Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department

 
Board of Trustees of Police Pension Fund of Police Dept. of City of New York, by a tie vote, rejected Jean Lang’s application for accidental disability retirement benefits.

Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and the Appellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrate as a matter of law that her injury was the result of an accident, i.e., a sudden, unexpected, out of the ordinary event, rather than a misstep during the routine performance of her job.”

According to the decision, Lang was injured when she tripped over computer wires extending across the threshold of the doorway between two rooms. In a statement made contemporaneously with the accident, Lang indicated that the wires were "exposed."

Two years later, however, Lang submitted a statement indicating that the wires had initially been secured to the floor with duct tape and that the tape was removed on the day she fell.

The Appellate Division held that the Pension Fund was entitled to credit Lang's contemporaneous account and reject her more recent statement that the condition of the wires changed on the day of the accident, explaining that the Fund “reasonably inferred that, since the wires had been in place for several months before [Lang’s] fall, she must have been aware of them and routinely stepped over them.

Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.

John K. Slagle, a firefighter, was injured while responding to a fire. According to the decision, the incident report and application for accidental disability retirement filed by Slagle both indicated that as he stepped over a downed chain link fence his boot caught on the fallen fence, causing him to fall.

Slagle, however, testified at his disability hearing before the Retirement System that he was unaware of the fallen fence because it was hidden in tall grass and weeds. Significantly, said the court, no mention of "tall grass and weeds" was noted in either Slagle's incident report or his application for accidental disability retirement benefits.

Slagle argued that his encounter with the fence and his subsequent fall constituted an accident since it was "sudden and unexpected." The Comptroller, however, concluded that Slagle's injury was the result of a misstep as he attempted to step over the fallen fence and that, therefore, he did not sustain an accident within the meaning of the Retirement and Social Security Law. The Appellate Division sustained the Comptroller's determination.

The court said that assuming that Slagle's testimony that he was unaware of the fence was sufficient to demonstrate an accident, "neither the accident report filed by [Slagle] shortly after the injury nor his application for benefits contained any reference to tall grass, weeds or the hidden nature of the fallen fence."

The court found that incident report and disability retirement application form submitted by Slagle provided the substantial evidence necessary to support the Comptroller's finding that "Slagle's fall was caused by his misstep or miscalculation in attempting to step over the fallen fence while engaged in the performance of his ordinary employment duties."

Thus, said the court, "there is no basis to disturb the Comptroller's conclusion that [Slagle] did not sustain an accident."

Clearly including references to "tall grass and weeds" hiding the downed fence might not have guaranteed approval of Slagle's application for accidental disability retirement benefits. However, the information he initially supplied in the incident report and in his application for benefits, despite his somewhat different testimony at the hearing, proved sufficient to allow the Comptroller to base his decision solely on the information contained in the incident report and Slagle's disability retirement application form.

The Lang decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.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 and other disability retirement issues 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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Contempt proceeding used to enforce a court order directing reinstatement

Contempt proceeding used to enforce a court order directing reinstatement
Angel Nunez v City of New York, 43 AD3d 808

Angel Nunez obtained a court order directing his reinstatement to his former position, or a comparable position, with the New York City Department of Sanitation, together with back pay and benefits [City of New York v New York State Div. of Human Rights, 229 AD2d 307, leave to appeal denied, 89 NY2d 801]. Sanitation, however, neither reinstated Nunez to his former position nor to an equivalent position.

Nunez then petitioned the court to compel his reinstatement. Supreme Court dismissed his petition to have the Department to reinstate him, ruling that he delayed too long in bringing his action and thus Nunez was guilty of laches 

The Appellate Division reverse the lower court’s ruling, noting that although Nunez, an attorney, had waited 15 months before bringing the matter to the attention of the court rather than seeking earlier judicial intervention, both he and the Department had contributed to the delay.

The Appellate Division said that Nunez’s recourse was to bring a contempt proceeding when the Department failed to comply with the order of the court. It said that it “was futile to insist that [Nunez] bring a new complaint with the Division of Human Rights before seeking enforcement.” It then converted Nunez’s action into a “contempt proceeding” and remanded the case to Supreme Court for a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07072.htm

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy
County of Westchester v Edward Doyle, Jr., 43 AD3d 1055

Westchester County filed a CPLR Article 75 petition in an effort to vacate an arbitration award holding that one of employees had been working “out-of-title” on the grounds that the award constituted a “violation of public policy.” The Appellate Division disagreed, ruling that “public policy was not violated here merely because the determination that the respondent William Leverance was working out-of-title was made by an arbitrator.”

Another issue involved in this action: what is the date from which interest on the addition compensation due the employee is payable?

The Appellate Division said, and the employee conceded, interest was to be paid from the date of the arbitration award, rather than from the date from which the employee was entitled to compensation for his performing out-of-title work.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06874.htm

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d 1114

The Court of Appeals will hear Shenendehowa Central School District’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testing positive for marihuana in a random drug test.

Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicus curiae on the appeal were also granted by the court.

NYPPL summary the Appellate Division’s ruling in this action is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Shenendehowa

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, Appellate Division, Fourth Department

The City of Rochester determined that one of its employees was guilty of the disciplinary charges filed against him and terminating him from his employment. Supreme court dismissed the individual's Article 78 petition challenging his dismissal and the Appellate Division affirmed the lower court’s ruling.

One of the arguments advanced by the individual in his petition was that “the determination is not supported by substantial evidence because the evidence presented was hearsay.“*

The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment, ruled that the evidence was relevant and probative on the charges that the individual had worked at that outside employment while he was on sick leave, or other leave from his employment with the City, and receiving certain benefits.

The court explained that hearsay is admissible in administrative proceedings "and if sufficiently relevant and probative may constitute substantial evidence." Accordingly, said the Appellate Division, there is no merit to the individual's contention that the determination is not supported by substantial evidence because the evidence presented was hearsay.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that it found that the appointing authorities determination as to the employees guilt was “supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

As to the penalty imposed, dismissal, the court said that it concluded that “the penalty of termination from petitioner's employment is not ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ and thus does not constitute an abuse of discretion as a matter of law,” citing Kelly v Safir, 96 NY2d 32.

* Essentially hearsay evidence is testimony given by an individual who testifies about what he or she has heard from others rather than testifies about that which he or she personally heard, knows or observed concerning a conversation, an event or a situation.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08896.htm