Appellate Division affirms Supreme Court's vacating an arbitration decision and award issued by a Hearing Officer

Supreme Court granted the Board of Education of the City School District of the City of New York's [BOE] petition to vacate an arbitration decision and award issued by the Hearing Officer. The Appellate Division unanimously affirmed the Supreme Court's ruling.

BOE had filed disciplinary charges against a tenured social worker [Employee] at the Department of Education pursuant to §3020-a of the Education Law "following investigations into allegations that [Employee] had inappropriately touched his then-girlfriend's daughter (Student A) on multiple occasions between 2012 and 2014, beginning when she was 12 years old."

At Employee's §3020-a disciplinary hearing, BOE called a number of witnesses and submitted an order of fact-finding and disposition issued by Family Court, which, among other things, found Employee guilty of sexually abusing Student A and ordered him to complete a sex offender program. 

The Hearing Officer dismissed all seven specifications filed against Employee, finding that the evidence did not support BOE's charges against him. BOE  initiated a CPLR Article 75 proceeding challenging Hearing Officer's decision.

Citing Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, the Appellate Division opined that Supreme Court "properly vacated the Hearing Officer's award, as it was not rational or supported by adequate evidence." 

The Appellate Division's decision notes that the Hearing Officer's finding "that Student A's failure to testify at the hearing violated [Employee's] due process rights is erroneous", explaining that due process "requires only that [the accused] have the opportunity to call witnesses and present evidence at the hearing, which [Employee] did."

In addition, the Appellate Division's decision states that the Hearing Officer "disregarded the testimony of witnesses from the [New York Police Department] and various state agencies who interviewed Student A and investigated her allegations regarding [Employee] on grounds that it was 'hearsay' evidence." The Appellate Division's decision then pointed out that "Hearsay is admissible in [administrative] disciplinary proceedings," citing Education Law §3020-a[3][c] and Matter of Smith v New York City Dept. of Educ., 109 AD3d 701, leave to appeal denied, 22 NY3d 856.

In the words of the Appellate Division:

The Hearing Officer's rejection of Family Court's order of fact-finding and disposition finding [Employee] guilty of child sexual abuse, on the sole basis that the disciplinary proceeding requires de novo review, was also irrational (see e.g. Matter of Board of Educ. Of Dundee Cent. School Dist. [Coleman], 96 AD3d [*2]1536, 1538-1539 [4th Dept 2012]). In reaching its determination, Family Court reviewed evidence and testimony from 11 witnesses, including Student A and investigators from various state agencies, during its fact-finding hearing. The Hearing Officer similarly ignored or gave minimal weight to the numerous pieces of evidence supporting BOE's specifications while misconstruing witness testimony to find that Student A's allegations were not credible. Given that stricter judicial scrutiny is applied to determinations rendered in compulsory arbitration (see Lackow, 51 AD3d at 567; Austin v Board of Educ. of City School Dist. of City of N.Y., 280 AD2d 365, 365 [1st Dept 2001]), BOE more than met its burden of showing that vacatur of the award is warranted.

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

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Approval of a motion to serve a late notice of claim against a governmental entity reversed

Supreme Court granted Petitioner's motion for leave to file a late notice of claim against the City of New York. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law, without costs".

The Appellate Division said Petitioner's motion should have been denied by the Supreme Court, noting:

1. The Respondent City of New York did not own the property where Petitioner alleged he was injured and the New York City Housing Authority [NYCHA] owned the property.

2. The motion for leave to file a late notice of claim against NYCHA should have been denied by Supreme Court "because [Petitioner} failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim."

3. Petitioner did not show that NYCHA acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter.

4. There was no evidence that NYCHA received Petitioner's workers' compensation claim forms, which, in any event, make no mention of the allegations against NYCHA.

5. Petitioner's contention that he did not learn of the seriousness of his shoulder injury until months later did not constitute a reasonable excuse for his delay in serving a notice of claim in view of the fact he filed the workers' compensation claim a few weeks after the accident.

6. Petitioner failed to demonstrate the lack of substantial prejudice to NYCHA through the photographs he took of the accident area and of the scaffold on which he was allegedly injured.

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

 

Department of Environmental Conservation Commissioner Basil Seggos announces new leadership appointments

On April 12, 2024 New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos announced three key appointments to leadership positions at the agency.

"I am pleased to announce key promotions to DEC’s leadership team to ensure the continued success of New York's environmental protection policies, programs, and operations across the state," Commissioner Seggos said. "Patrick Foster and Carey Merrill contribute a wealth of experience and knowledge to DEC during an agency-wide effort to modernize systems and upgrade technology to meet the evolving needs of our work safeguarding New York’s air, land, and water. The promotion of Bernette Schilling to a new leadership position will strengthen DEC’s important work in the Finger Lakes and Southern Tier. I remain confident that these experts will enhance DEC’s ongoing efforts to advance the agency mission to protect the people and natural environment of New York State.”

Patrick Foster was appointed to serve as DEC’s new Deputy Commissioner for Environmental Remediation and Materials Management. Foster will oversee the Divisions of Materials Management, Environmental Remediation, and Mineral Resources, as well as the Office of Sustainability. He started at DEC in 2013 as an Assistant Regional Attorney in Region 9 (Western New York) before transferring to Central Office where he helped establish the Natural Resource Damages section in the Office of General Counsel. Foster also served as DEC Region 2 (New York City) Regional Attorney, and most recently as Region 2 Regional Director since 2021. He is also an adjunct professor of environmental and administrative law at the City University of New York School of Law.

 

Carey Merrill was appointed as DEC’s first Deputy Commissioner for Risk and Innovation. Merrill will lead the Office of Compliance, Risk, Innovation, and Strategic Planning to advance DEC’s information technology modernization efforts, realize the agency’s strategic objectives, facilitate enterprise risk reduction and agency compliance, and support transparency of data and business practices. Most recently, Merrill served as DEC’s Special Counsel to identify, manage, and mitigate risks, and improve risk awareness throughout the agency. Her additional experience includes serving as Special Counsel to the Chief Information Officer for Ethics, Risk and Compliance in the New York State Office of Information Technology Services, and Counsel to Professional Risk, Cyber and Surety underwriters at ACE North America. Merrill was previously a Major in the United States Air Force; she served as a Judge Advocate specializing in environmental law, labor and employment relations, and military justice.

 

Bernette Schilling was named Assistant Regional Director for Region 8, which includes Chemung, Genesee, Livingston, Monroe, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, and Yates counties. Schilling has more than 30 years of experience with DEC, starting as an Environmental Monitor on the Kodak project team and including work in the Division of Air Resources. She later managed the region’s Hazardous Waste Remediation group and most recently served as Regional Engineer. Schilling represents management on DEC’s Regional Health and Safety Committee, is an active member of the Regional Sustainability Committee, participated in the agency’s Strategic Planning process, helped establish DEC’s Women’s Initiative, and was part of a multidisciplinary team awarded DEC’s Peter A.A. Berle Memorial Award for their work on the Kodak bankruptcy proceedings and transition of Eastman Business Park.