Determining if an employee's injury sustained "in the line of duty" was an accident for the purposes of eligibility for accidental disability retirement benefits

The NYC Administrative Code §13-252 requires providing Accident Disability Retirement (ADR) benefits to an injured police officer when a medical examination shows that the officer is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of  [1] an accidental injury received in such city-service while a member" of the Pension Fund and [2] the "disability was not the result of willful negligence" on the part of the officer and [3] the officer "should be retired."

If the Medical Board so finds, the Police Pension Fund Board of Trustees [Board] then makes the final determination regarding the officer's entitlement to ADR and if it finds that ADR should be approved, it becomes effective after the last day a member is on the active NYPD payroll.

Responding to a family disturbance call, Petitioner [Police Officer] was exiting "the passenger side of his patrol van in haste" when his service firearm got caught on the seatbelt, and Police Officer fell to the ground, suffering spine and shoulder injuries. Police Officer's application for ADR benefits was rejected by the Board and Police Officer appealed the Board's determination. Supreme Court granted Police Officer's CPLR Article 78 petition and remanded the matter to the Board "for an award of [ADR] benefits." The Board appealed.

The Appellate Division unanimously reversed the Supreme Court's decision "on the law," denied Police Officer's petition and dismissed Police Office's CPLR Article 78 action.

The Appellate Division explained that Supreme Court erred in granting the Police Officer's petition and in annulling the Board's determination that Police Officer's injury did not arise from an unexpected accident or from a risk inherent in the job of being a police officer. Rather, said the court, "[t]he board correctly determined that [Police Officer's] injury was not caused by an accident as defined in the New York City Administrative Code and applicable case law.

Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Department of City of New York, 57 NY2d 1010, the Appellate Division observed that "not every line-of-duty injury will support an award of accidental disability retirement [and] an injury which occurs without an unexpected event as the result of activity undertaken in the [police officer's] performance of ordinary employment duties ... is not an accidental injury," sustaining the Board's conclusion that Police Officer's injury was not the result of "a sudden, unexpected event".

Quoting from Pratt v Regan, 68 NY2d 746, the Appellate Division observed that "the catching one's heel on a running board [of a motor vehicle] and thus losing balance may be a risk of the work performed [by an employee], but coming down hard upon the other foot in a pothole is not."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05136.htm

 

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm

 

October 2020 AELE case notes, publications, and seminar alert

Americans for Effective Law Enforcement, Inc. [AELE] case notes, publications, and seminar alerts for October 2020 are set out below.

Click on the text highlighted in color to access the full alert.

Courts Address COVID-19 Issues in Prisons and Jails. New October AELE Law Journal article posted at http://www.aele.org/law/2020all10/2020-10MLJ301.pdf 

Public Safety Discipline and Internal Investigations Seminar --- Attend Virtually On Demand.  A 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations." A first: You can virtually attend the seminar on demand! The seminar became available on Monday, September 28, 2020 and will remain open for 60 days. You can register during the month of October and still have plenty of time to successfully complete this important AELE seminar. Another first is online registration and payment.  ON-DEMAND attendance at the seminar enables you to attend, review, and complete the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters. After completing the seminar, you can print out a customized attendance certificate, or take a short assessment and upon its passing, print out a customized certificate that counts as a program credit toward the exclusive AELE Certified Litigation Specialist designation. For registration and more information, click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

October 2020 Law Enforcement Liability Reporter: This issue has cases on assault and battery: physical, electronic control weapons: dart and stun modes, false arrest: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, and medical care. http://www.aele.org/law/2020all10/LR2020OCT.pdf

October 2020 Fire, Police & Corrections Personnel Reporter: This issue has cases on arbitration procedures, Bill of Rights laws, First Amendment, homosexual employees, political discrimination, retaliatory personnel actions, retirement benefits, sex discrimination, whistleblower protection, and workers’ compensation. http://www.aele.org/law/2020all10/FP2020OCT.pdf

October 2020 Jail and Prisoner Law Bulletin: This issue has cases on medical care, medical care: vision, prisoner assault: by inmate, prisoner death/injury, prisoner suicide, retaliation, search and seizure: body cavity, and strip searches: prisoners. http://www.aele.org/law/2020all10/JB2020OCT.pdf