A prisoner while assigned to a work crew is not an employee

A prisoner while assigned to a work crew is not an employee
Richel v Village of Angola, Fourth Dept., 265 AD2d 864

Joseph Richel, an inmate at the Gowanda Correctional Facility, was injured in a fall from a scaffold while assigned to a work crew that was spray-painting a building owned by the Village of Angola. He sued, contending that the Village created a dangerous condition by providing unsafe and inadequate equipment in violation of Section 240(1) of the Labor Law.

The Appellate Division, Fourth Department, rejected Richel’s theory, commenting that “[a]s an inmate, [Richel] was not an employee of the Village or the State of New York when he was injured, and thus he is not an employee subject to the protection of Labor Law Section 240(1).”
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Niagara Frontier Transportation Authority (NFTA) police officers alleged to have participated in a “double dipping” scheme

Niagara Frontier Transportation Authority (NFTA) police officers alleged to have participated in a “double dipping” scheme
Source: Office of the State Comptroller

An audit report released on September 27, 2010 by State Comptroller Thomas P. DiNapoli's Division of State Government Accountability alleges that “Numerous Niagara Frontier Transportation Authority (NFTA) police officers systematically abandoned their assigned duty posts to go to work at other jobs while being paid by the authority, a practice that was condoned and participated in by high-ranking officers.”

According to the report, 11 NFTA officers practiced “double dipping” over a three-year period by “cheating the public out of a full-day’s work.” In what the report termed an “egregious” example, one NFTA officer claimed he worked 26 hours during a single day.

Division of State Government Accountability auditors found that NFTA officers worked for other employers “while being signed in for their regular scheduled shifts with the Transportation Authority.” Some of the officers, said the auditors, “signed in for overtime” with the Authority while “on the clock as security officers” with another Erie County agency.

NFTA officials were advised that the Division of State Government Accountability referred its findings to the "Office of the State Comptroller’s Division of Investigations for referral to law enforcement for possible criminal prosecution."

The Comptroller’s retirement division is following up on the audit’s findings to make certain that the officers involved “only receive credit for the service and earnings to which they are entitled.”

The Division of State Government Accountability's complete audit [Report 2010-S-26] is posted on the Internet at http://www.osc.state.ny.us/audits/allaudits/093010/10s26.pdf and includes a letter dated September 13, 2010 describing a number "enhanced internal controls" that NFTA has implemented.

N.B. The Comptroller encourages the public to help fight against fraud and abuse. Allegations of fraud, corruption and abuse of taxpayer money may be reported by calling the toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us , or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.
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CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects

CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects
Matter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U) September 20, 2010, Sup Ct, NY County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

Kathryn Blythe, a New York City schoolteacher, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking to vacate the opinion and award issued pursuant to Education Law 3020-a by Hearing Officer Arthur Riegel, Esq. The hearing officer had found Blythe guilty of certain charges filed against her* and imposed the penalty of suspension without pay until the end of the 2010-2011 school year.

Blythe argued that Riegel’s award should be vacated on the basis that he committed misconduct, bias and fraud.

Judge Kern, noting that Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511, said that such an award may be vacated only upon a showing of "misconduct, bias, excess of power or procedural defects," citing Lackow v Dept. of Education of the City of New York, 51 A.D.3d 563.

Here, said the court, “judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”

Holding that Blythe failed to provide any evidence demonstrating misconduct, bias, the exercise of "excess of power," or procedural defects, Judge Kern ruled that “Hearing Officer Riegel’s decision was rational and supported by adequate evidence.”

As to Blythe’s complaint that her due process rights were violated because the New York City Board of Education did not vote on the charges filed against her, Judge Kern ruled that her argument was “without merit” as “Education Law §2590-f( l)(c) … applicable only to the New York City school district … specifically grants community superintendents authority to appoint and discharge all employees.”

Denying Blythe’s request for relief under CPLR Article 75, Judge Kern dismissed Blythe’s petition “in its entirety.”

* Judge Kern said that "Hearing Officer Riegel based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner was excessively absent, had left her students unsupervised in the hallway and in the classroom and had violated Chancellor’s regulation A420 against corporal punishment" but had dismissed all other charges that had been filed against her.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32592.pdf
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Tape recording public meetings

Tape recording public meetings
Schuldiner v City Univ. of NY, NYS Sup. Ct., Index No. 8236/98, [Not selected for publication in the Official Reports; referred to in Perez v City University of New York, 195 Misc.2d 16]

Sometime an individual may appear at a public hearing, tape recorder in hand. May an entity subject to the Open Meetings Law prohibit observers from tape-recording a public meeting conducted by the entity?

This was one of the questions raised by Schuldiner after the College of Staten Island Association voted to prohibit observers from tape-recording two of its meetings. Barred from tape-recording at both public meetings held by the Association, Schuldiner sued.

New York State Supreme Court Justice Peter P. Cusick, citing Smith v. City University of New York, 92 NY2d 707, first pointed out that the Association was a “public body” as defined by Section 102(2) of the Public Officers Law and an “agency” as defined by Section 86(3) of that law.* Accordingly, it was subject to both the Open Meetings Law and the Freedom of Information Law.

Considering the Court of Appeals’ conclusion that an entity such as the College of Staten Island Association was a “public body” within the meaning of the Open Meetings Law, Justice Cusick decided that the Association’s blanket prohibition against the use of audio tape recordings of its public meetings violated the public policy embodied in the Public Officers Law.

Citing Mitchell v. Board of Education, 113 AD2d 924, as authority for his determination, Justice Cusick said that the Association’s votes to bar tape recordings of its February 25, 1998 and March 11, 1998 meetings also violated the State’s Open Meetings Law and declared them to be void.

Schuldiner also won an order preventing the Association from prohibiting the use of hand-held tape recorders by persons attending future meetings of the Association.

Holding that the Association’s reliance on the First Department’s ruling in Smith in 1998 to the effect that such an association was not a “public entity” as authority to bar the tape recording of its meetings was reasonable as the Court of Appeals had not yet ruled on the issue, Justice Cusick rejected Schuldiner’s request for attorney fees and costs pursuant to Public Officers Law Section 89(4)(c).

* In Smith, the Court of Appeals, reversing a 1998 ruling by the Appellate Division, First Department, held that college associations such as the College of Staten Island Association were public bodies and thus subject to the Open Meetings Law.
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Use of video tapes in evaluating disability claims

Use of video tapes in evaluating disability claims
Aprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]

If an employer suspects that an individual receiving Workers’ Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual’s activities. In the Aprea case, the court addresses the question of the right of the individual to see the video tape.

John F. Aprea sued a number of doctors. The physicians had arranged for “a videotaped surveillance” of Aprea and wanted to depose [question under oath] him before providing him with a copy of the tape. Aprea, on the other hand, demanded that he be allowed to view the tape before being deposed. The doctors contended that was necessary to question Aprea before he viewed the video tape because it showed him performing physical activities that are “inconsistent with his claims of disability.”

State Supreme Court Justice Janice Bowman pointed to a case dealing with this exact issue, DiMichel v. South Buffalo Railroad Company, 80 NY2d 184. In DiMichel, Justice Bowman said, the Court of Appeals “recognized that an order delaying discovery of films until after the plaintiff has given a deposition minimizes the potential for tailored testimony.”

Justice Bowman also observed that “subsequent to the DiMichel decision, and seemingly in response to it, the legislature amended CPLR Section 3101 by adding subdivision (1) requiring “full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, ... involving the plaintiff ... [and although] silent as to the time frame in which such disclosure is required ... [did not] seek to overrule the Court of Appeals decision in DiMichel.”

Aprea was directed to submit to a further deposition before he would be allowed to view the video tapes. After being deposed, said the court, he would be entitled to view all of the surveillance films during the surveillance.
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