk subject to a six-month probationary period. In 2017, Rizo-Brewington was promoted to the position of Senior Account Clerk and, on May 3, 2018, she was terminated from that position for insubordination. On August 31, 2018, Rizo-Brewington and the petitioner Civil Service Employees

Association, Inc., Local 1000, AFSCME, AFL-CIO commenced the instant proceeding pursuant to CPLR article 78 against the respondents, City of Mount Vernon, Municipal Civil Service Commission City of Mount Vernon, and Deborah Reynolds, seeking, inter alia, that Rizo-Brewington be reinstated to employment at her prior position of Account Clerk. The City and Municipal Civil Service Commission City of Mount Vernon interposed an answer and opposed the petition. Reynolds also interposed an answer and opposed the petition. In a judgment dated February 19, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm.

The challenge to the respondents' actions is not ripe for judicial review. Administrative determinations may be challenged in a CPLR article 78 proceeding only after the determination is final (see CPLR 7801[1]; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989). At the time of the commencement of this proceeding, Rizo-Brewington had not made a request to the respondents to be reinstated to her prior position of Account Clerk and they [*2]had not determined that she should not be reinstated. As no determination had been rendered as of the date of the commencement of this proceeding, the controversy is not ripe for judicial review (see Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481; Matter of Ranco Sand & Stone Corp. v Vecchio, 124 AD3d 73, 86-87, affd 27 NY3d 92; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d at 989).

Further, since Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights to her prior position under Municipal Civil Service Commission of the City of Mount Vernon Rule XVI(2)(b), she was not entitled to reinstatement to her prior position of Account Clerk. Mount Vernon Municipal Civil Service Commission Rule (hereinafter Rule) XVI (2)(b) provides that a "provisional, temporary or contingent permanent appointee may return to his/her permanent position at any time by providing written notice to the appointing authority requesting to be returned to such permanent position. The appointing authority shall return such appointee to his/her permanent position within fifteen days of receipt of such written notice." Rizo-Brewington was a provisional employee who possessed retreat rights to her prior position of Account Clerk. However, Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights under Rule XVI(2)(b). Accordingly, since she did not comply with her obligations pursuant to Rule XVI(2)(b), the Supreme Court correctly determined that the respondents were not required to reinstate Rizo-Brewington to her prior position.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

The Civil Service Law §58(1)(a) age requirements for appointment as a provisional or permanent police officer are within the law enforcement exception of the ADEA

 

Kelly v State of New York

2022 NY Slip Op 03952

Decided on June 16, 2022

Appellate Division, Third Department

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

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

Decided and Entered:June 16, 2022

529638

[*1]James F. Kelly, Appellant,

v

State of New York, Respondent.

Calendar Date:April 25, 2022
Before:Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

James F. Kelly, Hyde Park, appellant pro se.

Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from an order of the Court of Claims (McCarthy, J.), entered June 3, 2019, which granted defendant's motion to dismiss the claim.

Claimant, born in 1964, is a part-time police officer. In 2016, seeking to become a full-time officer, claimant applied to take the relevant open competitive civil service exam sponsored by Ulster County. In November 2016, claimant was informed that he was ineligible to sit for the examination, as he exceeded the age limitation imposed by Civil Service Law § 58. Claimant administratively appealed, and the decision was upheld on review by the County.

Claimant then commenced this action in the Court of Claims, setting forth a general disparate treatment claim and alleging specific violations of the following: the Fourteenth Amendment of the US Constitution; the federal Age Discrimination in Employment Act of 1967 (29 USC chapter 14 [hereinafter ADEA]); NY Constitution, article I, § 11 and article V, § 7; Human Rights Law §§ 291 and 296; and Civil Service Law § 54. Defendant moved pre-answer to dismiss the claim due to lack of subject matter jurisdiction and failure to state a cause of action, and the court granted dismissal. Claimant appeals.^[FN1]

Claimant contends that, contrary to its conclusion, the Court of Claims had subject matter jurisdiction over his federal constitutional causes of action, under Court of Claims Act § 8 and 42 USC § 1983. We disagree. "[F]ederal constitutional claims may not be asserted in the Court of Claims, given that the statutory basis for such claims, 42 USC § 1983, authorizes claims only against a 'person' and defendant is not a person within the meaning of this statute" (Oppenheimer v State of New York, 152 AD3d 1006, 1008 [2017]; accord Moreland v State of New York, 200 AD3d 1362, 1365 [2021], lv denied 38 NY3d 906 [2022]; see Will v Michigan Dept. of State Police, 491 US 58, 64 [1989]). Thus, the Court of Claims correctly dismissed the claims alleging violations of the US Constitution for lack of subject matter jurisdiction.

Turning to the Court of Claims' dismissal of claimant's ADEA claim, claimant argues that defendant's enforcement of Civil Service Law § 58 violates the federal act. The ADEA protects workers over the age of 40 from discrimination in hiring due to the worker's age. Crucially, however, it contains an exception for law enforcement, which provides that states may lawfully refuse to hire, on the basis of age, "an individual as a . . . law enforcement officer . . . pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [29 USC chapter 14]" (29 USC § 623 [j] [2]). Pursuant to this exception, defendant "need not prove that age is a [bona fide occupational qualification] for its police officers" (Kopec v City of Elmhurst, 193 F3d 894, 902 [7th Cir 1999]; see Feldman v Nassau County, 434 F3d 177, 182 n 5 [2nd Cir 2006]). Civil Service Law § 58 (1) (a) states that "no person shall be eligible for provisional or [*2]permanent appointment in the competitive class of the civil service as a police officer . . . unless he or she shall satisfy" the requirement that "he or she is not less than [20] years of age as of the date of appointment nor more than [35] years of age as of the date when the applicant takes the written examination."

Claimant does not allege that defendant's age limitation hiring plan is a subterfuge to evade the purposes of the ADEA; rather, claimant contends that the exception does not apply here, where claimant worked as a part-time officer and attempted to transfer into full-time employment. However, courts have regularly interpreted alleged violations of the ADEA under similar circumstances, where a claimant seeks to reclassify from part-time to full-time employment, as failure to hire claims (see e.g. Kopec v City of Elmhurst, 193 F3d at 896, 904; Weiner v City College of City Univ. of New York, 1997 WL 381799, *1, *4, 1997 US Dist LEXIS 9705, *2, *13 [SD NY, July 9, 1997, No. 95 Civ 10892 (JFK)]).^[FN2]The instant claim does not require a different analysis. As claimant's contentions constitute a failure to hire claim, they are unavailing; Civil Service Law § 58 (1) (a) falls squarely within the law enforcement exception of the ADEA (see Feldman v Nassau County, 434 F3d at 184; Petrelli v City of Mount Vernon, 9 F3d 250, 253 [2nd Cir 1993]; Ruderman v Police Dept. of City of New York, 857 F Supp 326, 329 [SD NY 1994]). The Court of Claims therefore properly dismissed claimant's ADEA claim for failure to state a cause of action.

Claimant contends that the age requirement of Civil Service Law § 58 also violates Civil Service Law § 54 and that the Court of Claims erred in dismissing this claim. However, Civil Service Law § 54 contains the caveat that "[n]othing herein contained . . . shall prevent the adoption of reasonable minimum or maximum age requirements for open competitive examinations for positions where it is determined by the department and approved by the commission that such age requirements would be reasonable minimum qualification for such position"; thus, Civil Service Law § 54 does not prohibit the enforcement of § 58 (see Matter of Beloten v Diamond, 276 AD2d 438, 439 [2000]; Timerman v Bence, 176 AD2d 1220, 1221 [1991]). Accordingly, this claim must also be dismissed for failure to state a cause of action.

Claimant's remaining contentions have been considered and are without merit.

Garry, P.J., Aarons, Pritzker and Fisher, JJ., concur.

ORDERED that the order is affirmed, without costs.

Footnotes

Footnote 1: To the extent that claimant appeals the dismissal of his claims pursuant to NY Constitution, article V, § 7 and Human Rights Law § 296, he has not advanced any arguments relevant thereto on appeal; thus, these claims are deemed abandoned (see Prendergast v Swiencicky, 183 AD3d 945, 946 n 1 [2020], lv denied 36 NY3d 944 [2020]; Matter of Micklas v Town of Halfmoon Planning Bd., 170 AD3d 1483, 1485 [2019]).

Footnote 2: Claimant's challenge to an earlier denial of the opportunity to sit for the same exam, brought in federal court, was denied under the same analysis (Kelly v County of Ulster, 2018 WL 5811423, *4, 2018 US Dist LEXIS 189724, *9-*10 [ND NY, Nov. 6, 2018, 1:18-CV-00240 (BKS/DJS)]). His contention that defendant is not an employer, but a labor organization, was also rejected in that case (id.). We too reject that contention.