Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm

Authority of the arbitrator

Authority of the arbitrator

City of New York v District Council 37, 2018 NY Slip Op 03220, Appellate Division, First Department

Supreme Court granted the City of New York's petition to vacate an arbitration award, denied the grievance, and dismissed this proceeding the City brought pursuant to CPLR Article 75. The Appellate division unanimously affirmed the Supreme Court's ruling.

The court explained that an arbitrator exceeds his or her powers when the "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

However, the fact that there is a provision in a contract that the arbitrator may not alter or modify does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the intent of the parties.

In contrast, an arbitration award should be vacated where it is not derived from the contract but from the deliberate and intentional consideration of matters outside the contract.

Here, said the Appellate Division, the record shows that the arbitration award added to or modified the collective bargaining agreement as the arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

This exceed the arbitrator's powers as such an action was expressly prohibited in the agreement

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03220.htm

Distinguishing between an individual's "domicile" and his or her "residence"

Distinguishing between an individual's "domicile" and his or her "residence"

Campaniello v New York State Div. of Tax Appeals Trib., 2018 NY Slip Op 03400, Appellate Division, Third Department

From time to time an applicant for public employment or an employee is required to be "domiciled"* with the physical jurisdiction of the employer. In some instances there is some confusion between the individual's "domicile" and his or her "residence"** for the purpose of qualifying for employment with the employer with respect to the requirement that the individual be a "resident" rather than be domiciled within the physical jurisdiction of the employer.

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location.

In Campaniello the Appellate Division explained that a person's domicile "is the place which an individual intends to be such individual's permanent home ... " for it is well-settled that "domicile is established by physical presence in a particular locality coupled with the intent to remain." Further, once a domicile is established, it "continues until the individual in question moves to a new location with the bona fide intention of making such individual's fixed and permanent home there."

Should an individual seek to establish a change in domicile, it was that individual's burden to prove his or her change of domicile by clear and convincing evidence.

Below are selected court decisions that considered one or more aspects of a "residence requirement" for appointment to a position in the public service or for an individual's "continuation" in his or her public employment."

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department,

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

Terminated employees challenge City’s requirement that employees be domiciled within its jurisdiction
Matter of Ball v City of Syracuse, 60 AD3d 1312; Motion for leave to appeal denied, 63 AD3d 1671

The decision is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html

Determining “continuous residency” for the purpose of qualifying for public office or employment

Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals
The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department 

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Automatic termination from public office by operation of law
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]

The decision is posted on the Internet at:

https://law.justia.com/cases/new-york/court-of-appeals/1999/92-n-y-2d-781-0.html

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), Supreme Court, Wayne County, Docket Number: 71473/2010, Judge Dennis M. Kehoe [Not selected for publication in the Official Reports]

The Allen decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf

* See, for example, §3.2 [et seq.] of the Public Officers Law with respect to excusing certain employees from complying with a residence requirement set by a political subdivision of the State.

** An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. [See also an earlier decision involving this issue at http://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html.]

The Campaniello decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03400.htm