Rebutting a statutory presumption

Rebutting a statutory presumption
Hutnik v Kelly, 37 AD3d 346

New York City police officer John Hutnik applied for accident disability retirement benefits pursuant to Section 207-k of the General Municipal Law. Section 207-k creates a rebuttable presumption that Hutnik’s “heart-related disability” underlying his application for accidental disability retirement benefits was service-related.

In this instance the Appellate Division found that this statutory presumption was “rebutted by credible evidence” that Hutnik did not suffer from a heart-related disability, notwithstanding his personal physician’s opinion to the contrary. As there was no other evidence or claim presented by Hutnik as to any other possible cause for the medical condition underlying his claim, the Appellate Division sustained the rejection of his application for accidental disability retirement benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/rebuttable-presumption.html

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief
Matter of Connor v Town of Niskayuna, 2011 NY Slip Op 01556, Appellate Division, Third Department

A number of police officers submitted applications for membership in the New York State and Local Retirement System. Although advised of the availability of two optional retirement plans available to them pursuant to §§384 and 384-d of the Retirement and Social Security Law, and that an election to become a member of either optional retirement plan must be filed within one year of becoming a police officer or member of the Retirement System, none of the police officers in this action filed an election to become a member of either of the two optional plans when they submitted their applications. Accordingly, they were automatically enrolled in the retirement plan provided by Retirement and Social Security Law §375-c.

The police officers subsequently filed an application for enrollment in the §384-d retirement plan. The Comptroller, however, issued a written determination declining to process their respective applications because the statutory one-year election period had expired.

The police officers involved then commenced this CPLR article 78 proceeding seeking to compel the Comptroller to accept their applications and to make all contributions required in connection with their membership in the §384-d plan. Supreme Court dismissed the petition on the ground that the police officers failed to exhaust their administrative remedies.

The Appellate Division affirmed the lower court’s ruling, pointing out “It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.

Here, said the court, the Retirement and Social Security Law sets out the procedure for challenging a retirement benefit determination made by the Comptroller whereby the disappointed individual is to request a hearing and redetermination and then, upon final determination of the Comptroller, he or she commence a CPLR Article 78 proceeding.

In this instance, despite their dissatisfaction with the Comptroller's decision to reject their applications as untimely, the police officers failed to avail themselves of the proceedures set out in Retirement and Social Security Law §374(d).* The Appellate Division said that that the Comptroller's written refusal to process their applications constituted a "determination" within the meaning of Retirement and Social Security Law §374(c).

As the police officers could have challenged the rejections of their respective applications by requesting a hearing and redetermination, they failed to do so. Accordingly, Supreme Court correctly dismissed their Article 78 petition for failure to exhaust the administrative remedies available to them by statute.

*§374.d provides, in pertinent part, that: “At any time within four months … the applicant or his [or her] counsel may serve a written demand upon the comptroller for a hearing and redetermination of such application. … The comptroller shall have the same power upon such hearing as upon the original application. After such hearing the comptroller shall make his final determination. A copy thereof shall be mailed to the applicant and his [or her] counsel, if any. Such final determination shall be subject to review only as provided in article seventy-eight of the civil practice law and rules.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01556.htm
.

FMLA does not cover faith healing trip

FMLA does not cover faith healing trip
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Tayag v. Lahey Clinic, ____F.3d____(1st Cir. Jan. 22, 2011), is both an interesting and important case. The First Circuit held that a company that fired a woman for taking unapproved time off to accompany her husband on a “faith healing” trip did not violate the federal Family and Medical Leave Act. The circuit agreed with a lower court's finding that the trip, a seven-week “healing pilgrimage” was not protected under the statute “because it was effectively a vacation.” Such travel is not “medical care” as defined by the FMLA, 29 U.S.C. §2601.

Mitchell H. Rubinstein

NYPPL Comments: In Sanni v NYS Office of Mental Health [USDC, EDNY, decided February 15, 2000], “faith healing” was one of the issues in a disciplinary action.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law.

Ultimately a hearing officer found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty: “Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient 'possessed by spirits.'”
.