A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

Storman v New York City Dept. of Educ., 2012 NY Slip Op 04217, Appellate Division, First Department

Supreme Court granted, among other things, a motion to hold the New York City Department of Education (DOE) in contempt for its alleged failure to comply with a judgment.

The Appellate Division unanimously reversed the Supreme Court’s action, commenting that it was acting “In the interest of justice, we nostra sponte* [in granting] DOE leave to appeal from the contempt order … which was "made in a proceeding against a body or officer pursuant to article 78" and therefore was not appealable as of right” (see CPLR 5701[b][1]).

The court explained that Supreme Court's “judgment to remand for ‘further proceedings’ was not a ‘clear and unequivocal’ mandate, and thus DOE should not have been held in contempt for allegedly disobeying it.” The remedy, if any, said the Appellate Division “lies in seeking to clarify the … order, which will allow the court to issue a clear and unequivocal mandate.”

Considering a related aspect of the appeal, the Appellate Division noted that the administrative hearing conducted by the Chancellor's Committee "was not determinative but merely advisory" to the Chancellor and thus the "arbitrary and capricious" standard of judicial review applies, not the "substantial evidence" standard.

Accordingly, said the court, “Applying the proper standard, DOE's determination was not arbitrary and capricious, but was rationally based in the record, which included the investigator's report and the testimony of the investigator and principal at the administrative hearing,” citing Murane v Department of Education, 82 AD3d 576.

* Nostra Sponte - an action by a court undertaken on its own inherent authority.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04217.htm

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Human Resources Administration v. Power, OATH Index No. 879/12

OATH Administrative Law Judge Ingrid M. Addison sustained charges Civil Service Law §75 charges alleging that an agency employee deliberately struck his supervisor with his heavy duffel bag and continued walking without stopping even though the supervisor was pinned to the wall.

Judge Addison recommended dismissal of two charges [1] that the individual intimidated a co-worker by staring through her office window and [2] that he failed to evacuate the building as directed by building security, finding the proof insufficient to establish guilt of the misconduct alleged.

The ALJ recommended that the employee be terminated based on the charges found to have been proven in the course of the disciplinary hearing. 

The Commissioner adopted the Administrative Law Judge’s findings and recommendation, dismissing the employee from his position with the agency.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0879.pdf

Selected Rulings posted by PERB

Selected Rulings posted by PERB 

Matter of Chemung County Sheriff’s Association, Inc., Decision 44 PERB 3026, U-29007

The Board reversed a decision of an Administrative Law Judge (ALJ) that had found that the Chemung County Sheriff’s Association, Inc. (Association) violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) when it sought interest arbitration of a nonarbitrable proposal under §209.4(g) of the Act.

The Board held that the joint employer’s second amended charge, which alleged for the first time that the Association’s General Municipal Law (GML) §207-c hearing proposal was nonarbitrable under §209.4(g) of the Act, was untimely because it did not relate back to the joint employer’s original claim challenging the mandatory nature of the proposal under the Act.

Finally, the Board held that the Association’s GML §207-c hearing proposal to permit a hearing officer to issue a binding decision, subject to review by the courts under CPLR Article 78, was mandatory under City of Watertown v. New York State Public Employment Relations Board, 97 NY2d 73, [33 PERB 7007].

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Weiner v City of New York, 2012 NY Slip Op 04207, Court of Appeals

Mark Weiner was employed by the New York City Fire Department as an Emergency Medical Technician. Injured in the course of his performing his duties, he applied for, and received, workers' compensation benefits from his employer - the City of New York.

Weiner subsequently sued the City and the New York City Parks and Recreation Department alleging both “common law negligence and a cause of action under General Municipal Law §205-a.” According to Weiner, the City-maintained boardwalk was poorly illuminated, resulting in his being injured.

The Appellate Division, reversing a Supreme Court ruling to the contrary, held that Weiner's action was barred by his receipt of workers' compensation benefits and that he could not sue the City “in its landlord role.”

The Court of Appeals, citing Gonzales v Armac Indus., 81 NY2d 1, sustained the Appellate Division’s decision, commenting that worker’s compensation benefits are "[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment."

The Court explained that "In exchange for the security of knowing that fixed benefits will be paid without the need to resort to expensive and sometimes risky litigation, … the employee has been asked to pay a price in the form of the loss of his [or her] common-law right to sue his [or her] employer in tort and perhaps to enjoy a more substantial recovery through a jury award."


In the words of the court: “Weiner's principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law §205-e (pertaining to police officers). Section 205-e contains the same statement found in §205-a that the cause of action created by the statute exists "[i]n addition to any other right of action or recovery under any other provision of law" (General Municipal Law §205-e [1]).


However, said the Court, in addition §205-e explicitly provides that "nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law."

Although Weiner argued that the omission of this §205-e language concerning workers' compensation law in §205-a was deliberate, the Court said that it disagreed, holding that “Had the Legislature intended to give firefighters, but not police officers, the right to sue as well as receive workers' compensation benefits, this distinction, we are certain, would have been evident in the legislative history.” Rather, concluded the court, “it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under §205-a.”*

Noting that it was not addressing the question of whether emergency medical technicians who are employed by fire departments and are not recipients of workers' compensation benefits are entitled to the right of action provided by §205-a, or whether the right of action is limited to firefighters, the Court noted that it has “long refused to condone the circumvention of the Workers' Compensation scheme by means of a theory that would allow an employer to be sued in its capacity as property owner.”

Here, said the court, “[a]n employer remains an employer in [its] relations with [its] employees as to all matters arising from and connected with their employment" and Weiner's injuries arose from and were connected with his employment as an emergency medical technician.


* See the Governor's "Approval Memorandum" in the "bill jacket" of Chapter 703 of the Laws of 1996.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04207.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

OATH Index No. 802/12

A sanitation worker was charged with committing misconduct for being absent without leave (“AWOL”).

The worker, however, established that he was absent on the days charged because voices told him he would be killed if he attended in the course of the disciplinary hearing. The worker also submitted medical records documenting a history of his mental disability.*

Because intent is a pre-requisite for a finding of misconduct, OATH Administrative Law Judge Faye Lewis recommended dismissal of the charges.

In the words of Judge Lewis, “Where respondent’s disability caused him to have a sincere belief that he would be killed if he went to work, he cannot be blamed for not doing so. Respondent lacked the intent that is a prerequisite under section 75 of the Civil Service Law for a finding of misconduct. Therefore, his absence without authorization did not constitute misconduct.”

The ALJ also noted that the agency is not precluded from seeking to place the employee on disability leave [see Civil Service Law §72.

* In an administrative disciplinary action the accused “may defend against the charges by showing that he [or she] lacked the requisite intent to commit the charged misconduct because he was mentally incapacitated. Such a defense is in the nature of an affirmative defense which respondent bears the burden of proving by a preponderance of the evidence.” Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Bruce, OATH Index No. 138/10

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0802.pdf