Appointing authority not required to provide reasons for not selecting an applicant eligible for appointment to the position where appropriate discretion has been exercised

The Plaintiff in this CPLR Article 78 action challenged the New York City Police Department's [NYPD], decision not select Plaintiff for appoint as a probationary police officer. Supreme Court granted NYPD's motion to dismiss Plaintiff's petition for failure to state a cause of action. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division, noting the Plaintiff failed "to allege any facts suggesting that NYPD's determination was arbitrary and capricious," explained that Plaintiff's passage of the civil service exam and other qualifications did not entitle him to an appointment.

Citing Matter of Gomez v Hernandez, 50 AD3d 404, the Appellate Division opined "Even [well-qualified] candidates such as [Plaintiff] ... can be denied [appointment] provided appropriate discretion is used within the confines of the 'one-of-three' rule in Civil Service Law §61.*

The court observed, "it is not arbitrary and capricious for an agency to provide no reason for an appointing official's exercise of discretion in declining to appoint a specific candidate". 

The decision also noted that Plaintiff's "allegations of delays and irregularities in the selection process do not meet his 'heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice'".

* Click HERE to access NYPPL's comments concerning the origin and application of the Rule of Three. 

Click HERE to access the Appellate Division's decision posted on the Internet.

 

 

Applying the "special errand" exception in adjudicating an application for Workers' Compensation benefits

A detective sergeant [Detective Sergeant], while on "standby-status", was en route to the precinct using his personal vehicle to travel to the precinct to, as required, secure a police vehicle to use to travel to a crime scene. Stopped at a traffic light, Detective Sergeant's vehicle was struck from behind by another vehicle, resulting in Detective Sergeant sustaining injuries.

Detective Sergeant's claim for workers' compensation benefits was controverted by his self-insured employer and its third-party administrator [Employer]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] found that the accident arose out of and in the course of Detective Sergeant's employment. Employer appealed and the Workers' Compensation Board [Board] reversed the decision of the WCLJ and disallowed the claim, finding that Detective Sergeant "was not within the scope of his employment while traveling to work and that the special errand exception did not apply."

Detective Sergeant appealed and the Appellate Division, citing Workers' Compensation Law §10[1] and earlier court decisions, reversed the Board's ruling, explaining "An injury sustained by an employee is compensable under the Workers' Compensation Law if it "aris[es] out of and in the course of the employment".  Further, said the court, "[g]iven the remedial nature of the Workers' Compensation Law, [this court has] consistently construed this requirement liberally[] in order to effectuate the economic and humanitarian objectives of the act", citing Matter of Lemon v New York City Tr. Auth., 72 NY2d 324.

Conceding that typically injuries "incurred while commuting to work are generally not covered because the risks inherent in traveling to and from work relate to the employment only in the most marginal sense", the Appellant Division ruled, as relevant here, "[t]he 'special errand' exception [rule] considers an employee to be acting within the scope of employment where, at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel''.

At the Workers' Compensation hearing, there was testimony from the Employer's witness that Detective Sergeant's shift and overtime pay did not begin until Detective Sergeant, then on "stand-by" status, "arrived at the police station and checked out a police vehicle." Such fact, said the court, even if true, is not dispositive of whether the special errand exception applies. Irrespective of when Detective Sergeant's overtime pay began, the court held that as the record reflects that Detective Sergeant was contacted at 4:15 a.m., at which time Detective Sergeant was engaged in a special errand, as he was then required to report to work early in order to pick up a police vehicle so that he could proceed directly to the crime scene in that vehicle.

Although Detective Sergeant testified that he traveled to the police station along his usual geographical route, the Appellate Division noted that "the work-related activity that Detective Sergeant was encouraged/required by his employer to do and performed for the employer's benefit upon being called in early while on standby" required Detective Sergeant to "alter[ ] the usual . . . temporal scheme of travel, thereby altering the risks to which [Detective Sergeant was] usually exposed during normal travel."

Although the Board identified the correct standard articulated by the Court of Appeals, the Appellate Division concluded that the Board had misapplied "the special errand exception by overlooking the altered temporal scheme of [Detective Sergeant's] travel and significance of the work-related activity performed by claimant for the Employer's benefit upon being contacted by the Employer while on standby."

The Appellate Division reversed the Board's decision and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Preliminary injunction bars the City of New York from continuing to collect co-payments from certain health insurance plan participants and beneficiaries

Supreme Court New York County Justice Lyle E. Frank issued a preliminary injunction preventing the City of New York continuing to require certain beneficiaries of Senior Care, a Medicare supplement plan offered by the City of New York to its current and retired employees, and their eligible dependents, to collect $15 co-payments then being charged.

The City appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division opined:

1. "Supreme Court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action," citing LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, [2d Circuit 2004];  

and

2. "Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits".

The Appellate Division's decision is set out below:

 

Bianculli v City of New York Off. of Labor Relations

2023 NY Slip Op 02822

Decided on May 25, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 25, 2023
Before: Webber, J.P., Kern, Oing, Scarpulla, Rodriguez, JJ.

Index No. 160234/22 Appeal No. 291 Case No. 2023-00232

[*1]MargaretAnn Bianculli etc. et al., Plaintiffs-Respondents,

v

The City of New York Office of Labor Relations et al., Defendants-Appellants.

Pillsbury Winthrop Shaw Pittman LLP, New York (James M. Catterson of counsel), for EmblemHealth, Inc., and Group Health Incorporated (GHI), appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Chole K. Moon of counsel), for The City of New York Office of Labor Relations and The City of New York, appellants.

Walden Macht & Haran LLP, New York (Jacob S. Gardener of counsel), and Pollack Cohen LLP, New York (Steve Cohen of counsel), for respondents.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered January 11, 2023, which granted plaintiffs' CPLR 6301 motion for an order preliminarily enjoining defendants from charging co-payments to Senior Care health insurance plan beneficiaries, unanimously affirmed, without costs.

This action relates to $15 co-payments charged to beneficiaries of Senior Care, a Medicare supplement plan offered by defendant the City of New York to its current and retired employees and their dependents, partially administered by defendant Group Health Incorporated (GHI), a subsidiary of defendant EmblemHealth, Inc. (together, Emblem).

We decline to disturb the preliminary injunction. Contrary to defendants' contentions, the injunction was prohibitory, not mandatory, and thus, was not subject to a heightened standard. The injunction prohibits defendants from continuing to collect co-payments and does not mandate specific conduct by them (State of New York v Town of Haverstraw, 219 AD2d 64, 65-66 [2d Dept 1996]; see generally Second on Second CafÉ, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009]).

Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits. The court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action (e.g. LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, 55-56 [2d Cir 2004]). Although most of the affiants averring to the nature of the harm were not named plaintiffs, defendants do not dispute that plaintiffs are likely to obtain class certification, which is supported by allegations in the complaint, and they do not dispute that the affiants would be members of the class (see id. at 57). Absent any contrary argument by defendants on the motion, it was reasonable for the court to conclude that the affiants were representative of the putative class (see id. at 58).

The court providently determined that the balance of equities favored plaintiffs. Although plaintiffs delayed in filing this action, defendants' showings regarding hardship were conclusory and limited to routine administrative actions, and not as burdensome as the hardship to plaintiffs if the injunction were denied.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 25, 2023