Judicial review of a petition seeking the vacating of an arbitration award

The Long Beach Professional Fire Fighters Association [Union] and the City of Long Beach [City] entered into a collective bargaining agreement [CBA] covering the period from July 1, 2004, through June 30, 2010, and thereafter continued pursuant to the Triborough Law, Civil Service Law § 209-a[1][e].* Firefighters and any municipal employees assigned to the fire department were covered by the CBA.

City appointed several paramedics, and unilaterally set their terms of employment. Union filed a grievance and, when the grievance was denied, filed a demand for arbitration. City's efforts to stay the arbitration with respect to Union's grievance as related to the paramedics were unsuccessful.**  

Ultimately the arbitrator issued an award determining that City violated certain provisions of the CBA when it set contrary terms and conditions of the paramedics' employment. Union commenced this proceeding pursuant to CPLR Article 75 to confirm the arbitration award while City cross-moved pursuant to CPLR 7502(a)(iii) to dismiss the petition or, in the alternative, to reassign the petition to the Justice who presided over the prior proceeding, and to vacate the arbitration award. 

Supreme Court granted the Union's petition to confirm the award and denied the City's cross-motion. The City appealed.

The Appellate Division, noting that "Judicial review of arbitration awards is extremely limited", said a court may vacate an arbitrator's award that "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power, citing (Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, and other decisions. Additionally, the Appellate Division opined "an award may be vacated where 'it exhibits a 'manifest disregard of law'" and the burden is on the movant to establish grounds for vacatur by clear and convincing evidence.

Finding that the City failed to demonstrate by clear and convincing evidence that the arbitration award should be vacated on the grounds that [1] it was irrational; [2]  exhibited a manifest disregard of the law; [3] that the arbitrator had engaged in misconduct or [4] that the award violated public policy, held that Supreme Court had properly granted Union's petition to confirm the arbitration award and had properly denied the City's cross-motion to vacate the award.

* See Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458).

** See Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 161 AD3d 855.

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

Public Personnel Law Handbooks - New York State and its political subdivisions

The New York Public Personnel Law handbooks listed below are available for purchase from BookLocker.com, Inc.

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this electronic handbook focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Executive Budget report issued by New York State Comptroller Thomas P. DiNapoli

Click on text highlighted in color to access full text of the report

 

Despite the state’s economic recovery since the pandemic first hit three years ago, significant headwinds will present challenges to ongoing economic growth and fiscal stability. The state faces prolonged inflation, rising federal interest rates and the end of federal relief aid that was instrumental in balancing the past two budgets, according to a report by State Comptroller Thomas P. DiNapoli on the State Fiscal Year (SFY) 2023-24 Executive Budget.  

The Executive Budget proposes $227 billion in All Funds spending in SFY 2023-24, an increase of $5.4 billion, or 2.5%, from the prior year. The Division of the Budget (DOB) projects outyear gaps of $5.7 billion in SFY 2024-25, $9 billion in SFY 2025-26, and $7.5 billion in SFY 2026-27. The gaps result from reduced estimates of tax collections due to a forecasted economic downturn and increases in recurring spending, principally in school aid and Medicaid.

“With economic risks and the impending loss of federal financial assistance ahead, now is the time for New York to carefully prepare for the short- and long-term,” DiNapoli said. “The budget proposals to increase state reserves and strengthen the state’s rainy-day reserves should be supported. At the same time, there are several concerning proposals that exempt approximately $12.8 billion from competitive bidding and oversight requirements, leaving too much in the dark. The budget also advances debt proposals that reinforce concerns about the affordability of debt levels and the transparency and accountability of current debt practices. I urge lawmakers to reject these proposals.”

DiNapoli’s assessment of the Executive Budget identified several economic, revenue and spending risks and other concerns.

Economic and Revenue Risks

Risks associated with the economic environment include continued inflation, the impact of interest rate hikes and disruptions related to Russia’s invasion of Ukraine. Increased interest rates by the Federal Reserve have resulted in increased borrowing costs for consumers and businesses. With inflation expected to remain elevated and additional rate hikes expected in 2023, consumer and business spending could be further constrained.

With the Executive Budget Financial Plan forecasting a recession, DOB reduced its projections of tax revenues for the upcoming fiscal year by $2.1 billion and a total of $10.3 billion over the life of the Plan. Should a recession be more severe or be longer in duration, revenues could decline more than currently forecasted. The changes in the labor market are also a risk to the state economy. New York’s job recovery from the pandemic has lagged the nation’s, there are fewer workers in the labor force and the labor force participation rate is among the lowest in the nation.

Structural Balance and Use of Federal Funds

State budgets often include provisions that cause recurring spending to grow more quickly than recurring revenue, creating a structural imbalance and budget gaps. Such gaps are often closed with short-term solutions. The Executive Budget includes $14.9 billion in SFY 2023-24 resources that DiNapoli’s office identifies as either temporary (more than one year but not permanent) or non-recurring (one year). About 98% of that funding results from temporary federal assistance related to the pandemic (69%) and tax increases enacted in SFY 2021-22 (28%). 

The American Rescue Plan provided the state with $12.7 billion of funding from the State and Local Fiscal Recovery program that could be used for a broad range of purposes, including replacement of lost tax revenue due to the pandemic. The Financial Plan continues to assume these funds will be used through SFY 2024-25, including $2.25 billion in SFY 2023-24 and $3.64 billion in SFY 2024-25. Little information is available to determine whether the funding has been used equitably, efficiently and with the proper balancing of short-term need with long-term sustainability. Increased transparency on the planned use of the funds is needed.

There are also significant spending risks. In June 2023, the state will begin redetermining eligibility for all enrollees in Medicaid, the Essential Plan and Child Health Plus programs that are projected to reduce coverage by 10.3% to 8.3 million individuals by April 2024. In the Medicaid program, the Financial Plan projects a decline of almost 888,000 individuals in a single year. If enrollment exceeds current projections, significant unbudgeted costs will occur. For example, if only half of the assumed decline is realized, there could be an additional $6.2 billion in total costs, including $2.2 billion in state costs in SFY 2023-24.

Reserve Funds

For years, DiNapoli has warned of the state’s underfunding of its statutory rainy-day reserves. The Executive Budget proposal increases the balance of statutory rainy-day reserves to $6.5 billion at the end of the current fiscal year and includes legislation to further increase the maximum annual deposits to 10% of State Operating Funds (SOF) spending and the maximum fund balance to up to 20% of SOF spending. If enacted, these measures would provide tools to manage economic or other challenges ahead and ensure fiscal stability. DiNapoli urges lawmakers to support these actions.

The Financial Plan also indicates unrestricted fund balances designated for “economic uncertainties” would grow to $13.5 billion at the end of the fiscal year. DiNapoli urges greater priority should be placed on building statutory rainy-day reserves rather than relying on informal, unrestricted reserves.

Debt Practices

The Executive Budget proposes to continue circumventing the state’s debt cap by utilizing a loophole in the Debt Reform Act for structuring the Gateway Plan debt. The Executive Budget would further reduce transparency and accountability by classifying the Gateway loan in a manner that is inconsistent with past practice and fails the most basic standards of transparency by continuing to not count this debt in projections of any debt outstanding. These actions result in a misleading picture of the size of the state’s debt burden.

The Executive Budget again proposes “backdoor borrowing” authorizations for up to $5 billion in short-term cash flow borrowings during SFY 2023-24 that are redundant to the existing ability to issue more cost-effective Tax and Revenue Anticipation Notes (TRANs). Given the state’s current strong cash balances, it is unclear why this more costly form of borrowing is proposed.

Collectively, these and other actions in recent budgets have rendered the state’s current debt limits functionally meaningless. DiNapoli recently issued a report highlighting how caps and other debt restrictions set in statute have not worked to rein in state debt or stop inappropriate borrowing practices, and recommended several reform measures to address these problems.

Transparency

The SFY 2023-24 Executive Budget continues a problematic pattern from past budgets that include eliminating the Comptroller’s contract pre-review oversight and waiving competitive bidding requirements for certain contracts, including the proposal related to selection of certain Managed Long Term Care plans. In addition, the budget includes an appropriation that would unduly and inappropriately impair the Office of the State Comptroller’s duty to conduct independent audits of the New York State Health Insurance Program. 

This report details provisions of the SFY 2023-24 Executive Budget proposal submitted on February 1. The report does not reflect 30-day amendments released on March 3 or the amended Financial Plan released on March 8

Report

New York State Fiscal Year 2022-23 Executive Budget Review

Debt Report

Terminating an employee in the Classified Service prior the employee's completion of his or her maximum period of probation

The Appellate Division denied a petition of an employee [Plaintiff] seeking to annul the appointing authority's [Employer] decision to terminate the employment of the Plaintiff before she completed her probationary period.

The court opined that as probationary employee, Plaintiff "may be discharged for any or no reason at all in the absence of a showing that ... her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law", citing Smith v New York City Department of Corrections, 292 AD2d 198.

The Appellate Division noted Plaintiff alleged "no unlawful motive for her termination and failed to satisfy her burden of demonstrating bad faith". Further, said the court, Petitioner's own affidavits attesting to her satisfactory job performance "did not create a substantial issue of bad faith sufficient to warrant a hearing in light of [the Employer's] submission of a termination memo documenting several performance failures, which provided a rational basis for [Employer's] decision".

As the Court of Appeals opined in York v McGuire, 63 NY2d 760, "After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith."

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

Advisory Memorandum 2023-02, Special Military Benefits and Post-Discharge Benefits through December 31, 2023

The Department of Civil Service has published the following Attendance and Leave Memorandum:

Advisory Memorandum 2023-02, Memoranda of Understanding

Extension of Special Military Benefits and Post-Discharge Benefits

Effective through December 31, 2023

Th text of Advisory Memorandum 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/AdvMemo23-02.cfm

A PDF version of the Advisory Memorandum 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/AM2023-02.pdf

 

To view previous published Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cf

 

Applying the Doctrine of Estoppel to a public entity

The Doctrine of Estoppel is sometime sought to be applied to a government entity in an effort to require or prevent the governmental entity from performing, or failing to perform, an alleged action or commitment that was relied upon by the complaining party.

In Taranto v City of Glen Cove, 212 AD3d 826, the Appellate Division addressed the application of the Doctrine of Estoppel in a challenge to an action taken by the City with respect health insurance benefits then enjoyed by certain of the City's employees.

The Appellate Division opined:

"A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights", citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326. The court concluded that a local government is "free to terminate retirement health insurance and other benefits they may have previously elected to provide [by resolution] to employees and other officials.

The court also noted that "[as] a general rule, estoppel may not be invoked against a governmental body with regard to the exercise of its governmental functions or its correction of an administrative error [citations omitted] and "[an] exception to the general rule applies only in the 'rarest of cases' [typically] involving the wrongful or negligent conduct of a governmental subdivision, or its misleading nonfeasance, which induces a party relying thereon to change his or her position to his or her detriment resulting in manifest injustice."

In this instance the Appellate Division concluded that Taranto failed to establish that his complaint fell within the narrow exception warranting estoppel to be applied against the City.

* The court cited:  Matter of Weaver v Town of N. Castle, 153 AD3d 531; Iasillo v Pilla, 120 AD3d 1192; Matter of Kapell v Incorporated Vil. of Greenport, 63 AD3d 940; and Matter of Handy v County of Schoharie, 244 AD2d 842.

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

Eligibility of a school district employee for unemployment insurance benefits for the period between two successive academic years

With respect to eligibility of employees of a school district for unemployment insurance benefits between "two successive academic years, the Appellate Division, citing Labor Law §590(1), said "[a] professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment." Further, said the court, "A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

A school bus driver [Claimant] had worked for the employer [School District] for over 30 years. Starting March 16, 2020, as a result of the COVID-19 pandemic, Claimant was not required to work but continued to receive her regular salary for the remainder of the 2019-2020 school year, ending on June 19, 2020. On June 3, 2020, Claimant received a letter from the School District informing her that it wished to retain her in the same position during the 2020-2021 school year, which she signed and returned to the School District. 

Despite this letter, prior to the end of the 2019-2020 school year, Claimant filed claims for unemployment insurance benefits. From June 21, 2020 until August 23, 2020, Claimant received unemployment insurance benefits, as well as federal pandemic unemployment compensation and lost wage assistance pursuant to the Coronavirus Aid, Relief and Economic Security Act of 2020 [the CARES Act]. 

The Unemployment Insurance Appeal Board [Board], among other things, sustained the initial determination finding that Claimant was not totally unemployed during the week ending June 21, 2020 and that she was ineligible for Pandemic Unemployment Assistance [PUA] benefits.* Claimant appealed the Board's determination.

The Appellate Division noted that, considering the letter assuring Claimant of the continued applicability of the collective bargaining agreement as well as the testimony concerning Claimant's seniority and the continued need for busing, there was substantial evidence supporting the Board's finding that the School District provided Claimant with a reasonable assurance of continued employment.

Addressing Claimant's eligibility for PUA benefits for the period between academic terms outside of her contract, the Appellate Division opined "substantial evidence supports the Board's finding that Claimant was ineligible for such benefits."

* Citing Matter of Barnett [Broome County Community Coll.—Commissioner of Labor], 182 AD3d 763, the Appellate Division observed that factual issues are for the Unemployment Insurance Appeal Board to determine and, as such, its decision will be upheld if supported by substantial evidence.

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

The claimant for workers' compensation benefits has the burden of showing the claimed occupational disease or injury resulted from a distinctive feature of employment

Claimant [Plaintiff] had been employed by the New York City Transit Authority [NYCTA] for 33 years. She served as a railroad clerk until 1995 and thereafter as  a station agent. Plaintiff filed a claim for workers' compensation benefits for the occupational disease of bilateral carpal tunnel syndrome that Plaintiff attributed to her performing repetitive job duties during her 33-year employment by NYCTA.

NYCTA controverted the claim and ultimately a Workers' Compensation Law Judge [WCLJ] disallowed the claim, finding, among other things, that Plaintiff had not established that her medical condition was causally related to her employment duties. The Workers' Compensation Board [Board] affirmed the WCLJ's decision, finding that Plaintiff had failed to demonstrate a sufficient causal link between her alleged occupational disease and a distinctive feature of her employment. Plaintiff appealed the Board's decision.

The Appellate Division affirmed the Board's ruling, explaining:

1. 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"; and

2. "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 ... notwithstanding other evidence in the record that could support a contrary conclusion".

Here, said the court, a review of the record supports the Board's determination that Plaintiff did not present sufficient credible medical evidence to establish a causal relationship between her bilateral carpal tunnel syndrome and a distinctive feature of her employment.

Citing Matter of Yolinsky v Village of Scarsdale, 202 AD3d at 1265, the Appellate Division opined "... it is within the province of the Board to evaluate the medical evidence before it." Considering "the less-than-compelling medical evidence tendered by Plaintiff," the court found that substantial evidence supported the Board's finding that Plaintiff failed to establish that she had sustained an occupational disease.

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

School district audits released by the New York State Comptroller during the week ending March 4, 2023

On March 3, 2023, following audits were issued by State Comptroller DiNapoli:

Click on the text highlighted in color to access the full text of the audit report. 

School District Audits

Gorham-Middlesex Central School District – Online Banking Access (Ontario County) District officials did not ensure online banking access was limited to board-authorized users because no one reviewed online banking users’ access and permissions. District officials also did not monitor online banking transactions. As a result, the risk that the district may become the victim of a cybercrime and experience financial losses is heightened. Of the district’s 10 online banking users, six were not authorized to conduct online banking and were inappropriately provided with access. Five of the six users not authorized to conduct online banking and two others inappropriately had administrative permissions to bank accounts.

Discovery Charter School – Network and Financial Software Access Controls (Monroe County) School officials did not ensure that network and financial software access controls were adequate. As a result, data and personal, private and sensitive information are at greater risk for unauthorized access, misuse or loss. In addition to finding sensitive information technology (IT) control weaknesses, which was communicated confidentially to officials, auditors found that officials did not: adopt adequate network and financial software policies; establish an IT contingency plan; or provide IT security awareness training. Auditors found 18% of the school’s enabled nonstudent user accounts were not needed, which created additional entry points for someone to inappropriately access the network. Two of the three financial software user accounts unnecessarily had full access and three individuals unnecessarily shared access to a user account with administrative permissions.

East Meadow Union Free School District – Overtime (Nassau County) District officials did not properly approve, monitor and control overtime worked by the facilities and operations department employees. The department’s overtime costs were 97% of the district’s total overtime costs during the audit period. Auditors reviewed $381,878 (29%) of those costs and found that the department employees were paid $194,514 for overtime that was not approved until up to 20 days after the work was performed. Department workers were also paid $31,486 for 605 hours of overtime worked without any supervisory approval. District officials exceeded the department’s overtime budget from 2018-19 through 2021-22 by $1,107,396.

Greene Central School District – Unused Leave Payments and Leave Accruals (Chenango County) Officials did not ensure that leave accruals were accurate or payments for unused leave and separation payments were authorized and calculated correctly. District officials made errors in 76% of district employees’ accrued leave calculations. The district incorrectly calculated 61% of the unused vacation leave, sick leave and retirement incentive payments made during the audit period. Of the 38 payments totaling approximately $270,000 that auditors reviewed, 23 had errors totaling $8,530, including $4,900 in payments for unused vacation leave which were not authorized by the employees’ collective bargaining agreements.

Rye Neck Union Free School District – Health Insurance Cost Savings (Westchester County) District officials could achieve cost-savings by offering a buyout in lieu of health insurance coverage. Total savings could range between approximately $130,000 and $190,000 annually if the district offered family plan coverage buyouts of $4,500 or $6,000 and individual plan coverage buyouts of $2,000 or $2,500.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

A long career as an administrator and the absence of any prior disciplinary action found insufficient to mitigate the disciplinary penalty imposed, dismissal

Petitioner was the administrator of the County's Adult Care Center [ACC], a nursing home. Following a disciplinary hearing, a Hearing Officer found Petitioner guilty of eight of the numerous charges filed against him pursuant to §75 of the Civil Service Law and recommended that he be dismissed from service. The ACC's appointing authority sustained the Hearing Officer's findings with respect to seven of the charges and terminated Petitioner's employment. Petitioner then commenced this CPLR Article 78 proceeding challenging the determination.

Central to evaluating the penalty imposed, dismissal, the Appellate Division noted "Petitioner either suggested to or directed a subordinate to share her login credentials for a database maintained by the Centers for Disease Control and Prevention [CDC] with another employee to enable that employee to fulfill ACC's COVID-19 reporting requirements while the subordinate was on vacation. The ACC contended that such behavior constituted misconduct in violation of ACC's rules and ethics policy,* and, also, displayed incompetence insofar as Petitioner failed to recognize that his behavior could have resulted in ACC incurring penalties.

Petitioner had been invited to register with CDC's partner portal to begin the process of obtaining access to the database which, if approved, would grant him privileges to input data into the database. Petitioner never logged on to the partner portal and was relying on another employee to do the COVID-19 reports when required. 

The Appellate Division's decision notes that when an employee "refused to share her login information - fearing that doing so would violate [ACC's] rules and amount to a crime - [Petitioner]" became angry and purportedly stated, "I don't know why everything is such a big deal here". When told it was unlawful to ask the employee to share login information permitting "... reporting under someone else's credentials...", Petitioner allegedly replied, "why is everyone so uptight here."

The Appellate Division found that "substantial evidence exists" to support the Hearing Officer's determinations with respect to charges Nos. 3, 8, 9, 10 and 16, and said it was "unpersuaded by [Petitioner's] contention that the penalty of termination shocks the conscience and should be annulled."

Conceding that Petitioner had no prior disciplinary record and a long career as a health care administrator, the Appellate Division explained "when considering [Petitioner's]  position as the administrator of a nursing home during the COVID-19 pandemic, which required the highest degree of integrity, diligence and competence in light of the vulnerability of ACC's clients and staff," it could not conclude that the penalty of termination was "so disproportionate to the charged offenses as to shock one's sense of fairness". 

Citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317, quoting Matter of Young v Village of Gouverneur, 145 AD3d 1285, the court declined to disturb the penalty imposed, Petitioner's dismissal from his position.

* The record contains a copy of ACC's written code of conduct and a certification by Petitioner acknowledging its receipt. The code of conduct provided, in relevant part, that "[t]he County is committed to complying with the laws and regulations that govern the Federal and State programs that it administers .... [Employees] must abide by the policies and procedures and the standards set by the County." ACC's ethics policy provided: "It is the policy of the County to observe all laws and regulations applicable to its business and to conduct business with the highest degree of integrity. To accomplish this, all [employees] must obey the laws and regulations that govern their work and always act in the best interest of the ... County."

Click HERE to access the decision of the Appellate Division posted on the Internet.

Making public records available for public inspection and copying

In this CPLR Article 78, the Suffern Education Association sought to compel "complete disclosure" of certain "redacted documents" supplied to it by the Suffern Central School District pursuant to the Association's Freedom of Information Law [FOIL] request. The  School District had responded to the Association's FOIL request, in part, by including copies of several emails that had been "heavily redacted".

Supreme Court, after its in camera review of the redacted emails, directed the School District to provide the Association with unredacted documents. Supreme Court also awarded the Association its attorneys' fees and other costs associated with its Article 78 action. School District appealed the Supreme Court's rulings.

The Appellate Division affirmed the Supreme Court's decisions, explaining:

1. "FOIL requires that public agencies 'make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions." Courts "typically construe exemptions narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'"; and

2. Public Officers Law §87(2)(g)(i) provides that an agency may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not," among other things, "statistical or factual tabulations or data."**

The Appellate Division, after its in camera inspection of the email communications at issue, concluded that the Supreme Court had properly determined that the redacted information constitutes factual data that is not exempt from disclosure and that the School District did not meet its burden to show that the redacted portions of the emails at issue were, in fact, exempt from disclosure.

Further, opined the Appellate Division, "Supreme Court providently exercised its discretion in awarding the [Association] attorneys' fees and other costs," noting that the Legislature had provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings "[in] order to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL."

Sustaining the Supreme Courts award of attorney's fee and other litigation costs, the Appellate Division observed that "it is undisputed that the [School District], in effect, denied the [Association] access to nonexempt documents, as no [such] documents were provided [to the Association] by the [School District's] self-imposed response date."

* Public Officers Law Article 6.

** The Appellate Division described factual data "as objective information, rather than 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making.'"

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

School district charged with negligent supervision, hiring, and retention of an employee and with breaching its duty in loco parentis

In this action to recover damages for negligent supervision, hiring, and retention, the Plaintiff, a former student of the defendant school district [School District] appealed Supreme Court's decision dismissing his complaint insofar as it alleged that an employee of the School District physically and sexually assaulted him while he was attending a party at the employee's home.

The Appellate Division affirmed the lower court's ruling, explaining that in determining a motion to dismiss such a CPLR 3211(a)(7) motion:

1. The pleadings are afforded a liberal construction;

2. The facts as alleged in the complaint are accepted as true; and

3. The plaintiff is accorded the benefit of every possible favorable inference.

However, citing Simkin v Blank, 19 NY3d 46, the Appellate Division explained that "allegations consisting of bare legal conclusions ... are not entitled to any such consideration." 

Here, said the court, Plaintiff has alleged a cause of action against the School District to recover damages for breach of a duty in loco parentis, and this is not a cognizable cause of action under New York law.

To the extent that the Plaintiff alleged a negligent supervision cause of action against the School District based on allegations that it failed to adequately supervise Plaintiff and, or,  its employee, the Appellate Division observed that "such cause of action was legally insufficient" because Plaintiff's allegations in the complaint, if accepted as true, demonstrated that the subject incident took place when the district had no custody or control of the Plaintiff and no duty to monitor or supervise its employee's conduct.

The Appellate Division's decision also observed that Plaintiff's complaint does not include factual allegations regarding any improper interactions between him and the School District's employee "that took place on school grounds during school hours prior to the subject incident."

Addressing Plaintiff's allegation with respect to negligent hiring and, or, retention causes of action against School District, the Appellate Division opined that Supreme Court "properly directed dismissal of such causes of action, since the [Plaintiff] failed to sufficiently plead that the [School District] knew or should have known of [its employee's] propensity for the type of conduct at issue." In addition, the court noted that although such causes of action need not be pleaded with specificity, here the complaint contained "little more than bare legal conclusions" as to the employee's propensity for improper conduct that were entirely unsupported by the alleged facts.

Finally, the Appellate Division said that even assuming that the complaint sufficiently pleaded notice of the School District's employee's "propensity for the type of conduct at issue, the [Plaintiff's] own allegations in the complaint, if accepted as true, demonstrated that there was no nexus between [the employee's] employment with the district and the subject incident, which were separated by time, place, and the intervening independent acts of [the employee]".

The bottom line: The Appellate Division held that the Supreme Court properly granted the School District's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

Click HERE to access the Appellate Divisions decision posted on the Internet.