Applying the Rule of Necessity

The Rule of Necessity is a judicial doctrine that permits a judicial, quasi-judicial or administrative decision maker or body to decide a case even if he or she or it would ordinarily be disqualified due to bias or prejudice or an appearance of bias or prejudice.

In this action Petitioners brought a combined CPLR Article 78 proceeding and declaratory judgment action against various state agencies and officials [Respondents], seeking, among other things, "to compel the performance of certain official acts and to declare unconstitutional the Ethics Commission Reform Act of 2022, the 2022-2023 state budget and that year's Legislative/Judiciary Budget Bill." Petitioners subsequently sought a preliminary injunction and then filed a motion seeking, among other things, sanctions against Respondents' counsel, disqualification of Respondents' counsel, and disqualification of the assigned Justice and, or, removal of the matter to federal court.

Supreme Court granted Respondents' cross-motion to dismiss the petition and denied Petitioners' requests for relief. Petitioners then moved to reargue the matter. Supreme Court denied that motion and Petitioners appealed.*

The Appellate Division affirmed the Supreme Court's rulings. Noting that Petitioners contended that the assigned Justice was obligated to recuse** himself from hearing the case due to a conflict of interest as the petition raised a challenge to the Legislative/Judiciary Budget Bill, through which he, and similarly situate justices receive compensation, and the court was required to remove the case to federal court. 

The Appellate Division opined that "these claims lack merit", noting that in a earlier case brought by these same Petitioners, "[t]he self-interest inherent in adjudicating a dispute involving judicial compensation would provide grounds for disqualifying not only [the assigned Justice], but every [Justice] who might replace [him or] her" [See Center for Jud. Accountability, Inc. v Cuomo, 167 AD3d 1406, appeal dismissed 33 NY3d 993; leave dismissed and denied 34 NY3d 961.

Pursuant to the Rule of Necessity, the Justice assigned to this case was authorized to preside over it (see Center for Jud. Accountability, Inc. v Cuomo, 167 AD3d at 1408). As for Petitioners' related claim that the conflict of interest divested Supreme Court of its jurisdiction under Judiciary Law §14, the Appellate Division held the Rule of Necessity provides an exception to that statute, citing Pines v State of New York, 115 AD3d 80, appeal dismissed 23 NY3d 982 .

With respect to Petitioners' claim the Supreme Court should have granted their motion to remove the matter to federal court, the Appellate Division, citing Geiger v Arctco Enters., Inc., 910 F Supp 130, said "the right of removal is vested exclusively in [respondents and a petitioner] simply may not remove an action from a state court".

Further, opined the Appellate Division, Petitioners' requests for sanctions against, and disqualification of, the Attorney General were properly denied, explaining the record shows that "the Attorney General made reasonable arguments which did not in any manner justify the imposition of sanctions" (See 22 NYCRR 130-1.1 [c]; Matter of Doe v Rensselaer Polytechnic Inst., 172 AD3d 1691; Matter of Cobado v Benziger, 163 AD3d 1103). The Appellate Division then noted that Petitioners' contention that the Attorney General should have been disqualified "is likewise unavailing", citing Executive Law §63[1].

* Footnotes in the Appellate Divisions decision indicate: 

1. "Supreme Court dismissed all claims brought by the Center for Judicial Accountability, Inc. on the ground that it was not represented by an attorney, as required for a corporation to bring a civil action; 

2: As no appeal lies from the denial of a motion to reargue, the appeal from the order denying that motion must be dismissed; and 

3: With respect to Petitioners' causes of action challenged the constitutionality of the statutory provisions which created the Commission on Ethics and Lobbying in Government, the Appellate Division noted it had "recently held those provisions to be unconstitutional, albeit on different grounds than those argued by petitioners (see Cuomo v New York State Commn. on Ethics and Lobbying in Govt., ___ AD3d ___, ___, 2024 NY Slip Op 02568".

** Other rulings addressing recusal" noted in NYPPL include:

A board member’s involvement in the disciplinary process does not automatically require recusal of that individual [Birch v County of Madison, County of Madison, 123 AD3d 1324].

Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary" [Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714].

In Opinions of the Attorney General, 92 Informal 61, the Attorney General, when asked how a member of a city council should conduct himself or herself, the opinion notes that "public officers have responsibility to exercise their official duties solely in the public interest [and] should avoid circumstances which compromise their ability to make impartial judgments." Further, public officers must avoid the appearance of impropriety in order to maintain public confidence in government.

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

 

Claimant's application for unemployment insurance benefits denied because claimant found to have voluntarily left her employment without good cause

Claimant applied for unemployment insurance benefits after she left her job claiming she had left due to "lack of work'.

The Department of Labor issued an initial determination disqualifying Claimant from benefits, finding, among other things, that she had been discharged for misconduct. Ultimately an Administrative Law Judge [ALJ] found that Claimant's testimony regarding her supervisor's behavior did not rise to the level of good cause to justify quitting her job and, thus, determined that claimant had voluntarily separated from her employment without good cause, disqualifying her from receiving benefits. Finding that Claimant had willfully misrepresented the circumstances under which she left her employment as lack of work when she had voluntarily quit without good cause, the ALJ imposed a reduced forfeiture penalty of four effective days.

The Unemployment Insurance Appeal Board affirmed the ALJ's findings that Claimant had voluntarily separated from her employment without good cause and had made willful misrepresentations in filing for unemployment insurance benefits. Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's determination. The court explained, "Whether a claimant has good cause to leave employment is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence" and "Issues of witness credibility, the evaluation of evidence and the inferences to be drawn therefrom are within the exclusive province of the Board".

While Claimant testified that her supervisor had engaged in rude, disrespectful and unprofessional behaviors toward her, had yelled at her and caused unspecified "problems," creating conflict and making her uncomfortable, the ALJ, and the Board, found that, while the supervisor may have acted in a "disagreeable manner" when interacting with claimant, the supervisor never "stepped outside the bounds of propriety." 

Further, the Appellate Division's decision reports that "Despite specific questioning, the ALJ and the Board noted, Claimant "offered only vague and generic characterizations of her supervisor's behavior and failed to recount a single incident supporting her claim that her work conditions became unbearable and that she was forced to resign." The court also observed that "Inability to get along with a supervisor does not constitute good cause for leaving employment."

Finding that substantial evidence supported the Board's factual determination that Claimant made willful misrepresentations when she filed for benefits citing lack of work when, in fact, she left under disqualifying circumstances, including claimant's own testimony acknowledging that she left her employment due to her supervisor's behavior, the Appellate Division said it discerned no basis upon which to disturb the Board's determination.

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

Son ordered to pay the New York State and Local Retirement System the $56,000 he stole from his deceased mother’s Pension Funds

On September 3, 2024, New York State Comptroller Thomas P. DiNapoli and Suffolk County District Attorney Raymond A. Tierney announced that Moses K. Johnson, 63, of Huntington and a former employee of the Town of Huntington, pleaded guilty to Grand Larceny in the Fourth Degree for stealing more than $56,000 of his mother’s public pension payments following her death in April of 2021.

“Mr. Johnson callously exploited his mother’s death to line his own pockets,” said State Comptroller DiNapoli. “I thank Suffolk County District Attorney Tierney for his partnership in bringing him to justice. My office will continue to partner with law enforcement agencies across the state and country to protect the New York State pension system from fraud.”

“The defendant’s actions were not only illegal but morally reprehensible, stealing from his own deceased mother’s pension funds,” said District Attorney Tierney.

“This case highlights the importance of our ongoing collaboration with the State Comptroller’s Office in rooting out fraud and abuse. We will continue to work tirelessly to protect the integrity of our pension systems and bring those who attempt to defraud them to justice.”

Moses’ arrest was the result of a joint investigation by the Suffolk County District Attorney and the Office of the New York State Comptroller.

According to court documents and the defendant’s admissions during his guilty plea allocution, after Johnson’s mother died on April 16, 2021, Johnson failed to notify the bank or the New York State and Local Retirement System of her death and instead, he continued to collect and spend her pension payments.

Between April 30, 2021, and June 30, 2022, Johnson collected a total of 15 unauthorized payments totaling $56,411. The stolen funds were traced from Johnson’s mother’s bank account into his bank account, from which he then spent the money.

Johnson previously worked for the Town of Huntington for over 30 years and worked in the recycling center until his retirement in 2017. As a member of the state retirement system, Johnson was aware of the pension process and knew his mother’s payments should have been terminated with her death.

On October 11, 2023, Johnson was arrested by investigators of the Suffolk County District Attorney’s Office.

On September 3, 2024, Johnson pleaded guilty to Grand Larceny in the Fourth Degree, a Class E felony, before Acting Supreme Court Justice Steven Pilewski. Justice Pilewski ordered Moses to pay restitution in the amount of $56,411. He is due back in court on Dec. 10, 2024.