Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
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§2.c of the New York City Police Department's General Regulations Procedure 203-10, Public Contact – Prohibited Conduct, bars an individual subject to its provisions from knowingly associating with any person or organization "Reasonably believed to been engaged in, likely to engage in, or to have engaged in criminal activities."
The New York City Police Department [NYCPD] terminated a NYCPD employee [Petitioner] after a Hearing Officer found that the Petitioner was guilty of associating with an individual "who he should have reasonably believed was involved in criminal activity." Petitioner commenced a CPLR Article 78 action challenging his dismissal from the Department.
The Appellate Division sustained NYCPD's action, finding that the determination that Petitioner was guilty of association with an individual who he should have reasonably believed was involved in criminal activity and in failing to report corruption was supported by substantial evidence.
The court also rejected Petitioner's contention that the Hearing Officer incorrectly considered admissions made in the course of his Internal Affairs Bureau [IAB] interview beyond those that were included in exhibit introduced at the hearing as "unavailing," noting that the Hearing Officer specifically stated that he intended to consider all the portions of the IAB transcript "that amounted to admissions and the limited context necessary to understand" Petitioner's testimony.
The Appellate Division unanimously confirmed NYCPD's action and dismissed Petitioner's appeal, opining that "[t]he penalty of termination does not shock one's sense of fairness."
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07483.htm
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The Medical Board [Board] of the New York City Employees' Retirement System [NYCERS] evaluated a New York City Department of Sanitation employee [Applicant] then serving as a Sanitation General Superintendent, Deputy Chief, who had applied for accidental disability retirement [ADR] benefits. After reviewing Applicant's medical records the Board determined that, although the Applicant was disabled due to his right knee injury, the incident that caused Applicant's injury was not an accident. The Board recommended that the Applicant be denied ADR benefits and, instead, be granted ordinary disability retirement [ODR] benefits.*
The Board of Trustees [Trustees] of the NYCERS adopted the findings and recommendation of the Board and disapproved Applicant's ADR application for the reasons advanced by the Board.
Applicant filed a CPLR Article 78 petition seeking judicial review of the Trustees' denial of his application for ADR. Supreme Court granted Applicant's petition to the extent of "annulling the determination and remitting the matter" to the NYCERS for further proceedings and NYCERS, the Trustees, the Board, and the City of New York appealed the Supreme Court's decision to the Appellate Division.
The Appellate Division sustained the Supreme Court's decision, explaining:
1. Retirement and Social Security Law §605-b[b][1] provides that a [New York City] Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident,** not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service ... shall be retired for accidental disability;"
2. Not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits; and
3. Applicant's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing.
The Appellate Division concluding that Applicant's injury was not the result of a risk of his ordinary employment duties but rather the result of a sudden, fortuitous, and unexpected precipitating event, and noting "the unrefuted credible evidence regarding Applicant's ordinary employment duties," held that "the challenged determination was made without sound basis in regard to the facts, and thus, the [Trustee's] determination was arbitrary and capricious."
Accordingly, the court sustained the Supreme Court's determination granting Applicant's petition to the extent of, in effect, "annulling the determination and remitting the matter for further proceedings."
* ODR benefits are typically less generous than ADR benefits.
** Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division noted that an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07197.htm.