Volunteer firefighter terminated after knowingly making false statements on a medical questionnaire regarding his physical condition

A volunteer firefighter was found guilty of disciplinary charges filed against him pursuant to Section 75 of the New York State Civil Service Law alleging misconduct and insubordination. 

The penalty imposed: terminated of the Petitioner's membership as a volunteer firefighter as the result of the firefighter's having "knowingly made false statements on a medical questionnaire regarding his physical condition."

The Appellate Division, citing Matter of Rutkunas v Stout, 8 NY3d 897 and other decisions, held that the firefighter's action demonstrated a disregard for the safety of other firefighters and the general public. 

In sustaining the imposing of  the penalty of termination, the Appellate Division  opined that the penalty imposed was "not so disproportionate to the offense as to be shocking to one's sense of fairness".

The text of Appellate Division, Second Department, is set out below:

Matter of Correra v Millwood Fire Dist.

2025 NY Slip Op 02587

Decided on April 30, 2025

Appellate Division, Second 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 on April 30, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER
BARRY E. WARHIT, JJ.

2022-06969
(Index No. 59594/22)

[*1]In the Matter of Robert Correra, petitioner,

v

Millwood Fire District, et al., respondents.

Gould & Berg, LLP, White Plains, NY (Jane Bilus Gould of counsel), for petitioner.

Pinsky Law Group, LLC, Syracuse, NY (Bradley M. Pinsky of counsel), for respondents.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Millwood Fire District dated January 17, 2022. The determination adopted the findings of a hearing officer dated January 5, 2022, made after a hearing pursuant to Civil Service Law § 75, that the petitioner was guilty of a charge of misconduct and a charge of misconduct and insubordination, and terminated the petitioner's membership as a volunteer firefighter with the Millwood Fire District.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner served as a volunteer firefighter with the respondent Millwood Fire District (hereinafter the District) beginning in 2003. Following a physical examination in 2020, which was required by the District to clear members for operational positions, the District suspended the petitioner's operational privileges and charged him with misconduct. The District alleged, inter alia, that the petitioner provided false information regarding his failure to disclose his designation by the Workers' Compensation Board as "permanently, partially disabled" on a form in connection with the 2020 physical examination. A disciplinary hearing pursuant to Civil Service Law § 75 was held on October 28, 2021. At the hearing, the District brought a second charge against the petitioner, alleging misconduct and insubordination, for improperly obtaining a physical examination while his operational privileges were suspended and for failing to provide a medical provider with the current job performance requirements for a firefighter.

In a report and recommendation dated January 5, 2022, the hearing officer found the petitioner guilty of both charges and recommended termination of the petitioner's membership as a volunteer firefighter with the District. On January 17, 2022, the District adopted the findings of the hearing officer and terminated the petitioner's membership. The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the District's determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7803(g).

Generally, "judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Lipani v New York State Div. of Human Rights, 56 [*2]AD3d 560, 560; see CPLR 7803[4]). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Ciganik v New York City Off. of Admin. Trials & Hearings, 224 AD3d 898, 899). Here, substantial evidence in the record supports the determination that the petitioner was guilty of misconduct and insubordination (see Matter of Guarnieri v County of Rockland, 226 AD3d 1018, 1019-1020; Matter of Sekul v City of Poughkeepsie, 195 AD3d 622, 625). The record demonstrates, among other things, that the petitioner knowingly provided false answers on his medical questionnaire regarding his failure to disclose his designation as permanently, partially disabled by the Workers' Compensation Board and improperly obtained a medical examination when his operational privileges were suspended and failed to provide the medical provider with the current job performance requirements for a firefighter.

In light of the fact that the petitioner, inter alia, knowingly made false statements on a medical questionnaire regarding his physical condition, which, under the circumstances, demonstrated a disregard for the safety of other firefighters and the general public, the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Rutkunas v Stout, 8 NY3d 897, 898; Matter of Kurot v East Rockaway Fire Dept., 61 AD3d 760, 761; Matter of Loscuito v Scoppetta, 50 AD3d 905, 906).

The petitioner's remaining contentions are without merit.

Accordingly, we confirm the determination, deny the petition, and dismiss the proceeding on the merits.

DILLON, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Declining to pursue a grievance submitted by an individual in the relevant collective bargaining unit

In Flowers v District Council 37, 2025 NY Slip Opinion 02720, the Appellate Division, First Department, opined that an employee organization's decision not to pursue a grievance submitted by an individual in the collective bargaining unit it represents as the employee organization's "mere refusal ... to proceed with [the] grievance does not in itself establish a breach of the duty of fair representation".

The Appellate Division's decision is set out below.  

Flowers v District Council 37

2025 NY Slip Op 02720

Decided on May 06, 2025

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 06, 2025
Before: Webber, J.P., Scarpulla, Mendez, Rodriguez, Pitt-Burke, JJ.

Index No. 161683/13|Appeal No. 4284|Case No. 2023-05339|

[*1]Swayne Flowers, Plaintiff-Appellant,

v

District Council 37, et al., Defendants-Respondents.

Law Offices of Sandra D. Parker, New York (Sandra D. Parker of counsel), for appellant.

Robin Roach, New York (Terry Buck of counsel), for District Council 37, AFSCME, AFL-CIO, respondent.

Muriel Goode-Trufant, Corporation Counsel, New York (Melanie T. West of counsel), for New York City Health + Hospitals Corporation, respondent.

Order, Supreme Court, New York County (Judy H. Kim, J.), entered September 26, 2023, which granted the motions of defendants District Council 37 AFSCME, AFL-CIO (DC 37) and New York City Health and Hospitals Corporation (H+H) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly dismissed plaintiff's claims against DC 37, an unincorporated association, because plaintiff failed to plead and prove that the union's "entire membership authorized and later ratified [the union's] actions," as required by the Martin rule (Dowlah v American Arbitration Assn., 221 AD3d 426, 427 [1st Dept 2023], lv denied 41 NY3d 910 [2024]; see Palladino v CNY Centro, Inc., 23 NY3d 140, 146 [2014]; Martin v Curran, 303 NY 276, 280 [1951];General Associations Law § 13). Plaintiff failed to raise an issue of fact as to DC 37's unincorporated status, which was not a matter solely within the union's knowledge.

DC 37 did not waive its right to assert the Martin rule at summary judgment by failing to raise it as an affirmative defense. The Martin rule establishes "pleading and evidence requirements" for plaintiff to satisfy to "maintain[] [this] action" (Salemeh v Toussaint, 25 AD3d 411, 411 [1st Dept 2006]). DC 37's asserted defense that the "[c]omplaint fails to state a claim against [DC 37] upon which relief may be granted" encompassed DC 37's later argument that plaintiff failed to meet his burdens, including under the Martin rule (see Morton v Mulgrew, 144 AD3d 447, 448 [1st Dept 2016]; Salemeh, 25 AD3d at 411-412).

The court also properly dismissed plaintiff's breach of contract claim against his employer, H+H, because his employment was subject to a collective bargaining agreement (CBA) that contained a grievance procedure. "[O]nly when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied sub nom. Margolin v Board of Educ., Commack Union Free Sch. Dist., 485 US 1034 [1988]).

Plaintiff failed to raise an issue of fact as to DC 37's fair representation of him. Evidence that plaintiff's union representative promised to work on plaintiff's complaints but then ignored his communications and failed to attend meetings does not suggest that the union's "activity . . . was deliberately invidious, arbitrary or founded in bad faith" (Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998] [internal quotation marks omitted]). The president of plaintiff's local expressly notified plaintiff of the union's decision not to pursue his grievance, and its "mere refusal . . . to proceed with [his] grievance does not in itself establish a breach of the duty of fair representation" (id. at 359). The CBA provision permitting plaintiff to pursue grievances on his own, as well as his deposition testimony [*2]that he had previously done so, undermine his assertion that he was never made aware that he had that right.

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

ENTERED: May 6, 2025

New York State Comptroller Thomas P. DiNapoli Releases Audits

 On April 30, 2025, New York State Comptroller Thomas P. DiNapoli announced the following audits of state departments and agencies have been issued.

Click on the text highlighted in color to access the complete audit

Department of Motor Vehicles – Language Access Services (Follow-Up) (2024-F-33)

New York State Executive Law expanded the State’s language access policy requiring translation of vital documents into the 12 most common non-English languages and Executive agencies to publish a Language Access Plan (Plan) to ensure meaningful access to services for Limited English Proficiency New Yorkers. The Department of Motor Vehicles (DMV), one of the agencies required to develop and follow a Plan, operates 31 public-facing offices and 100 public-facing office locations operated by the County Clerks (County DMVs). A prior audit, issued in October 2023, found that some offices were not using Language Line for interpretation services, as required by the Plan. Auditors also determined that, due to gaps in the law, DMV did not have sufficient authority to enforce its language access policies at County DMVs despite these offices accounting for over 75% of the total customer-facing DMV offices. DMV officials made some progress in addressing the five recommendations in the initial audit report, implementing two and partially implementing three.

New York City Department of Transportation – Street Construction-Related Permits (Follow-Up) (2024-F-20)

The New York City Department of Transportation’s (DOT) issues 150 different types of sidewalk and roadway construction permits. A prior audit, issued in June 2022, found that DOT did not perform all required inspections, did not set a time frame for inspectors to return to reinspect after issuance of Corrective Action Requests or Notices of Immediate Corrective Action, and did not ensure that applicants complied with registration and permit application requirements. DOT officials made some progress in addressing the initial report’s nine recommendations, implementing two, partially implementing six, and not implementing one.

Metropolitan Transportation Authority – Management and Maintenance of Non-Revenue Service Vehicles (Follow-Up) (2024-F-16)

Under the Metropolitan Transportation Authority (MTA), New York City Transit (Transit) is responsible for operating the subways and most of the public bus service throughout New York City, and MTA Bus Company (MTA Bus) provides bus service in portions of the Bronx, Queens, and Brooklyn, and express routes from those boroughs to Manhattan. Transit and MTA Bus are responsible for the acquisition, maintenance, disposition, and preventive maintenance of the non-revenue service vehicles in their fleet. A prior audit, issued in January 2023, found that Transit and MTA Bus did not always adhere to their own guidance or practice to provide annual service and service based on mileage intervals as part of preventive maintenance on their vehicles. The MTA made some progress in addressing the 11 recommendations in the initial audit report, implementing four, partially implementing two, and not implementing five.

Empire State Development – Oversight of Select High-Technology Projects (Follow-Up) (2024-F-19)

Empire State Development (ESD) is the chief agency responsible for the coordination of the State’s economic development programs. ESD supports high-technology (high-tech) sectors—highly valued targets of economic development—by providing loans and grants and administering tax credit programs. A prior audit, issued in August 2020, found that, while ESD had effective practices for monitoring specific programs, it had not adequately monitored other high-tech projects within the SUNY Polytechnic and/or Buffalo Billion portfolio to ensure that taxpayer money was effectively spent and was producing the intended results. Despite millions of dollars of State funding, selected high-tech projects had yet to create the expected number of jobs. ESD officials made progress in addressing the initial report’s three recommendations, implementing one and partially implementing two.

Hudson River–Black River Regulating District – Security Over Critical Systems (Follow-Up) (2025-F-5)

The Hudson River–Black River Regulating District (HRBRRD) is a New York State public benefit corporation that regulates the flow of streams or rivers when required by public welfare. HRBRRD must adhere to the Office of Information Technology Services’ (ITS) policies, including ITS’ Information Security Policy and Acceptable Use Policy, for its IT assets and abide by Payment Card Industry Data Security Standards (PCI DSS). A prior audit, issued in January 2024, found that HRBRRD could improve in some areas to better meet PCI DSS requirements, including documenting certain policies and procedures. HRBRRD officials made significant progress in addressing the issue identified in the initial audit report, implementing the one recommendation from the initial report.