Applicant's claim for workers' compensation benefits based on his alleged participation in the "9-11 World Trade Center rescue, recovery or cleanup operations" denied

On September 11, 2001, petitioner [Claimant] was employed as a budget analyst for the New York City Office of Management and Budget [OMB]. In the weeks following the terrorist attacks, Claimant was assigned by OMB to work at offices in Queens and on Maiden Lane in Manhattan, before returning to his Park Place office in March 2002.

Claimant filed a "registration of his participation" in the World Trade Center [WTC] rescue, recovery and cleanup operations with the Workers' Compensation Board [Board] seeking workers' compensation benefits. The Board, among other things, ruled, that Claimant was not a participant in the WTC rescue, recovery and cleanup operations and his application for workers' compensation benefits was rejected. Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's determination noting:

1. Claimant testified that at the time of the WTC attacks he was providing budgetary analysis for the OMB's Parks and Landmarks Unit.

2. Claimant did not testify that he directly participated in the rescue, recovery and cleanup operations at the WTC site.

3. Claimant said that after the attack he was assigned to do "budgetary analysis for the rescue, recovery and cleanup" operations, although his general job duties remained the same."

4. Claimant did not provide any further testimony or other evidence as to what this analysis actually entailed or how the work was connected to the rescue, recovery and cleanup operations.

The Appellate Division opined the Board's factual finding that Claimant did not demonstrate that his job duties as a budget analyst had a direct or tangible connection to the rescue, recovery or cleanup operations at the WTC site is supported by substantial evidence and concluded that the Board did not abused its discretion in finding that Workers' Compensation Law Article 8-A "does not apply to this claim."

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

 

Applicant for accidental disability retirement benefits must show the event resulting in the injury was not a risk inherent in the work being performed

A police officer [Officer] suffered a number of injuries when he fell while descending a staircase in his precinct. Officer's application for accidental disability retirement benefits was denied upon the ground that the incident did not constitute an accident within the meaning of §363 of the Retirement and Social Security Law.* Following a hearing and redetermination, the State Comptroller ultimately affirmed the hearing officer's decision. Officer commenced a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller's decision noting:

1. Officer bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's decision "will be upheld if supported by substantial evidence"'

2.  "An injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed".

3. A fall as a result of one's own misstep, without more, "is not so out-of-the-ordinary or unexpected as to constitute an accidental injury".

Although there was no dispute that Officer was engaged in the performance of his ordinary duties as a patrol officer at the time that he fell, he did not identify any defect in the stairs, which he used on a regular basis nor was he able to identify the substance or occurrence that "precipitated his fall." Officer's application for disability benefits under General Municipal Law §207-c "indicated that he simply 'lost [his] foot[ing]' on the stairs, while Officer's application for accidental disability retirement benefits indicated that he fell after he "stepped on a[n] unseen substance."

The Appellate Division said "Credibility determinations, as well as the resolution of any inconsistencies between the hearing testimony and documentary evidence, are matters for the Hearing Officer and [the Comptroller] to resolve". Given the inconsistencies in Officer's description of his fall, as well as his inability to identify a precipitating accidental event that was not a risk inherent in the work that he performed, the Appellate Division opined "the Hearing Officer rationally concluded that petitioner failed to prove that his fall was the result of anything other than a misstep."

Confirming the Comptroller's decision, the Appellate Division observed "... a fall occasioned by a misstep does not constitute an accident" and substantial evidence supports the Comptroller's denial of Officer's application for accidental disability retirement benefits.

* Officer did, however, receive performance of duty disability retirement benefits when he subsequently retired

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

Challenging an arbitration award based on allegations that award failed to meet the standards of finality and definiteness

Arguing that an arbitration should be vacated because it failed to meet the standards of finality and definiteness required by CPLR Article 75, the Niagara Falls Captains and Lieutenants Association, [Association] appealed Supreme Court's order denying its petition seeking to vacate an arbitration award. The Appellate Division rejected the Association's contention and affirmed the order.

Noting that it is well settled that "judicial review of arbitration awards is extremely limited", the Appellate Division, citing Barone v Haskins, 193 AD3d 1388, observed that "a court may vacate an arbitrator's award where it finds that the rights of a party were prejudiced when 'an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made'".

The court, considering the Association's argument that the arbitrator's award failed to meet the standards of finality and definiteness, opined "An award is indefinite or nonfinal within the meaning of the statute 'only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'", citing Yoonessi v Givens, 78 AD3d 1622 and other decisions.

The Appellate Division said that contrary to the Association's contention, it concluded that the award sufficiently defined the parties' rights and obligations with respect to the controversy at issue* as the arbitrator's "award did not leave any matter submitted by the parties open for future contention, and thus, it was definite and final." 

In the words of the court, "The matter submitted by the parties concerned six specific alleged violations of the [collective bargaining agreement] CBA or past practice, and the award finally and definitely resolved that matter, determining that respondent did not violate either the CBA or past practice when it filled the vacancies as soon as was reasonably possible."

The Association had argued that the determination that past practice required positions to be filled as soon as reasonably possible will create new [sic] controversies between the parties in the future inasmuch "as there is no definition of what is reasonable." Rejecting this argument, the court said the award completely "dispose[d] of the controversy submitted", which was limited to three specific grievances involving six specific actions taken by the City of Niagara Falls. 

The award, said the Appellate Division, "fully resolved that controversy, denying the grievances and determining that the vacancies were filled in accordance with the past practice of filling vacancies as soon as reasonably possible." As there was nothing "open for future contention" with respect to those three grievances, the court concluded that the award "did not create any new controversy with respect to those specific grievances."

* The Association had contended that the City of Niagara Falls "violated the parties' collective bargaining agreement or past practice when it failed to immediately fill six specific vacancies."

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

 

New York State Public Employment Relations Board's dismissal of the Petitioner's unfair labor practice charge against her union sustained

PERB concluded that the United Federation of Teachers [UFT] did not breach its duty of fair representation when it declined to demand Petitioner's grievance be submitted to arbitration. UFT had decided not to arbitrate Petitioner's grievance based on undisputed evidence that Petitioner was not between work assignments when she was struck by a car but instead had completed her last assignment of the day and was on her way home and that Petitioner was using her cell phone when crossing the street.

The Petitioner's employer's criteria for "line-of-duty-injury" [LODI] status required that the employee be "injured while performing duties connected with [her] assignment" and that the injury "could not have been foreseen or avoided with ordinary care by the injured employee." The Appellate Division opined that "UFT's decision was not so outside the 'wide range of reasonableness' afforded to unions in their representation of members as to be arbitrary," citing Matter of Civil Serv. Bar Assn., Local 237 Intl. v City of New York, 99 AD2d 264, affirmed 64 NY2d 188.*

Finding that PERB's decision regarding Petitioner's fair representation claim had "a rational basis," the Appellate Division said it "must affirm" PERB's determination.

In addition, citing Rochester Teachers Assn., 45 PERB ¶3033, the court sustained PERB's Administrative Law Judge's decision not to order UFT to produce its arbitration statistics as it was consistent with PERB's rules limiting the availability of discovery in improper practice charge disputes.

* In Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn, 268 AD2d 523, the Appellate Division, citing Matter of Blackburne, 87 N.Y.2d 660, observed that a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration,.

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

 

Former clerk/treasurer of village pleads guilty to stealing over $70k from village

On March 31, 2023, State Comptroller Thomas P. DiNapoli, St. Lawrence County District Attorney Gary Pasqua and the New York State Police announced that Nancy Berger, formerly the Clerk/Treasurer of the Village of Norwood, pleaded guilty to grand larceny in the second degree for stealing $73,725 from the Village.

“Nancy Berger treated the village as her personal bank account and abused the public’s trust,” DiNapoli said. “I thank District Attorney Pasqua and the New York State Police for their partnership. Justice is now served on behalf of Norwood residents.”

Berger stole the funds between 2018 and 2022 by writing Village checks to herself. Her theft, also known as jobbery,* was initially uncovered by the Village and she resigned from her position shortly after in June 2022. Berger was appointed Clerk/Treasurer in January 2017.

She pleaded guilty before Judge Gregory P. Storie in St. Lawrence County Court. She is due back in court for sentencing on May 31. 2023 and full restitution in the amount of $73,725 is anticipated. 

* Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

Eligibility for health insurance benefits provided by the New York State Employees' Health Insurance Program [NYSHIP] upon retirement where there is a lapse in NYSHIP coverage prior to retirement

In 1976 the City of Mount Vernon adopted the following resolution:

"RESOLVED, that the City of Mount Vernon hereby elects to contribute one hundred per cent (100%) of the cost of individual and dependent health insurance coverage as the city's rate of contribution in the New York State Government Employees' Health Insurance Program [NYSHIP] for those employees not members of a negotiating unit who shall retire on and after January 1, 1977."

In 1979, the then-Mayor of the City of Mount Vernon allegedly told the Plaintiff in this action that if she voluntarily left her position at that time she would be eligible to receive full retirement medical benefits when she reached the age of 55, even though she would not continue working for the City.* Plaintiff agreed to the Mayor's proposal and resigned from her position with the City in December 1980. Thereafter Plaintiff did not receive health insurance benefits pursuant to NYSHIP.

Plaintiff was unsuccessful in her subsequently efforts to obtain NYSHIP health insurance coverage upon her retirement at age of 55 as represented by the City's former mayor. Ultimately Supreme Court's dismissed Plaintiff's lawsuits seeking to recover damages from the City for "breach of contract, fraudulent inducement, and fraudulent misrepresentation". Plaintiff appealed the Supreme Court's decision.

The Appellate Division affirmed Supreme Court's ruling, holding that "To the extent that the [Plaintiff] otherwise submitted evidence tending to substantiate her allegation that City officials made verbal and written representations that she would be eligible for retirement health benefits despite her undisputed lapse in coverage, such evidence was insufficient to raise a triable issue of fact, since at best it showed that the City's officials made promises that the City lacked the authority to fulfill."

* See 4 NYCRR 73.2, in general, and 4 NYCRR 73.29(a)(3), in particular, with respect to "Eligibility" for participation in NYSHIP and 4 NYCRR 73.2(e), "Disqualification", with respect to such participation.

The Appellate Division's decision is set out below.

 

Johnson v City of Mount Vernon

2023 NY Slip Op 01502

Decided on March 22, 2023

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 March 22, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
LILLIAN WAN, JJ.

2019-13093
(Index No. 51304/15)

Amelia Politi Johnson, appellant,

v

City of Mount Vernon, respondent.

Nancy A. Luongo, Harrison, NY, for appellant.

Coughlin & Gerhart, LLP, Binghamton, NY (Paul J. Sweeney, Steven L. Foss, and Devin M. Dilts of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an amended order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated October 11, 2019. The amended order, insofar as appealed from, granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for breach of contract, fraudulent inducement, and fraudulent misrepresentation.

ORDERED that the amended order is affirmed insofar as appealed from, with costs.

In June 1969, the plaintiff began working as a nonunion employee for the defendant, City of Mount Vernon. After approximately 10 years, the then-Mayor of the City allegedly told the plaintiff that if she voluntarily left her position at that time she would be eligible to receive full retirement medical benefits when she reached the age of 55, even though she would not continue working for the City. City officials allegedly represented to the plaintiff that she would be eligible for such benefits pursuant to a resolution the City had adopted on November 24, 1976 (hereinafter the 1976 resolution). The 1976 resolution provided: "RESOLVED, that the City of Mount Vernon hereby elects to contribute one hundred per cent (100%) of the cost of individual and dependent health insurance coverage as the city's rate of contribution in the New York State Government Employees' Health Insurance Program for those employees not members of a negotiating unit who shall retire on and after January 1, 1977." The plaintiff agreed to the Mayor's proposal and resigned from her position with the City in December 1980. The plaintiff did not receive medical benefits under the New York State Health Insurance Program (hereinafter NYSHIP) directly or as a dependent at any time after ending her employment with the City.

Upon reaching the age of 55, the plaintiff filed an application for retirement benefits on or about August 15, 2005. However, by letter dated December 11, 2014, the City informed the plaintiff that it had determined that she was not eligible to enroll in NYSHIP as a retiree.

The plaintiff commenced this action against the City and amended the complaint to assert causes of action, among other things, to recover damages for breach of contract, fraudulent inducement, and fraudulent misrepresentation, alleging in essence that the City breached its promise to provide her with postretirement health insurance coverage. The City moved, inter alia, for summary judgment dismissing the breach of contract, fraudulent inducement, and fraudulent misrepresentation causes of action. In an amended order dated October 11, 2019, the Supreme Court, among other things, granted those branches of the motion. The plaintiff appeals.

The Supreme Court properly granted those branches of the City's motion which were for summary judgment dismissing the breach of contract causes of action. The breach of contract causes of action are premised upon the plaintiff's assertion that the 1976 resolution entitled her to retirement health benefits, based on the text of the 1976 resolution and the representations of City officials as to the effect of the 1976 resolution. Resolving the issue of whether the plaintiff is entitled to retirement health benefits "requires examination of the relevant . . . plan documents" (Matter of Parrino v Albertson Water Dist., 118 AD3d 802, 802; see Matter of Consolidated Mut. Ins. Co., 77 NY2d 144, 147). The plain language of those documents, as well as the applicable statutes and regulations, provide for postemployment health insurance benefits only for vested employees who, upon termination of their employment with a participating agency, continue coverage under NYSHIP as an enrollee or a dependent of an enrollee while in vested status with no lapse in NYSHIP coverage (see Retirement and Social Security Law § 2[18]; Civil Service Law § 163[3]; 4 NYCRR 73.1[e]; 73.2[a][3][iv]). The City established, prima facie, that the plaintiff experienced a lapse in coverage and was therefore not eligible for retirement health benefits.

In opposition, the plaintiff failed to raise a triable issue of fact. The plain language of the 1976 resolution does not affect the plaintiff's eligibility for retirement health benefits in the event of a lapse in coverage. To the extent that the plaintiff otherwise submitted evidence tending to substantiate her allegation that City officials made verbal and written representations that she would be eligible for retirement health benefits despite her undisputed lapse in coverage, such evidence was insufficient to raise a triable issue of fact, since at best it showed that the City's officials made promises that the City lacked the authority to fulfill (see Matter of Parrino v Albertson Water Dist., 118 AD3d at 803; Mans Constr. Oversite, Ltd. v City of Peekskill, 114 AD3d 911, 911; International Merchants v Village of Old Field, 203 AD2d 247, 248). Moreover, contrary to the plaintiff's further contention, the doctrine of estoppel is inapplicable (see Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282; International Merchants v Village of Old Field, 203 AD2d at 248).

The Supreme Court also properly granted that branch of the City's motion which was for summary judgment dismissing the causes of action alleging fraudulent misrepresentation and fraudulent inducement. The City established, prima facie, that the alleged untrue representations underlying those causes of action are the same as those underlying the breach of contract causes of action (see Stangel v Zhi Dan Chen, 74 AD3d 1050, 1052). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are either not properly before this Court or without merit.

BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

An autopsy of an arbitration award

As a rule, where the parties agreed to resolve disputes by submitting the issue to arbitration, courts typically have a "limited role" resolving the dispute. In the instant appeal, however, the Appellate Division observed that "Even with a limited role '[a] court may vacate an [arbitration] award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

Two members of a County Sheriff's Department separately applied for personal leave, but their requests were denied due to operational needs. The Union filed a joint grievance on their behalf, and the matter proceeded to arbitration. The arbitrator found that the County had violated the applicable terms of the relevant collective bargaining agreement [CBA] and the County commenced a combined CPLR Article 75 proceeding and declaratory action seeking to vacate the arbitrator's award. Supreme Court vacated the arbitration award and the Union appealed.

Here the relevant collective bargaining agreement [CBA] provided that although an arbitrator's award was final, any party could seek judicial redress if "the arbitrator has varied the terms or illegally interpreted the terms of the bargaining agreement between the parties." §5.08 of the relevant CBA provided that "[t]he granting of a personal business day shall be at the discretion of the Sheriff ..., with the work of the [d]epartment taking priority."

In ruling against the County, the arbitrator found that the County's discretion was "not unlimited and must be exercised in a reasonable fashion" and concluded that §5.08 should be interpreted as "presum[ing] that a timely request for a personal leave day will be granted absent a showing that pressing and current [d]epartment needs exist that may take precedence over any such leave request" (emphasis in the decision). Further, the arbitrator found that "it is the County's burden to demonstrate that such a need exists and but for the denial of a personal leave day request, the [d]epartmental needs could not be met."

The Appellate Division opined that by construing §5.08 as presuming that leave "will be granted" unless a departmental need was shown, the arbitrator did not rationally interpret the CBA's provisions. While the arbitrator noted that the County did not have unfettered discretion to determine when a personal leave request should be granted, the Arbitrator's ruling did not define the limits of that discretion. The arbitrator, instead, eliminated any discretion on the part of the County and replaced it with a burden-shifting standard.

Inasmuch as that burden-shifting standard is not a rational construction of §5.08, the Appellate Division, citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979 and other decisions, concluded that the County's petition/complaint seeking vacatur of the arbitrator's award was correctly granted by Supreme Court.

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

 

Retired employees sue Town seeking reimbursement of certain health insurance premiums they paid following retirement

It is well settled that, "when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied 485 US 1034 [1988]; see Clark v County of Cayuga, 212 AD2d 963, 963 [4th Dept 1995]). There are two exceptions to that rule.

"The first exception applies when the contract provides otherwise . . . , i.e., the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within the ambit of the contractual dispute resolution procedures" (Buff v Village of Manlius, 115 AD3d 1156; see Ledain v Town of Ontario, 192 Misc 2d 247, 251 [Sup Ct, Wayne County 2002], affd 305 AD2d 1094 [4th Dept 2003]).

"The second exception applies when the union fails in its duty of fair representation . . . , but the employee must allege and prove that the union breached its duty to provide fair representation to the employee" (Buff, 115 AD3d at 1157 [internal quotation marks omitted]; see Ambach, 70 NY2d at 508).

In this action Plaintiffs, retired employees of the Town, did not allege or show that the union breached its duty of fair representation (see Clark, 212 AD2d at 963), and therefore only the first exception is at issue, namely "did the contract either expressly allows such suits or implicitly does so by excluding the dispute at issue from, or not covering it within, the ambit of the contractual dispute resolution procedures."

Although Supreme Court held that the grievance procedure set out in the collective bargaining agreement [CBA] was the exclusive procedure by which Plaintiffs, retired employees of the Town, could seek redress and that they were required to bring their claims through the grievance procedure despite their status as retirees, the Appellate Division disagreed and "unanimously reversed" Supreme Court's order "on the law" and reinstated the retired employees' complaint.

Inasmuch as Plaintiffs were not aggrieved until after they had retired, and inasmuch as the CBAs "expressly limit[] the availability of the grievance procedure to current employees," the Appellate Division concluded that "the clear and unambiguous terms of the [CBAs]" establish that the grievance process was not available to Plaintiffs at the time they became aggrieved, citing Matter of DeRosa v Dyster, 90 AD3d 1470, and other decisions.

Accordingly, Plaintiffs' may go forward with their efforts seeking a court order compelling the Town to reimburse certain health insurance premiums which Plaintiffs contend they are entitled to pursuant to the terms of a CBA between Town and the Union that represented Plaintiffs during their employment by the Town.

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

Preventing a court's judgment or order which is unreviewable for mootness from "spawning any legal consequences or precedent"

The Petitioner discontinued efforts to enforce the judgment of Supreme Court and obtain the documents it had requested pursuant to New York State's Freedom of Information Law [FOIL] from Respondents. This rendered Respondents' instant appeal challenging Supreme Court's judgment and the report of the Referee moot. Further, Respondents did not establish an exception to the mootness doctrine.

The Appellate Division, noting the Respondents had not establish an exception to the mootness doctrine* and that the general rule in New York State is simply to dismiss an appeal that has been rendered moot, opined that "vacatur of an order or judgment may be an appropriate exercise of [the discretion of the court] when necessary to prevent a judgment or order which is unreviewable for mootness from spawning any legal consequences or precedent."

Explaining that a Supreme Court's orders could be used as precedent in future cases, "causing confusion of the legal issues raised", the Appellate Division found that "the circumstances presented in this case warrant the exercise of [its] discretion" and vacated the orders and judgment of Supreme Court and sealed the Referee's report.

* The Merriam-Webster.com Legal Dictionary defines the mootness doctrine as "A doctrine in judicial procedure: a court will not hear or decide a moot case unless it includes an issue that is not considered moot because it involves the public interest or constitutional questions and is likely to be repeated and otherwise evade review or resolution."

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

 

Applicant for accidental disability retirement benefits has the burden of showing the claimed disability was causally connected to the alleged line of duty injury

Plaintiff challenged the Board of Trustees of the New York City Police Pension Fund [Trustees] denial of her application for accidental disability retirement benefits. The Appellate Division unanimously affirmed the Trustees' decision,  dismissing Plaintiff's CPLR Article 78 petition.

The court said that the Trustees' determination that "there was no causal connection" between Plaintiff' line of duty injury and her disability was supported by credible evidence. The Appellate Division then observed that the Pension Fund's Medical Board recommended that Plaintiff receive ordinary disability retirement benefits rather than accidental disability retirement benefits.

The Appellate Division's decision noted that Plaintiff "was on full duty" for most of the period after experiencing her line of duty injury; had qualified with a firearm until her service retirement; and her "subjective complaints did not match the objective medical findings."

Further, said the court, although Plaintiff's surgeon stated that her disability resulted from a work-related accident, the Trustees' Medical Board disagreed, and conflicts in the evidence are to be resolved solely by the Medical Board and the Trustees.

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

Public personnel law e-books available for purchase from BookLocker

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 publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York or a political subdivision of New York State 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 New York State laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Freedom of Information Law (FOIL)

 

Matter of Digital Forensics Unit v Records Access Officer

2023 NY Slip Op 01476

Decided on March 21, 2023

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: March 21, 2023
Before: Manzanet-Daniels, J.P., Singh, Kennedy, Shulman, JJ.

Index No. 100836/19 Appeal No. 17552 Case No. 2021-03350

In the Matter of Digital Forensics Unit, Legal Aid Society, Petitioner-Appellant,

v

Records Access Officer, New York City Police Department, Respondent-Respondent.

Twyla Carter, The Legal Aid Society, New York (Benjamin S. Burger of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered August 26, 2021, denying the petition to compel respondent to disclose "all current NYPD rosters of officers (of all ranks) in all precincts" pursuant to the Freedom of Information Law (FOIL), granting respondent's cross motion to dismiss the petition, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The court committed no procedural error in granting respondent's cross motion to dismiss the petition. Initially, petitioner's contention that the court improperly considered the affidavit of respondent's Deputy Commissioner for Intelligence and Counterterrorism (the Miller affidavit) is unpreserved (see Islam v City of New York, 111 AD3d 493, 494 [1st Dept 2013]). In any event, respondent was entitled to submit the affidavit on its cross motion, and the court properly considered it in evaluating the merits of petitioner's claim (see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134-135 [1st Dept 2014]; see also Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

The parties' submissions established that respondent's denial of petitioner's FOIL request based on the public safety exemption was not "affected by an error of law" (CPLR 7803[3]; see also Public Officers Law § 87[2][f]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent satisfied its burden of showing that the requested information fell "squarely" within the exemption (see Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158 [1st Dept 2010]), by making a "particularized showing" that publicly releasing the information would create "a possibility of endangerment" to the safety of the public (Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435 [1st Dept 2020] [internal quotation marks omitted], lv denied 36 NY3d 906 [2021]; see also Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011], affd 20 NY3d 1028 [2013]). As articulated in respondent's determination denying petitioner's FOIL request, the disclosure of the rosters of all the NYPD precincts could permit individuals intent on causing harm to deduce which precincts have less resources and manpower, and tailor their conduct by targeting those areas. Further, the Miller affidavit described the potential harm to police officers as well as their families from the publication of their full names. Whether petitioner intends to publish the information on a publicly available website is irrelevant to the applicability of the exemption since "access to government records does not depend on the purpose for which the records are sought" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]; see also Matter of Bellamy v New York City Police Dept., 59 AD3d 353, 355 [1st Dept 2009]). Further, although respondent has since separately published the full names and precinct locations of NYPD officers, the court properly considered the record that was before the records access officer in 2019.

The advisory opinion of the Committee on Open Government concluding that the denial of the FOIL request was "unsupportable" is not binding, especially given that it did not address respondent's expressed concern regarding the risk to public safety arising from the exposure of the availability of police resources and manpower in the different precincts (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 493 [1994]; Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [1st Dept 2013]).

Respondent's disclosure of disciplinary information on its website in response to the repeal of Civil Rights Law § 50-a (see Uniformed Fire Officers Assn. v De Blasio, 846 Fed Appx 25, 29 [2d Cir 2021]) has no bearing on the propriety of the denial of petitioner's FOIL request, since respondent's creation of the online database occurred after the determination.

We have considered petitioner's remaining arguments and find them unavailing.

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

ENTERED: March 21, 2023