Certain teachers employed by the New York City Department of Education seek court order permitting them to "telework remotely"

A number of teachers [Petitioners] employed by the New York City Department of Education [DOE] initiated a CPLR 78 action seeking a court order permitting them to "telework remotely" rather then report to work in person. The Petitioners:

(1) Challenged as arbitrary and capricious the July 15, 2020, DOE's remote teaching policy for the 2020-2021 school year issued in response to the Covid-19 pandemic; and

(2) Sought a court order compelling DOE to allow Petitioners “and all others similarly situated" to telework remotely on full salary or without loss of leave.

Essentially Petitioners’ motion sought a temporary restraining order [TRO] prohibiting DOE from forcing Petitioners to report to work in person, charging their "Cumulative Absence Reserve and sick leave days" as the result of "telework" related absences, if any, and compelling DOE to permit Petitioners to teach remotely.

Supreme Court, after oral argument, opined that "In evaluating the balance of equities on a motion for a preliminary injunction, courts must weigh the interests of the general public as well as the interests of the parties to the litigation,” citing Amboy Bus Co., Inc. v Klein, 2010 NY Slip Op 31356[U]. To obtain an injunction, said the court, a plaintiff is “required to show that the irreparable injury to be sustained is more burdensome to him than the harm that would be caused to the defendant through the imposition of the injunction.”

Explaining that ".... several Petitioners have already been granted leave to work remotely until at least September 21, 2020, or have simply declined to return in-person until further notice," the court held that "the balance of the equities — by an exceedingly thin margin — favors Petitioners."

Supreme Court then granted the TRO solely to the extent that DOE may not, "until further order of the Court:"

a. Compel the named Petitioners to report to work in person;

b. Deny the named Petitioners the ability to work remotely; and

c. With respect to the named Petitioners, deny or deduct salary and/or leave time for remote work.

Supreme Court then ordered the parties to telephone the court to discuss the logistics of an expedited hearing on the preliminary injunction and Petition.

The Supreme Court's decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_33016.pdf

 

 

Termination for ordinary disability pursuant to §73 of the Civil Service Law

§73 of the Civil Service Law, "Separation for ordinary disability," in pertinent part provides that in the event an employee on leave for ordinary disability pursuant to §72 of the Civil Service Law has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "his employment status may be terminated and his position may be filled by a permanent appointment."

The Town terminated a police sergeant [Petitioner] employed by the Town's Police Department pursuant to Civil Service Law §73. Petitioner, contending that the determination to terminate his employment was made in violation of lawful procedure and was affected by error of law, challenged the Town's action. Supreme Court denied Petitioner's CPLR Article 78 petition and dismissed the proceeding.

The Appellate Division subsequently affirmed the Supreme Court's ruling, opining that although an administrative determination may be annulled when it "was made in violation of lawful procedure [or] was affected by an error of law" there were no relevant issues of fact that would have necessitated a post-termination hearing, citing Prue v Hunt , 78 NY2d 364.* 

However, a §73 termination is not pejorative and a former employee may, within one year after the termination of the disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. 

If the former employee is found medially qualified to perform the duties of his former position he is to be reinstated. In there is no vacancy to which he may be appointed, the former employee's name is to be placed on a preferred list. Further, the individual is eligible for appointment to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. 

* NYPPL's summary of the Court of Appeals' decision in Prue is posted on the Internet at https://publicpersonnellaw.blogspot.com/2012/02/pre-termination-hearings-required-when.html 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_04944.htm

 

 

Attorney disciplined after pleading guilty to misprision of felony

Misprision of felony" originated in English common law and constitutes a crime  wherein an individual having knowledge that a felony has been committed fails to inform the appropriate authorities of that event. 

This Appellate Division decision reports that an attorney [Respondent] "pleaded guilty, in the United States District Court for the Western District of New York to misprision of a felony* in violation of 18 USC §4." Respondent had served as the settlement attorney representing "The Funding Source" [TFS] in a number real estate transactions that involved loans insured by the Federal Housing Administration [FHA].

In the course of his participation in a number of New York State real estate transactions the Appellate Division found that Respondent had learned that his co-defendants were engaged in a scheme to fraudulently obtain mortgages on behalf of unqualified borrowers that were insured by the FHA. This involved the submission of certain documents knowing that certain information in those documents was false.** 

The Appellate Division's decision reports that although Respondent did not know the full extent of the scheme, he "became aware he was being used to defraud financial institutions and he failed to notify authorities of his codefendants' use of fraud to obtain funds from TFS." The decision also notes that "Respondent also took affirmative steps to conceal the fraud by signing, or having his paralegal sign, documents sent to the banks."

Respondent, said the court, had received fees in transactions in which he served as settlement attorney. In other transaction, in which Respondent was one of the three sellers and also represented the purchaser, the Appellate Division noted that he had received his initial investment plus a profit. 

With respect to such monies, the Appellate Division observed that "Respondent has paid restitution ... for the seven transactions in which he had served as settlement attorney."

Ultimately the Appellate Division granted the parties' in the instant action joint motion for discipline by consent and Respondent was "suspended from the practice of law in the State of New York for a period of two years, effective ... April 18, 2019, and until further order of this Court." 

* Citations to selected New York State decisions referencing "Misprision of Felony" are set out below. Click on the text highlighted in colorto access the text of the decision.

Matter of Fishman, 22 A.D.3d 100, 2005 NYSlipOp 06802

Matter of Calonge v Calonge, 52 AD3d 1111, 2008 NYSlipOp 05630;

Matter of Marino, 73 A.D.3d 5, 2010 NYSlipOp 01800;

Matter of McKenzie, 177 AD3d 134, 2019 NYSlipOp 06729;

People v Jenkins, 55 Misc 3d 1207(A), 2017 NYSlipOp 50449(U); and

People v Williams, 20 AD3d 72, 2005 NYSlipOp 04317.

** Respondent stipulated that [1] he stands convicted of a "serious crime" (see 179 AD3d 19);  [2] he violated the New York Rules of Professional Conduct; and [3] he is subject to discipline by the Appellate Division pursuant to 22 NYCRR 1240.12(c)(2). 

The instant decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04813.htm