ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Dec 27, 2022

Determining if an injury experienced in a training situation constitutes an accident for the purposes of RSSL §363

A firefighter [Petitioner] filed an application for accidental disability retirement benefits claiming that he was permanently disabled as a result of an injury to his left eye that was sustained during a mandatory firefighter training exercise.

The New York State and Local Police and Fire Retirement System denied Petitioner's application holding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363 and Plaintiff was awarded performance of duty retirement benefits.

Ultimately an administrative hearing was conducted and the Hearing Officer denied Petitioner's application based on the Hearing Officer's finding that the underlying incident was not an accident as it occurred during the course of Petitioner's routine employment duties and was a risk inherent in the performance of such duties.

The Comptroller [Respondent] sustained the Hearing Officer's decision, prompting the Petitioner to commence the instant CPLR Article 78 proceeding to challenge Respondent's determination.

Citing Matter of Bohack v DiNapoli, 197 AD3d 1384, the Appellate Division noted that Petitioner "bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law"* and Respondent's determination in this regard will be sustained "if supported by substantial evidence." 

The Appellate Division explained "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental".

According to the accident report prepared the day of the incident by the deputy chief to whom Petitioner reported the incident, which Petitioner signed, Petitioner indicated that he was injured in a "collision with fellow firefighters" during the live-fire training exercises. Petitioner acknowledged during the hearing and confirmed "it was normal to bump into things during such zero-visibility exercises."**

In the words of the Appellate Division:

1. "Petitioner provided various explanations for describing the incident shortly after it occurred as the result of a collision rather than kicking;" BS

2. The Hearing Officer credited — "as 'more reliable, credible and plausible' — [Petitioner's] more contemporaneous account of the incident reflected in the accident report, over his subsequent, inconsistent testimony, which was found to be 'unsubstantiated,' in concluding that the incident did not constitute an accident."***

The Appellate Division opined than under settled law, "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom." citing Matter of O'Mahony v DiNapoli, 157 AD3d 1107,

As the record reflected that the training exercise program "arose from, and was a required part of, [Petitioner's] routine duties as a firefighter and given that the attendant risks of that training", the Appellate Division found that "substantial evidence supports the determination denying Petitioner's application for accidental disability retirement benefits."

* The Retirement and Social Security Law defines an "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" [See Matter of Kenny v DiNapoli, 11 NY3d 873]

** Petitioner testified that, as part of his standard duties as a firefighter, he engaged in training exercises at the training center several times a year that included live-fire search and rescue operation drills where controlled fires were set, reducing visibility to zero. 

*** The conflict in Petitioner's accounts presented a credibility issue for the Hearing Officer and, ultimately, the Comptroller to resolve. 

Click HEREto access the Appellate Division's decision posted on the Internet.

Dec 26, 2022

New York City Office of Administrative Trials and Hearing Administrative Law Judge Ingrid M. Addison recommended termination of employment of a sanitation worker for posting racially insensitive images and commentary on social media while identifying himself as a New York City employee and for violating the agency’s sick leave policy.

Click on the text highlighted in color to access the material cited posted on the Internet.

https://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1320.pdf

Read more about Dep’t of Sanitation v. J. L. and other personnel cases

Summaries of legal actions or "squibs" of selected decisions posted on the Internet during the month of December 2022

In law the term "squib" refers to a very brief review of a single case or a single point of law from a case [Squib©Copyright 1997-2022 airSlate Legal Forms, Inc. d/b/a USLegal].

Applicant for performance of duty disability retirement benefits "bore the burden of proving that [s]he was 'physically or mentally incapacitated from performance of duty as the natural and proximate result of a disability sustained in such service'".

Click the following URL to access this decision posted on the Internet at:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06968.htm 

Squibs of selected decisions posted on the Internet during the month of December 2022

In law the term "squib" refers to a brief summary of a single case or a single point of law recited in a decision. 

The term Squib© is Copyrighted [1997-2022] by airSlate Legal Forms, Inc., 3720 Flowood Dr, Flowood, Mississippi, 39232, d/b/a USLegal.

Section 11(b) of the Court of Claims Act requires a claim to specify "(1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; (5) 'a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability' and (6) 'the total sum claimed.'"

Click the following URL to access this decision posted on the Internet at  https://www.nycourts.gov/reporter/3dseries/2022/2022_07257.htm

A writ of prohibition is available to a petitioner "only where there is a clear legal right and only when the body or officer acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction."

N.B.The writ of prohibition is one of number of the ancient “common law” writs. Other such ancients writs include 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 injunction - a judicial order preventing a public official from performing an act; 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]. New York State's Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

Click the following URL to access this decision posted on the Internet at  https://www.nycourts.gov/reporter/3dseries/2022/2022_07231.htm

Where a declaratory judgment action seeks an adjudication of rights that could be resolved in a proceeding pursuant to CPLR Article 78, the statute of limitations applicable to a CPLR Article 78 proceeding applies.

Click the following URL to access this decision posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_07235.htm

Supreme Court properly denied New York City Transit Authority's [NYCTA] motion to prohibit Plaintiffs' counsel and employees from asking questions of NYCTA officials at any public hearing without first submitting the proposed questions to NYCTA's counsel prior to the public hearing and disclosing Plaintiffs' counsel and employees identity at the hearing as [1] the questions did not concern the subject of Plaintiffs' counsel's representation and [2] involved a matter of public concern.

Click the following URL to access this decision posted on the Internet at  https://www.nycourts.gov/reporter/3dseries/2022/2022_07181.htm

Grievances such as the one at issue in this action are arbitrable so long as no public policy, statutory, or constitutional provisions prohibit them and they are reasonably related to the provisions of the relevant Collective Bargaining Agreement [CBA] which requirement is satisfied when the CBA outlines a detailed procedural mechanism by which the grievant may seek arbitration.

Click the following URL to access this decision posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2022/2022_07095.htm

Under New York law there is a broad presumption that "the public is entitled to access to judicial proceedings and court records".

Click the following URL to access this decision posted on the Internet at:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06848.htm 

Facts pleading constitutional violations may be brought in a CPLR Article 78 proceeding.

Click the following URL to access this decision posted on the Internet at:  https://www.nycourts.gov/reporter/3dseries/2022/2022_07018.htm  

NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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