The New York State Department of Civil Service issues new Attendance and Leave Policy Bulletin

The Department of Civil Service has published the following Attendance and Leave Bulletin; Policy Bulletin 2024-12

               Implementation of the Productivity Enhancement Program for 2025

The Text of Policy Bulletin 2024-12 will be found at:

https://www.cs.ny.gov/attendance_leave/PolBull24-12.cfm

If you wish to print Policy Bulletin 2024-12, the Department offers a version in PDF format at: 

https://www.cs.ny.gov/attendance_leave/2025PEPCombined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: 

https://www.cs.ny.gov/attendance_leave/index.cfm

 

Plaintiff's failure to raise any argument regarding an issue deemed to be an abandonment of plaintiff's claims concerning the issue

Supreme Court granted defendants' motions to dismiss the plaintiff's amended complaint. Plaintiff appealed. The Appellate Division unanimously affirmed the Supreme Court's decision in a terse opinion, which is set out below. 

Anonymous v Anonymous

2024 NY Slip Op 05303

Decided on October 29, 2024

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: October 29, 2024
Before: Singh, J.P., Pitt-Burke, Higgitt, Rosado, O'Neill Levy, JJ.

Index No. 101183/20 Appeal No. 2907 Case No. 2023-03150

[*1]Anonymous, Plaintiff-Appellant,

v

Anonymous et al., Defendants-Respondents.

Anonymous, appellant pro se.

Walden Macht & Haran LLP, New York (Daniel Chirlin of counsel), for the Northeastern Team respondent.

Guha PLLC, New York (Kelly Mcgee of counsel), for the Union respondent.

Kobre & Kim LLP, New York (Steven G. Kobre of counsel), for the League respondent.

Lewis Baach Kaufman Middlesmiss PLLC, New York (Elizabeth Velez of counsel), for the Southern Team respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about May 10, 2023, which granted defendants' motions to dismiss the amended complaint, unanimously affirmed, without costs.

By failing to raise any argument regarding the nonplayer defendants, plaintiff abandoned all her claims except those for negligent infliction of emotional distress and aiding and abetting retaliation (see Weis v Rheem, Bell & Freeman, LLP, 217 AD3d 538, 539 [1st Dept 2023]).

Plaintiff failed to show she was an intended third-party beneficiary of the parties' collective bargaining agreement (CBA), as others could enforce its provisions, and the language did not support an intention to provide her with any rights (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710 [2018]). For that reason, plaintiff failed to identify a source of duty from defendants that would support her negligent infliction claim (Sacino v Warwick Val. Cent. Sch. Dist., 138 AD3d 717, 719 [2d Dept 2016]). That claim was also properly dismissed because no claim for emotional harm will lie for breach of a duty based on contract (Wehringer v Standard Sec. Life Ins. Co. of N.Y., 57 NY2d 757, 759 [1982]).

Furthermore, since plaintiff was not a beneficiary of the CBA, she could not sue for a breach of its anti-retaliation provisions. Moreover, even if she could, she failed to identify any conduct of defendants to "aid and abet" the breach, other than inaction, which is insufficient as a matter of law (Land v Forgione, 177 AD3d 862, 864 [2d Dept 2019]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: October 29, 2024

Employee terminated after being found guilty of misappropriation of employer's equipment for personal use and other charges of misconduct

Faye Lewis, a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] recommended a sanitation worker [Respondent] found guilty of misusing or misappropriating a New York City Department of Sanitation's collection trucks for his personal use, used racist and profane language toward police officers, and engaged in other act of misconduct be terminated from his position.*

Respondent was found guilty of using the Department’s sanitation trucks to collect furniture and refuse outside his house.

In a separate incident, after being arrested for driving while intoxicated, Respondent directed multiple racial slurs and obscenities to police officers and a Department supervisor. Although Respondent was off-duty at the time of his arrest, the ALJ determined that Respondent may be disciplined for the misconduct because there is a sufficient nexus between Respondent’s comments toward the Department supervisor and his position as a city employee, as well as Respondent’s comments to the police officers and Respondent public-facing job as a sanitation worker. 

The ALJ further found that Respondent’s intoxication was not a defense, noting that while intoxication may have been a contributing factor, Respondent did not establish that it was the sole cause for his multiple racist statements.

Respondent also failed to report another arrest to the Department and inappropriately took sick leave for the time he was in police custody. 

The ALJ also sustained charges of Respondent's being absent without from work without permission and committing sick leave violations.

Taking into account Respondent’s substantial disciplinary history, the ALJ determined that termination was the only appropriate penalty to be imposed on Respondent and so recommended to the appointing authority. Commissioner Jessica S. Tisch accepted and implemented Judge Lewis' recommendation.

* In the words of the Administrative Law Judge: "I find that respondent: engaged in the unauthorized use of a Department collection truck on the morning of January 3, 2020, and later lied about it to FIAT [The Department of Sanitation's Field Investigations Audit Team]; misappropriated a Department collection truck on the evening of January 3, 2020, and later failed to cooperate with an official investigation about the misappropriation; used derogatory language toward police officers and a Department supervisor; violated sick leave rules on three occasions; and was AWOL three times. I recommend that respondent’s employment be terminated."

Click HERE to access Judge Lewis' decision posted on the Internet.