Determining a retirement system member's eligibility for accidental disability retirement

On May 9, 2018 the Board of Trustees of the New York City Police Pension Fund [Board] denied a New York City police officer's [Officer] application for accident disability retirement [ADR]. Officer challenged the Board's decision and Supreme Court granting his CPLR Article 78 petition seeking to vacate the Board's determination and awarded Officer ADR benefits retroactive to December 1, 2010. 

The Board appealed and the Appellate Division unanimously reversed the Supreme Court's ruling "on the law," and dismissed Petitioner's Article 78 action. 

The Appellate Division opined that the Board's denial of Officer's application for ADR benefits was not arbitrary and capricious noting that the relevant date for purposes of disability is at or prior to the applicant's retirement from service, citing Matter of Gullo v Kelly, 50 AD3d 449, leave to appeal denied 11 NY3d 702.

The court noted that the Medical Board's consideration of evidence and reports after Officer's retirement, and its conclusion that Officer was disabled several years after his retirement, "does not change the relevant date for entitlement to ADR" benefits.

Further, said the Appellate Division, the Medical Board was entitled to rely on its own examinations and testing of Officer as well as its review of Officer's medical records. These provided some credible evidence to support the Medical Board's finding that Officer was not disabled at the time of his retirement.

Referring to Matter of Khurana v Kelly, 73 AD3d 497, leave to appeal denied 15 NY3d 715, the court held that the Medical Board "was not bound by the contrary opinions of [Officer's] treating physicians."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05282.htm

 

Diversity training programs

In an article captioned "Diversity Work, Interrupted",* Inside Higher Ed's daily news update dated October 7, 2020, reports that "some institutions have begun to cancel diversity, equity and inclusion programs in response to an Executive Order, "Executive Order on Combating Race and Sex Stereotyping," issued on  September 22, 2020.

Preliminary guidance from the State University of New York notes that the order "makes a passing reference to a carve out for education, stating (in full) that '[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.'" Yet it is "unclear how the EO would define its 'objectivity' and 'non-endorsement' requirements." 

The Executive Order is posted on the Internet at https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/. 

* See https://www.insidehighered.com/news/2020/10/07/colleges-cancel-diversity-programs-response-trump-order?utm_source=Inside+Higher+Ed&utm_campaign=275597c9a5-DNU_2020_COPY_02&utm_medium=email&utm_term=0_1fcbc04421-275597c9a5-236506338&mc_cid=275597c9a5&mc_eid=bf9965f865

Employee terminated from employment after progressive disciplinary action taken by the appointing authority

Supreme Court denied the petition filed by the employee [Educator] pursuant to CPLR Article 75 seeking to vacate an arbitration award that, after a hearing pursuant to Education Law §3020-a, found the Educator guilty of the disciplinary charges filed against him and imposed the penalty of dismissal from employment.

Educator appealed but the Appellate Division unanimously affirmed the lower court's ruling.

Citing Cipollaro v New York City Dept. of Educ., 83 AD3d 543, the Appellate Division opined that "[t]]he penalty of termination of [Educator's] employment as a public school teacher does not shock one's sense of fairness."

The court explained that the record shows that Educator failed to instruct students during class time, instead using the time to perform personal tasks on Educator's own laptop computer, noting that the record showed that Educator "had previously been placed on notice that such conduct was not permitted, and prior disciplinary action had failed to remedy [Educator's] misconduct."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05474.htm. 

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