Supreme Court correctly dismissed Plaintiff's complaint alleging age discrimination

The Appellate Division ruled that Supreme Court correctly dismissed the Plaintiff's complaint alleging the New York State Insurance Fund [NYSIF] discriminated against him because of his age within meaning of the New York State Human Rights Law (Executive Law §296[1][a]). 

The Appellate Division opined the defendant NYSIF "proffered legitimate, nondiscriminatory reasons for its refusal to hire the Plaintiff for its claims services representative or underwriter trainee positions" and Plaintiff failed to raise a triable issue of fact as to whether the reasons advanced by NYSIF in its defense were pretextual.

 

Ruderman v New York State Ins. Fund

2023 NY Slip Op 01974

Decided on April 18, 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: April 18, 2023
Before: Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.

Index No. 650940/11 Appeal No. 51 Case No. 2022-03934

Irving Ruderman, Plaintiff-Appellant,

v

New York State Insurance Fund, Defendant-Respondents, John/Jane Does I-XX, Defendants.

Pardalis & Nohavicka, LLP, New York (Israel Klein of counsel), for appellant.

Letitia James, Attorney General, New York (Kristin Cooper Holladay of counsel), for respondent.

Order, Supreme Court, New York County (Richard Latin, J.), entered March 17, 2022, which granted defendant New York State Insurance Fund's (NYSIF) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.^[FN1]

The court correctly dismissed the complaint alleging age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]). NYSIF proffered legitimate, nondiscriminatory reasons for its refusal to hire plaintiff for its claims services representative or underwriter trainee positions, and plaintiff failed to raise a triable issue of fact as to whether the reasons were pretextual (see Sedhom v SUNY Downstate Med. Ctr., 201 AD3d 536 [1st Dept 2022]). It is undisputed that plaintiff was late for his interview, that his application was incomplete, and that his resume lacked details as to his past employment. Further, NYSIF was unable to verify plaintiff's employment with the employers that plaintiff provided. Plaintiff failed to show that any of the nondiscriminatory reasons proffered by NYSIF were "false or unworthy of belief" and that age discrimination was the real reason for its refusal to hire him (DeFreitas v Bronx Lebonon Hosp. Ctr., 168 AD3d 541, 541 [1st Dept 2019]; see also Kwong v City of New York, 204 AD3d 442, 444 [1st Dept 2022], lv dismissed 38 NY3d 1174 [2022]).

Although plaintiff's score on the New York State Professional Careers Test was higher than those of the selected candidates, state employers are not required to select the highest scoring individual, and factors outside of performance on the test may be taken into consideration in making civil service appointments (see Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d 526, 529 [1975]). Plaintiff's contention that his undergraduate degree and years of experience automatically make him more qualified than the selected candidates is unavailing, particularly in light of NYSIF's showing that other candidates were better suited for the roles based on the many factors considered.

Finally, most of NYSIF's interviewers were in plaintiff's protected class, and NYSIF ultimately selected candidates from a broad age range, including at least one candidate who was the same age as plaintiff (see Miller v News Am., 162 AD3d 422, 422 [1st Dept 2018]). These factors weigh against any inference of discrimination (see id.; see also Sedhom, 201 AD3d at 537), and undermine plaintiff's claim that the interviewers expressly told him that he would not be hired due to his age.

Plaintiff's challenges to the dismissal of his claims under the New York City Human Rights Law (Administrative Code of City of NY §8-107[1][a]) are not properly before this Court, as he had withdrawn those claims pursuant to a stipulation and filed an amended complaint asserting only causes of action under the New York State Human Rights Law (see Weinstein v City of New York, 103 AD3d 517, 517 [1st Dept 2013]). In any event, as an "instrumentality of the State," NYSIF is not subject to the provisions of the New York City Human Rights Law (Jattan v Queens Coll. Of City Univ. of N.Y., 64 AD3d 540, 542 [2d Dept 2009]; see also Ajoku v New York State Off. of Temporary & Disability Assistance, 198 AD3d 437, 437-438 [1st Dept 2021], lv denied 38 NY3d 908 [2022]).

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

ENTERED: April 18, 2023

Footnotes

Footnote 1: Defendants John/Jane Does I-XX have not appeared in this action or sought representation from the Attorney General. In any event, the complaint is devoid of facts attributing any discrimination to any anonymous or unnamed person. Thus, the complaint is dismissed as to John/Jane Does I-XX as well as NYSIF.

 

New York State Comptroller DiNapoli releases school and municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on April 20, 2023.

Links to material posted on the Internet highlighted in COLOR.

 

Chappaqua Central School District – Fixed Assets (Westchester County) District officials did not properly monitor and account for the district’s fixed assets. Officials maintained incomplete and inaccurate records and did not perform a physical inventory count since 2018. Of the 164 assets reviewed, 148, worth $220,708, were not recorded on the district’s original asset list and 18 assets worth $25,022 did not have asset tags, as required. Twenty-five disposed assets were not removed from the district’s original asset list. Also, officials could not determine whether four assets were disposed of (sold) or retired (obsolete). The district’s fixed asset policy did not require, and officials did not perform, a periodic inventory count or an unannounced asset count for district departments.

 

Williamsville Central School District – Financial Management (Erie County) The board and district officials did not properly manage the district’s fund balance and reserves. As a result, the district levied more taxes than needed to fund operations. The board and district officials consistently overestimated general fund appropriations from 2018-19 through 2021-22 by a total of $47 million and appropriated $22 million of fund balance that was not needed or used. Officials also adopted annual budgets during the same period that gave the impression that the district would have operating deficits totaling $38 million when it actually had operating surpluses totaling $40 million, for a difference totaling $78 million.

 

Stamford Central School District – Fund Balance Management (Delaware County) The board and district officials did not effectively manage the district’s fund balance. As a result, they were not transparent with taxpayers, and the district levied more taxes than needed to fund operations.  The board overestimated appropriations from the 2019-20 through 2021-22 fiscal years by an average of $1.4 million (14%) and planned to use fund balance to cover operating deficits when the district realized operating surpluses. Surplus fund balance exceeded the 4% statutory limit in two of the last three fiscal years by approximately $700,000 (6.8 percentage points) and $1.9 million (18.7 percentage points). Four of the district’s 11 reserves were not reasonably funded, or used to pay related expenditures, during the last three fiscal years. For example, the retirement contributions for employees reserve balance of $602,749 was sufficient to cover expenditures for five years.

 

Bayport-Bluepoint Union Free School District – Nonstudent Network User Accounts (Suffolk County) District officials did not establish adequate network controls for nonstudent user accounts to help prevent unauthorized access. As a result, the district has an increased risk of unauthorized access to and use of the district network and potential loss of important data. In addition to sensitive information technology (IT) control weaknesses that were confidentially communicated to officials, auditors found the database coordinator did not disable 281 nonstudent network user accounts that are unneeded or unnecessary to prevent unauthorized access and use.

 

Village of Suffern – Budget Review (Rockland County) Based on the results of our review, auditors found that the significant revenue and expenditure projections in the 2023-24 proposed budget were reasonable. Estimates for metered water revenues and sewer rent revenues appear overestimated and should be reviewed by the board. The village’s tentative budget includes a tax levy of $12,090,011, which is within the limit established by law.

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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.  

 

Qualified immunity claimed by governmental officials in class action brought in federal court

Qualified immunity shields government officials from liability for money damages for violation of a right under federal law if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

This ruling by the U.S. Circuit Court of Appeals, Second Circuit, addresses claims by government officials of their "entitlement to qualified immunity" in the underlying litigation. 

Following a discussion the Doctrine of Qualified Immunity and then reviewing the plaintiff's claims of violations of his rights under the Eighth and Fourteenth Amendments of the Constitution of the United State, the Circuit Court of Appeals:

1. Affirmed the district court's denial of the government officials' motion for judgment on the plaintiff's pleadings concerning his Fourteenth Amendment claim;

2. Reversed the district court's denial of the government officials' motion for judgment on the plaintiff's pleadings concerning his Eighth Amendment claim; and 

3. Remanded the matter to the district court "for further proceedings."

Click HERE to access the text of Circuit Court's decision posted on the Internet.

 

New Jersey may unilaterally withdraw from the New York-New Jersey Waterfront Commission Compact

The Waterfront Commission Compact established a bi-state agency known as the Waterfront Commission of New York Harbor New York and New Jersey in 1953, consistent with the Compact Clause of the Constitution, pursuant to which the States delegated their sovereign authority to conduct regulatory and law-enforcement activities at the Port. 

The Compact did not address each State’s power to withdraw from the Compact. 

In 2018, New Jersey sought to unilaterally withdraw from the Compact, over New York’s opposition. New York filed a bill of complaint in the Supreme Court of the United States. 

The parties then filed cross-motions for judgment on the pleadings, with the United States supporting New Jersey as amicus curiae.

Held: The Supreme Court ruled New Jersey may unilaterally withdraw from the Waterfront Commission Compact notwithstanding New York’s opposition.

Click HERE to access the Supreme Court's decision and the Syllabus of the ruling. 

N.B. The Syllabus is not part of the opinion of the Court. It is prepared by the Reporter of Decisions for the convenience of the reader.

 

Start Your Career in Public Service in New York State as a Correction Officer

The New York State Department of Civil Service announced the State and 40 county civil service agencies are currently offering online civil service examinations for appointment to positions of Correction Officer.

Applicants May Apply to Take the Local Examinations for Appointment to Local Correction Officer Positions Through May 12, 2023; The Online Examination Must be Completed by June 30, 2023.

New York State Currently Offers the Online Examination for Appointment to State Correction Officer Positions with Applications Being Accepted Until Further Notice.

For more information and to access the online examination, please click here.

 

Excessive lateness deemed a violation of the employer's time and leave policies

New York City Office of Administrative Trials and Hearings Administrative Law Judge Julia H. Lee recommended a 5-day suspension for a procurement specialist charged with excessive lateness.

The employee was found guilty of being late to work on 40 separate occasions over a period of eight months, totaling 32 hours and 40 minutes.

ALJ Lee rejected the employee’s argument that he was not late on these occasions because he received supervisory approval to charge his lateness to compensatory time. Judge Lee opined that that a long-time employee is expected to abide by the agency’s time and leave policies.

The ALJ, however, found that the employee's misconduct was mitigated by the employee’s 40-year employment with no prior disciplinary history since 1989, recommended a 5-day suspension without pay instead of the 10-day suspension without pay proposed by the employer.

The text of the ALJ's decision is posted on the Internet at: https://archive.citylaw.org/wp-content/uploads/sites/17/oath/22_cases/22-217.pdf

 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this ebook 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. 

 

State Comptroller DiNapoli Releases School & Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on April 12, 2023.

Links to material posted on the Internet highlighted in COLOR.

Village of Stamford – Claims Audit (Delaware County)

The board did not effectively audit claims prior to payment. As a result, disbursements were made for unsupported and improper claims. During the audit period, the board approved 890 claims totaling $8.2 million. Of the 200 claims totaling $1 million that were examined, 78 claims totaling $195,545 did not have support that the purchases complied with competitive bidding requirements or the village’s procurement policy, five claims totaling $1,334 included food and alcohol purchases and one claim totaling $700 did not have an itemized receipt and did not follow procurement guidelines. In addition, six claims totaling $637 did not have appropriate support, such as an itemized receipt or invoice. Lastly, credit card claims totaling $62,404 were improperly paid before board audit.

 

Village of Stamford – Pool Capital Project Planning and Monitoring (Delaware County)

The board did not transparently plan or sufficiently monitor the project. As a result, total costs exceeded grant revenues by $256,302 and contributed to the declining fund balance in the village’s general fund. The board did not prepare a project budget or ensure that a separate capital projects fund was set up to record project revenues and expenditures. The board also did not ensure the project was monitored and change orders were reviewed and approved, nor did it competitively procure project contracts and expenditures.

 

Village of Waverly – Parks and Recreation Department Financial Activities (Tioga County)

Village officials did not establish adequate controls over the department’s financial activities, resulting in $16,525 in unaccounted for collections. Cash receipt processes and oversight were inadequate and key duties were not segregated. In addition, collection, receipting and recordkeeping procedures were inadequate. The department hosted 15 tournaments and held nine fundraisers. However, no money was deposited for 11 of the tournaments and two of the fundraisers. Registration forms for 26 of 36 sports leagues were not maintained. The former director awarded scholarships (i.e., waived registration fees) without any guidelines, board oversight or approval, and also inappropriately used village bank accounts for non-village activities. As a result of the audit and investigation, the former director was arrested and pleaded guilty in December 2022 to official misconduct. As part of his plea, he resigned from his position and was sentenced to a one-year conditional discharge and paid the full restitution of $16,525.

 

Wyandanch Union Free School District – Budget Review (Suffolk County)

Based on the results of the review, auditors found that the revenue and expenditure projections in the 2023-24 proposed budget are reasonable. However, auditors also found that the district’s proposed budget includes approximately $11.3 million in health insurance appropriations; this appropriation is $3.4 million, or 43%, more than the $7.9 million projected expenditure for 2022-23 and $3.9 million, or 54%, more than the $7.4 million average health insurance expenditure incurred during the last five years. The district’s proposed budget complies with the tax levy limit.

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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.

Curing certain procedural omissions by the plaintiff and the plaintiff's alleged failure to state the merits of certain of her claims

Plaintiff [Petitioner] appealed the judgment of the United States District Court dismissing all her claims against the Defendants [School District]. Petitioner had filed claims alleging unlawful discrimination within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment, as made actionable by 42 U.S.C. §1983.

As to certain procedural issues, the Circuit Court of Appeals, Second Circuit, said it had concluded that although the School District has been properly served with the summons and complaint, Petitioner had failed to demonstrate proper service of her complaint upon two named School District employees. The court also agreed with the district court that Petitioner had failed to exhaust that portion of her Title VII claim related to alleged adverse employment actions in May 2019.

Addressing the merits of Petitioner's action, the Circuit Court ruled that the district court had erred in holding that the Petitioner's First Amended Complaint failed to state a plausible claim under Title VII or the Equal Protection Clause.

Accordingly, the Circuit Court affirmed the district court’s dismissal of Petitioner's Title VII complaint "to the extent the claim is based on alleged adverse employment actions in May 2019" but then vacated the district court’s judgment to the extent it dismissed Petitioner's Section 1983 claim and the remainder of Petitioner's Title VII claim.

The Circuit Court then remanded the matter to the district court for:

1. Further proceedings consistent with its opinion; and

2. A determination by the district court as to whether Petitioner should be provided with
"an extension of time to effectuate proper service of process" on the two employees of the School District referred to above.

Click HERE to access the decision of the Circuit Court of Appeals.

Rejection of demands for additional compensation for work performed pursuant a contract

Rejection of demands for additional compensation for work performed pursuant a contract to remediate and digitize documents damaged by flooding by New York City's Contract Dispute Resolution Board and NYC Office of Administrative Trials and Hearings (OATH) unanimously affirmed by the Appellate Division.

 

Matter of Total Envtl. Restoration Solutions, Inc. (TERS) v Contract Dispute Resolution Bd.

2023 NY Slip Op 01878

Decided on April 11, 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: April 11, 2023
Before: Kern, J.P., Friedman, Gesmer, Higgitt, JJ.

Index No. 154920/21 Appeal No. 17 Case No. 2021-04286

[*1]In the Matter of Total Environmental Restoration Solutions, Inc. (TERS), Petitioner-Appellant,

v

Contract Dispute Resolution Board, et al., Respondents-Respondents.

Kostelanetz & Fink, LLP, New York (Claude Millman of counsel), for appellant.

Frank Ng, New York, for Contract Dispute Resolution Board and NYC Office of Administrative Trials and Hearings (OATH), respondent.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Philip W. Young of counsel), for The City of New York, The Office of the Comptroller and the New York City Police Department (NYPD), respondents.

Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 13, 2021, denying the petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated February 4, 2021, which denied petitioner's claims for additional compensation from respondent New York Police Department (NYPD) for work performed pursuant a contract to remediate and digitize documents damaged by flooding caused by Hurricane Sandy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

CDRB's determination was not arbitrary or capricious or affected by an error of law (see CPLR 7803[3]; 9 RCNY 4-09[g][6]). In calculating the remediation costs, CDRB rationally concluded that the language of the contract did not support petitioner's contention that the word "page" unambiguously referred to one side of a sheet of paper. Unlike the section governing digitization services, which clarified that "[d]ouble-sided documents count as two pages," there was no equivalent provision in the section governing remediation. The omission of similar language with respect to remediation services "must be deemed an intentional choice of the parties" (Ambac Assur. Corp. v EMC Mtge. LLC, 121 AD3d 514, 518 [1st Dept 2014]). Indeed, remediation treats the whole sheet of paper regardless of whether it is printed on one or both sides, whereas digitization depends on the number of images scanned.

The contract's merger clause precludes petitioner's reliance on communications between the parties and other extrinsic sources to support its proposed definition (see Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013]). Further, extrinsic evidence may not be considered where, as here, the contract is unambiguous (Matter of Wells Fargo Bank, N.A., 198 AD3d 156, 163 [1st Dept 2021], lv dismissed 38 NY3d 998 [2022]). In any event, even if there were an ambiguity, it is to be construed against petitioner, the drafter of the agreement (see 327 Realty, LLC v Nextel of N.Y., Inc., 150 AD3d 581, 582 [1st Dept 2017])

In determining the digitization costs, CDRB rationally relied on NYPD's calculation of the number of images that had been digitized, which was based on the number of files that NYPD received on hard drives from petitioner. This method was consistent with the contractual term that petitioner was to be compensated "for the actual number of . . . images digitized." By contrast, petitioner's calculation method using image file size did not comport with the terms of the agreement.

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

ENTERED: April 11, 2023

 

Requirements to establish a prima facie case of the employer's failure to provide a reasonable accommodatition of an employee's disability

To establish a prima facie case of an employer's failure to accommodate an employee's disability within the meaning of the Americans with Disabilities Act, 42 U.S.C. §§12101–12213 [ADA], the plaintiff must allege the following:

(1) The plaintiff is a person with a disability within the meaning of the ADA;

(2) An employer covered by the statute had notice of plaintiff's disability;

(3) With reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and

(4) The employer has refused to make such accommodation or accommodations.

In this action the parties disputed whether New York City Department Of Human Resources Administration [HRA] had refused to provide the employee [Plaintiff] with a reasonable accommodation of her alleged disability within the meaning of 42 U.S.C. §§12101–12213.

The U.S. Circuit Court of Appeals, Second Circuit, noted that, for the purposes of the ADA, a reasonable accommodation “is one that enables an individual with a disability ... to perform the essential functions of that position or to enjoy equal benefits and privileges of employment.” However, observed the court, the ADA does not require employers to “provide a perfect accommodation or the very accommodation most strongly preferred by the employee.”

Plaintiff acknowledged that, in response to her request, HRA provided her with an ergonomic chair and footrest, but alleged that the ergonomic chair was “dilapidated” and the footrest "rocked." The Circuit Court, however, noted Plaintiff failed to identify any “benefits or privileges of employment” that she was not able to enjoy because of the chair and footrest that HRA provided to accommodate the employee's alleged disability.

The Circuit Court also commented that it agreed with the federal District Court that Plaintiff’s allegations in support of her claim that the accommodations HRA provided were inadequate were "too conclusory and thus fail to establish a prima facie case for failure to accommodate a disability."

Plaintiff also contended that the District Court erred in dismissing her discrimination complaints pursuant to the ADA and Title VII. Addressing this claim, the Circuit Court opined that Plaintiff failed "to develop her legal theory in support of this argument," pointing out  that "[it] is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."

In addition, the Circuit Court noted that Plaintiff did not allege facts sufficient to raise an inference that HRA's actions were taken because of her race or disability, citing Vega v. Hempstead Union Free School District, 801 F.3d 72.

Considering Plaintiff's remaining arguments, the Second Circuit Court of Appeals concluded that "that they are without merit" and affirmed the judgment of the federal District Court dismissing Plaintiff's complaint.

Click HERE to access the Circuit Court's decision posted on the Internet.

Exhaustion of administrative remedies

It is clear that New York courts, as a general rule, will not consider lawsuits filed by an aggrieved Plaintive protesting some administrative determination unless the Plaintiff has exhausted his or her or its administrative remedies.

The major exception to this rule: a party's effort to exhaust an available administrative remedy would constitute "an exercise in futility". Typically, New York courts apply this exception when it is deemed that the administrative decision is a foregone conclusion.

There is a coda to this exception as the Appellate Division indicated in deciding the instant CPLR Article 78 action. 

The Appellate Division rejected the New York City Department of Records and Information Services' [Records] argument that the Petitioner had failed to exhaust its administrative remedies, noting that Petitioner "... filed a timely administrative appeal from [Record's] initial denial of [Petitioner's] FOIL request" and Records had denied that appeal.

The court then opined "Petitioner was not required to bring a second administrative appeal challenging [Record's] determination of [Petitioner's] first administrative appeal."

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

Employment Opportunities with the New York State Department of Education

The New York State Department of Educations invites those interested in employment with Department to explore its current job and career opportunities as it is currently seeking talented candidates to join its team. 

The Department is responsible for educational services from pre-kindergarten through graduate school and oversees licensed professions, certified educators, as well as cultural institutions including libraries, archives and museums, and provides services to individuals with disabilities. 

It is the policy of the Department to provide for and promote equal opportunity in employment, compensation and other terms and conditions of employment without discrimination on the basis of age, race, color, religion, disability, national origin, gender, genetic predisposition or carrier status, sexual orientation, marital status, or arrest and/or criminal conviction record unless based upon a bona fide occupational qualification or other exception. 

Employees are hired by the Department in accordance with the New York Civil Service Law.  Positions in this and other State agencies generally are filled through competitive examinations.  Visit the New York State Department of Civil Service (link is external) for examination announcements and information about how to apply for a Civil Service examination. 

Click HERE for additional information concerning these employment opportunities.