New York State's Freedom of Information Law imposes a broad duty on government agencies to make their records available to the public

The Petitioner in this CPLR Article 78 action commenced this proceeding against the Village, and other named individuals, [Respondent], to compel Respondent to disclose records she had requested under New York State's Freedom of Information Law [FOIL] after the Village denied Petitioner's request for certain records.

Supreme Court denied the petition and dismissed the proceeding, holding that "[m]any of the items sought in the FOIL request [were] not records per se, but an open ended array of papers ... which are not maintained as records and are not readily identifiable or retrievable." Petitioner appealed Supreme Court's ruling.

Noting that Supreme Court determined that Petitioner failed to "reasonably describe the documents so that they [could] be located", the Appellate Division reverse the lower court's decision and remitted the matter to it "for further proceedings on the petition".

The principal questions presented to the Appellate Division by Petitioner's appeal:

1. Were the requested records "reasonably described" so as to allow the Village to locate and identify them?; and

2. Did the Respondent satisfy its obligations under FOIL by maintaining a public website, on which [it alleged] much of the information sought by the Petitioner could be found?

With respect to the identification of the records sought by Petitioner, the Appellate Division opined that questions of fact exist as to the Respondent's ability to locate, identify, and produce the records requested by the Petitioner, thereby precluding a summary determination of the petition by Supreme Court.

As to the issue concerning the ability of the Respondent to satisfy the mandates of FOIL via Internet sites, the Appellate Division held that "the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials". The Appellate Division noted that Petitioner's FOIL request included certain materials pertaining to recusals and conflict-of-interest disclosures by members of a Village Commission, various Village Boards, and other Village entities.

In opposition to the petition, Respondents had submitted affidavits asserting that agendas and minutes of public meetings were available on the Village's website "and were capable of being searched by anyone, without the necessity of a FOIL request" and "the vast bulk of the records requested by the [Petitioner were] not maintained in any manner that would allow the responsive documents to be identified in any manner that would be possible for the Village to undertake."

The Appellate Division explained that the Legislature declared that "government is the public's business" and "[T]o promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public". Indeed, said the court, "[a]ll records of a public agency* are presumptively open to public inspection," and FOIL is to be liberally construed to achieve its purposes, citing Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d at 225; and Matter of Data Tree, LLC v Romaine, 9 NY3d 454, at 463).

Further, opined the Appellate Division, "the burden of proof rests solely with the [custodian of the record] to justify the denial of access to the requested records [and] this burden must be met 'in more than just a plausible fashion'".

Concluding that Supreme Court should not have denied the petition and dismissed the proceeding, the Appellate Division reversed the lower court's judgment "on the law," reinstated Petitioner's action and remitted the matter to the Supreme Court  for further proceedings in accordance the Appellate Division's decision and directed Supreme Court promulgate "a new determination of the petition thereafter."

* FOIL is applicable to “agency” records, but FOIL's definition of “agency” expressly excludes New York State's Judiciary and the New York State Legislature as agencies within the ambit of FOIL. See Public Officers Law §86[3].

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

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New York Open Government Guide. Authored by Michael J. Grygiel, Esq., this study focuses on New York State's Freedom of Information Law [FOIL]. Click HERE to access this resource posted on the Internet.

 

 

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 10, 2023:

 

A Guide to the NYPD Hiring Process By Kevin Sheerin, Esq.

 

AI-Enabled Automation Streamlines Local Government Finance Finance automation, powered by artificial intelligence technology, is helping to save Mt. Lebanon, Pa., a significant amount of time and is simplifying the accounts payable process. READ MORE

 

Digital Cities 2023: Developing Modern, Citizen-Focused Services The 56 winning cities in this year’s awards from the Center for Digital Government focused their efforts on technology projects that impacts residents communitywide. READ MORE

 

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

 

Iowa Cyber Hub Program Works to Reach the Community Members of the community are encouraged to join a new program about cybersecurity awareness, specifically those who may not be aware of their digital risks or what to do about them. READ MORE 

 

New York City Launches Vulnerability Disclosure Program The city is inviting the public — especially developers and security researchers — to use a new platform to securely report potential vulnerabilities that they discover in city-owned websites and systems. READ MORE

 

NIST Puts Out Call for Participation in AI Consortium The National Institute of Standards and Technology has announced it is seeking participants to be part of a new consortium focused on developing evaluation methods for artificial intelligence systems. READ MORE

 

Police Chiefs Reimagine the Mission and Culture of Law Enforcement In recent years, the public perception of police culture has been defined by acts of violence against citizens. A group of chiefs and sheriffs are working to change the narrative by emphasizing a mission of service. READ MORE

 

The Future of Sustainable Cities: A Whole-of-Government Approach to Electric Vehicle Implementation EVs drive urban resilience: harnessing cross-government strategy and funding for sustainable transformation. READ MORE

 

 

Advancing a plausible "gender stereotyping” claim

Plaintiff appealed the judgment of a federal district court granting Respondents'  motion for a judgment on the pleadings on the court's determination that Plaintiff failed to plead a plausible gender discrimination* claim within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

Plaintiff had filed a complaint against the Respondents alleging Respondents had engaged in "gender stereotyping" in violation of Title VII when he was terminated from his job with the New York State Department of Environmental Conservation after 20 years of service following a disciplinary action in which he had been found guilty of sexual harassment.

The federal district court had dismissed Plaintiff’s complaint, explaining that the complaint “fails to allege any facts that support even a minimal inference of gender stereotyping” and then declined to grant Plaintiff leave to amend his complaint on the ground that it would be futile**. Plaintiff appealed the court's judgment.

"In analyzing [Plaintiff's] request to amend his complaint",*** the Circuit Court of Appeals, Second Circuit, said it reviews a district court’s decision denying leave to amend as futile "under a de novo standard." Further, citing Balintulo v. Ford Motor Co., 796 F.3d 160, the Circuit Court noted whether or not an individual's actions amounted to sexual harassment "is not for this Court to decide, as Title VII claims are not appropriately used to collaterally attack any adverse employment decision" such as the individual's termination following a disciplinary action .

As Plaintiff provided no information as to how he would amend his complaint to correct the deficiencies earlier identified by the federal district court, the Circuit Court said the district court was correct in concluding that granting Plaintiff's leave to amend his complaint would be futile.

 * Gender stereotyping refers "ascribing certain attributes, characteristics and
roles to people based on their gender".  

** A proposed amendment to a complaint is deemed futile when the amendment  “could not withstand a motion to dismiss.”

 *** The Circuit Court observed Plaintiff had the opportunity to amend his complaint after Respondents' motion to dismiss his complaint was filed by Respondents but Plaintiff stated in his answer to Respondents' motion that he “has not sought to amend his complaint".

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

 

New York State's Freedom of Information Law personal privacy exemption

Plaintiff in this CPLR Article 78 action had asked the City of New York Office of the Mayor [City] to provide redacted copies of "all Uniform Judicial Questionnaires for applicants ... under review by the Mayor's Advisory Committee on the Judiciary" submitted after a specified date pursuant to New York State's Freedom of Information Law [FOIL]. 

City declined to provide the redacted copies, contending that to do would "constitute an unwarranted invasion of personal privacy". Plaintiff appealed the City's rejection of the FOIL demand.

Supreme Court disagreed with the City's decision and, granting Plaintiff's petition, directing the City to provide Plaintiff with redacted copies of the records demanded. The City  appealed Supreme Court's order and the Appellate Division unanimously reversed the lower court's ruling, on the law, and dismissed Plaintiff's CPLR Article 78 petition, without costs.

After addressing a number of procedural issues, the Appellate Division said that City had properly applied the personal privacy exemption* in denying Plaintiff's FOIL request. 

The court opined that the City had sustained its burden of establishing that disclosure of the records sought by Petitioners in this case would "constitute an unwarranted invasion of personal privacy", in particular noting that the questionnaire had the word "CONFIDENTIAL" in upper-case letters and boldface near the top of its first page. 

The Appellate Division opined that to provide the documents demanded by Plaintiff "would undermine the assurances of confidentiality provided to candidates for judicial office", citing Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 19 NY3d 373, cert denied 568 US 1157. In the words of the Appellate Division, "disclosure would create a chilling effect, thus potentially diminishing the candor of applicants and causing others to decide against applying for judicial positions" as the questionnaire contains numerous questions touching on sensitive personal matters.** 

In addition to the thrust and extent of the questionnaires, the Appellate Division observed that disclosure of the questionnaires could result in harm to certain applicants by revealing that they sought to leave their current employment or that they were ultimately unsuccessful in their efforts seeking a judicial position, citing Matter of Asian Am. Legal Defense & Educ. Fund v New York City Police Dept., 125 AD3d 531, leave to appeal denied 26 NY3d 919.

* Public Officer's Law §89[2][a].

** The information sought included personal relationships, reasons for leaving jobs, reasons for periods of unemployment, substance abuse, arrests, criminal convictions, testifying as a witness in criminal cases, as well as "a catch-all question at the end of the questionnaire" asking for any other information, specifically including unfavorable information, that could bear on the evaluation of the judicial candidate.

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

 

Where statements in an affidavit are contradicted by official records concerning an event, the official records trump the statements in the affidavit

The Board of Trustees [Board] denied a Plaintiff's application for accidental disability retirement [ADR] benefits pursuant to the World Trade Center [WTC] Disability Law, Administrative Code of City of NY §13-252.1 based on its finding that the official New York Police Department [NYPD] records showed that Petitioner was not working at a WTC-qualifying site during the first 48 hours after the November 11, 2001, attack on the World Trade Center or for 40 hours any time during the qualifying time period.

Plaintiff appealed the Board's decision. Supreme Court, however, dismissed Plaintiff's CPLR Article 78 proceeding seeking to annul the Board's determination. The Supreme Court's ruling was unanimously affirmed by the Appellate Division.

The Appellate Division's decision notes that official NYPD records showed that Plaintiff worked at various nonqualifying locations in New York City during the relevant time period. The court explained that the Board "was entitled to discount [Plaintiff's] affidavit concerning his presence at WTC-qualifying locations, since the averments in that affidavit were contradicted by NYPD records, including roll call records that [Plaintiff] signed."  

In addition, the Appellate Division's decision indicates:

[1] Plaintiff's "affidavit was at odds with the WTC Notice of Participation form that [Plaintiff] completed with respect to his activities on 9/11; and

[2] "The Board was entitled to reject affidavits from [Plaintiff's] family and friends on the grounds that they were conclusory, insufficiently specific, or not based on the affiants' personal knowledge."

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

 

Accidental Disability Retirement benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident

Supreme Court granted the petition brought a New York City firefighter [Firefighter]  pursuant to CPLR Article 78 to annul the determination of Board of Trustees of the New York City Fire Department, Subchapter II Fire Pension Fund [Fund] rejecting a Firefighter's application for accidental disability retirement [ADR] benefits and for attorneys' fees. Fund appealed Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law, without costs," and dismissed the proceeding brought pursuant to CPLR Article 78.

In the words of the Appellate Division, "ADR benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident, i.e., "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'", citing Matter of Brown v Kelly, 100 AD3d 480, quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 57 NY2d 1010, 1012.

The Appellate Division explained "[Firefighter's] injury was the result of an incidental — not accidental — event," referencing Matter of Kelly v DiNapoli, 30 NY3d 674, because Firefighter's injury was sustained while Firefighter was performing routine duties, not as a result of an unexpected event as the dehydration suffered by Firefighter while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise.

Further, citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the Appellate Division observed Supreme Court should not have awarded Firefighter attorneys' fees as there was "no basis for the award absent an agreement, statute, or court rule providing for [such] relief".

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

***

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Vacating an arbitration award pursuant to CPLR §7511

The Employer sought to terminate an Employee based on his arrest, criminal conviction, and the nature of the charges.

The collective bargaining agreement between the Employer and the Employee's collective bargaining representative [Union], provided arbitration is mandatory when the Employer seeks to discipline or terminate any employee. The Arbitrator was to decide whether the Employer had just cause for disciplining the employee and, if so, whether termination was the appropriate penalty.

The Arbitrator found that the Employer [1] had just cause to discipline Employee; [2] the Employee's actions created "adverse criticism" for the Employer; and [3] based on compelling mitigating factors, the appropriate penalty was a time-served suspension without pay rather than termination.

The Employer moved to vacate the award pursuant to CPLR 7511. The Union opposed the Employer's motion.

Noting that arbitration is highly favored in New York, Supreme Court, citing Falzone v NY Central Mutual Fire Insurance Company, 15 NY3d 530 and Goldfinger v Lisker, 68 NY2d 225, said although "courts seldomly disturb arbitration awards even if the courts would have reached a different conclusion ... [an] arbitration award, however, may be vacated upon a judicial finding that the rights of one of the parties was prejudiced by one of three reasons, the partiality of the arbitrator; or by corruption, fraud, or misconduct on the part of the arbitrator; or by a finding that the arbitrator exceeded her or his powers."

Observing that in Goldfinger the Court of Appeals expressly held that "precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded", Supreme Court opined that although Arbitrator prepared a thorough 14-page Opinion and Award, "the Opinion part lacks neutrality."

In the words of the court, "The Arbitrator crossed the thin and often difficult line between a compassionate neutral and an advocate for one side, the employee. The Arbitrator mistakenly believed that his role was to render a decision that aided and supported the employee's re-integration into the community rather than fairly and objectively decide an employer-employee dispute. In doing so, the Arbitrator prejudiced the [Employer's] right to a fair and impartial arbitration process."

Supreme Court then vacated the award on the ground of partiality pursuant to CPLR 7511(b)1.[ii] and, in compliance with the applicable terms of the collective bargaining agreement, ordered the matter remitted "expeditiously to arbitration with another arbitrator."

* The employee plead guilty to the crime of attempted endangering the welfare of a child.

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

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 3, 2023

Accelerating Traffic Safety Analysis

Biden Signs Executive Order Regulating Artificial Intelligence President Joe Biden is directing the government to take a sweeping approach to artificial intelligence regulation, his most significant action yet to rein in an emerging technology that has sparked concern and acclaim. READ MORE

Cyber Teams, Criminals Are Looking for Wins With Generative AI Companies are embracing cyber defenses based on generative AI hoping to outpace attackers’ use of tools like FraudGPT, the “villain avatar of ChatGPT.” But more effort is needed, experts warn. READ MORE

Digitizing Disbursements: The Next Step in Modernizing Government Transactions

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

Embracing Intelligent Automation

Federal Government Offers Cybersecurity Toolkit for Health Sector CISA and partners announced a toolkit bringing together advice and other resources to help health care and public health organizations improve their cyber postures. READ MORE

High-Velocity IT Service Management for Government

How Are State and Local Governments Navigating AI Regulation? President Joe Biden signed an executive order to regulate artificial intelligence, but how are state and local governments handling it? Many are exploring how AI can enhance services, while others are temporarily banning its use. READ MORE

Keeping Up With State and Local AI Policies and Guidelines Regulations around generative AI are rapidly evolving. This list will keep you up to date on what governments are doing to increase employee productivity and improve constituent services while minimizing risk. READ MORE

Learn How Public Sector IT Leaders are Closing Cyber Risk Gaps Created by Visibility Silos The mission: reduce the exposure of critical public infrastructure and services to cyberattacks. The roadblock: too many tools, yet not enough insight. The solution? Tanium. EXPLORE THE SOLUTION

Leveraging Identity: A Public Sector Guide for External Services

OMB Offers Draft AI Implementation Guidance for Comment New draft policy from the U.S. Office of Management and Budget aims to offer guidance for AI governance structures that will help agencies to implement and apply AI technologies in a responsible way. READ MORE

Personalizing Constituent Journeys: Measuring Digital Government Experiences 

Securing America's Digital Infrastructure We round up industry best practices on topics such as security, threats, and privacy. See how companies are helping state and local agencies tackle and prepare for all things cybersecurity.

The Public Sector Guide to Generative AI 

Tyler's New AI Acquisition Focuses on Government Field Work The gov tech giant has bought ARInspect, which sells an AI-backed platform for inspections of bridges, utilities and other public-sector assets and facilities. The move marks Tyler’s second AI buy in recent months. READ MORE

Vital U.S. Partnerships With Canada on All Things Cyber At the InCyber Forum North America, held this past week in Montréal, Canada, the importance of maintaining meaningful global partners in cybersecurity was never more evident. READ MORE

Website Redesign Tool Kit

What Artificial Intelligence Can Do for Public Works and Transportation

 

Evaluating an application for accidental disability retirement

Petitioner, a police officer, applied for accidental disability retirement benefits claiming that she was permanently incapacitated from performing her job duties due to injuries sustained in three incidents while "on the job".

At the hearing Petitioner conceded in her post hearing brief that the one incident, Incident #1, did not constitute an accident.* 

The Hearing Officer then found that the other two incidents reported did not constitute accidents within the meaning of the Retirement and Social Security Law. The Comptroller affirmed the Hearing Officer's determinations and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's ruling, explaining:

1. The applicant for accidental disability retirement bears the burden of establishing that the disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination will be sustained if supported by substantial evidence, citing  Matter of McDermott v Gardner, 215 AD3d 1206];

3. For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"; and

4. An injury that results from "the performance of ordinary employment duties and is a risk inherent in such job duties" is not considered accidental, noting the Appellate Division's decision in Matter of Walsh v DiNapoli, 214 AD3d 1282.

Referencing Matter of Bodenmiller v DiNapoli, 215 AD3d 96, the Appellate Division opined: "precipitating events that arise out of a risk inherent in the petitioner's ordinary job duties, i.e., the work performed ... can never be considered accidents because, by definition, they are not unexpected and therefore cannot be the basis for an accidental disability pension ...". 

* During the administrative hearing Petitioner's had counsel conceded that Incident #1 was not an accident and did not cause Petitioner's permanent disabilities but subsequently  retreated from that concession. In her post administrative hearing brief Petitioner argued that Incident #1 was, indeed, an accident. The Hearing Officer found that the concession that Incident #1 was not an accident apparently was a mistake and proceeded to rule on the issue, affirmatively finding that Incident #1 was not an accident. Under the circumstances, the Appellate Division said given "the confusion" and the fact that Petitioner raised the issue concerning Incident #1 in her petition, and in her appeal brief, it elected to address Incident #1 "on the merits".

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

 

 ===============

Disability benefits for New York State and municipal employees

An e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

 

 

 

Former Morley Fire Volunteer Company treasurer pleads guilty to stealing over $16,000

On November 2, 2023, New York State Comptroller Thomas P. DiNapoli announced a  former treasurer of the Morley Volunteer Fire Co., Cindi Perkins, pleaded guilty to grand larceny in the fourth degree for stealing over $16,000 from the company over a three-year period.

DiNapoli said “Ms. Perkins was entrusted with money meant to protect her community. Instead, she betrayed the fire company and her neighbors by enriching herself.” Noting that combating fraud and protecting taxpayer money is a priority of his, the Comptroller thanked "St. Lawrence County District Attorney Gary Pasqua and the New York State Police for partnering with [his] office to bring her to justice.”

Perkins, who worked for the fire company from 2016 to 2019, made unauthorized cash withdrawals, failed to deposit fire company funds, made unauthorized purchases, and wrote unauthorized checks to herself. The monies were a combination of payments from the Town of Canton and the Morley Fire District, as well as fundraising dollars.

Investigators found the 58-year-old Perkins, who controlled all aspects of the fire company’s finances, made more than $16,000 in personal cash deposits soon after similar cash amounts were paid to the Morley Volunteer Fire Co.

Bank records also showed ATM withdraws made from the Morley Volunteer Fire Company accounts at the Del Lago Resort and Casino and the Turning Stone Resort Casino.

Perkins used the stolen money for personal purchases including groceries, makeup, and other retail consumer items, investigators found.

Perkins, of Canton, pleaded guilty in St. Lawrence County Court. She is due back in court for sentencing on Jan. 3, 2024.

In another case of alleged "Jobbery" -- Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain" -- State Comptroller DiNapoli, Steuben County District Attorney Baker and the New York State Police announced the arrest of a former Village of Addison official for an alleged theft of more than $1.1 million. Click HERE for details.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

New York City and New York State Human Rights Law complaints are generally analyzed under less demanding standard than are federal discrimination claims

Supreme Court's rejection of Defendants' [City Respondents] motion to dismiss Plaintiff's causes of action alleging discrimination and retaliation under the New York City Human Rights Law [City HRL] and New York State Human Rights Law [State HRL]; her aiding and abetting claims; and her claims under the Gender-Motivated Violence Act [GMVA]* was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division held that dismissal of Plaintiff's federal discrimination claims at the pleading stage "does not preclude Plaintiff's City and State Human Rights Laws claims based on principles of collateral estoppel." 

In addition, the court noted that "employment discrimination claims brought under the City and State HRLs are generally analyzed under a more lenient notice pleading standard than federal discrimination claims and need only give a Defendant "fair notice" of the nature and grounds of Plaintiff's claims."

On a "motion to dismiss" a court a must accept allegations which evidence at least some gender-based animus as true. In this instance the Appellate Division found:

1. Plaintiff sufficiently pleaded her claims of discrimination and hostile work environment under the State and City HRLs by alleging she received more intense scrutiny and was excluded from meetings that her male, non-Black peer was invited to join;

2. Plaintiff had sufficiently pleaded her retaliation claim, as the complaint alleges, and therefore provides City Respondents with fair notice of City Respondents' alleged retaliatory conduct following Plaintiff's protected actions of filing various complaints and retaining counsel in response to City Respondents' allegedly discriminatory acts; and

3. Plaintiff sufficiently stated a claim under the GVMA as she alleged she had been physically harmed her by being struck by another individual and that individual had directed animus against another Black female employee in the past.

The Court said it must accept these allegations, which evidence at least some gender-based animus, as true on a motion to dismiss (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 241 [2021]).

* Administrative Code of City of NY § 8-903.

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

Request for exemption from the New York City Department of Education's COVID-19 vaccination requirement denied

The New York City Reasonable Accommodation Appeals Panel [Panel] denied an Educator's request for a religious exemption from the COVID-19 vaccination requirement for employees of the New York City Department of Education [DOE]. Supreme Court dismissed Educator's CPLR Article 78 petition appealing the Panel's decision, which ruling was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division opined that the denial of Educator's request for a religious exemption and reasonable accommodations for her job as a school teacher was not arbitrary and capricious, noting DOE's argument that "allowing [Educator] to teach remotely while the DOE was resuming in-person instruction, would impose an undue hardship on the [DOE]".

The DOE's "Position Statement" explained that accommodating Educator would result in her being unable to perform her essential functions as a schoolteacher and given that more than 3,300 DOE employees had requested religious exemptions, "granting an exemption to the employees would impose on the DOE significant costs and operational difficulties associated with creating alternative assignments for the exempted employees, and retaining and hiring additional staff to perform the exempted employees' essential job functions". This, said the Appellate Division, "was a rational basis for the denial of [Educator's] request."

Addressing a procedural matter, the Appellate Division observing the fact DOE's Position Statement was "unsigned and undated hearsay", said "[h]earsay evidence can be the basis for an administrative determination", citing Matter of Gray v Adduci, 73 NY2d 741, and "this Court need not limit our review to the language in the Citywide Panel's decision, as the Panel noted that it had reviewed the DOE's determination as well as the documentation submitted to the agency, and that it based its decision on that review."

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

N.B. A decision by the United States Circuit Court of Appeals, Second Circuit, Candice D'Cunha v Northwell Health Systems, [23-476-cv], addresses alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990 (“ADA”) when Northwell refused to accommodate D'Cunha's requests for a COVID-19 vaccine exemption and terminated her employment. Click HERE to access the D'Cunha decision posted on the Internet.