Accidental disability retirement - determining proximate cause

Accidental disability retirement - determining proximate cause
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830

City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.

According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.

The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.

The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.

The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.

In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.

While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.

Using the word “should” in a policy memorandum’s means it is not mandatory

Using the word “should” in a policy memorandum’s means it is not mandatory
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)

The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.

The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.

The Circuit Court of Appeals affirmed Judge Platt’s ruling.

Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”

The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.

The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.

In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”

In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department

§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:

1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or

2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].

New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.

Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*

The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.

Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.

* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Meagher v Safir, 272 AD2d 114

One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*

Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.

The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.

The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**

* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.

** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.