Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapol

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 4, 2013 [Click on text highlighted in bold to access the full report] 

Entergy Shareholders To Take Up DiNapoli Proposal On Nuclear Power Safety

New York State Comptroller Thomas P. DiNapoli Friday raised concerns with the storage of nuclear fuel at Entergy Inc.’s annual shareholder meeting in Little Rock, Ark. DiNapoli’s shareholder proposal calls for the company to implement a policy to minimize the amount of nuclear waste it stores in spent fuel pools and transfer that waste into dry cask storage.

DiNapoli: State Overtime Costs on the Rise

Overtime earnings at state agencies rose nearly 11 percent in 2012 to $529 million, escalating a trend that began in 2009, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: State Ends Fiscal Year in Solid Position But Challenges Remain

Despite unexpected costs from Superstorm Sandy and a weaker than expected economy, New York State ended state fiscal year 2012–13 in a stable cash position compared to recent years, according to an end of the year report released Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: St. Lawrence County Needs Long–Range Financial Plan

St. Lawrence County is coping with cash flow difficulties and a sharp decline in surplus funds, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. The audit notes that the county’s weakening fiscal health has resulted in program cuts, tax increases and a potential operating deficit.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits:

the Village of Dresden;

the Village of Hempstead;

the Village of Middleburgh;

the Town of Newfield;

the Town of Pulteney; and

the Village of Whitney Point.

Comptroller DiNapoli School Releases Audits

the Campbell–Savona Central School District; and,

the Maine Endwell Central School District.

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

On May 2, 2013 Governor Andrew M. Cuomo announced that he has appointed Catherine Leahy Scott to serve as the Inspector General of New York State. Ms. Scott has been serving as the Acting Inspector General since February 2013.

While Ms. Scott served as Acting Inspector General, the New York State Inspector General’s Office has had numerous significant investigations, findings and reports, including:

• The investigation of a state employee for stealing nearly one million dollars in federal government funds that were intended to be used by New York State to provide rent subsidies for low income families. This investigation resulted in the federal prosecution and conviction of this state employee.

• The investigation of improper lab practices in the Monroe County Public Safety Laboratory, which involved the destruction of key evidence in criminal cases in that region.

• An investigation which led to the indictment of the director of a Bronx not-for-profit corporation for bribery. The Inspector General’s investigation revealed the director received thousands of dollars in home improvements from contractors with whom his not-for-profit was doing state business, and who received government-funded renovation contracts intended to assist low and middle income residents.

• An investigation that found mismanagement, faulty procurement practices and security lapses at the New York State Fair. The investigation resulted in sweeping changes at the State Fair.

• In 2013 Ms. Scott trained the heads of all Executive branch agencies and authorities, as well as their chief counsels and ethics officers. Her statewide presentations provided uniform standards to the Executive branch, including codes of conduct and best practices to ensure integrity and the efficient operation of state government.

 

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

A tenured New York City teacher challenged her termination following a disciplinary arbitration hearing. Supreme Court dismissed her Article 75 petition and confirmed the New York City’s cross motion to confirm the arbitration award.

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The decision notes that “Adequate evidence in the record supported the Hearing Officer's determination” that the teacher was guilty of multiple specifications charging her with failure to follow procedures and carry out normal duties, and incompetent and inefficient service during three school years.

Further, said the court, evidence in the record showed that the teacher was either unwilling or unable to implement suggestions and constructive criticism of her ineffective teaching methods.

Quoting the Pell Doctrine [Pell v Board of Education, 34 NY2d 222], the Appellate Division said that under the circumstances the penalty of termination “does not shock our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03035.htm

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

New York City Office of Administrative Trials and Hearings,OATH Index No 911/13

The New York City Administration for Children’s Services filed eight disciplinary charges, alleging, among other acts of misconduct, that a Juvenile Counselor employed by Children's Services failed to immediately investigate, report, and document a reported incident of alleged child abuse at a juvenile detention center and then later failed to cooperate fully in an investigation of the matter.

The employee failed to appear at the hearing as scheduled. His attorney, however, did appear at the hearing and stated that she had made numerous attempts to contact the employee by Federal Express, by mail, and by telephone, but was unsuccessful. The attorney provided OATH Administrative Law Judge Ingrid M. Addison with proof that she had notified the employee of the hearing date and had notified the employee that she might withdraw representation if she did not hear from him.

The employee’s attorney, based on the employee’s failure to communicate with her, asked to be relieved as counsel pursuant to §1-12(a) of OATH’s Rules of Practice.*

Judge Addison granted the attorney's motion because the employee’s failure to communicate with her rendered her representation of the individual unreasonably difficult and because the ALJ could foresee no “material adverse effect on the interest of [the employee]."

The ALJ then proceed to hold the disciplinary hearing in absentia** and found that: Children’s Services 

[1] Children’s Services had proven seven of its eight allegations;

[2] That there was undisputed evidence of the employee’s misconduct; and 

[3] That there was no mitigating circumstance for the employee’s failure to perform his duty..

Children’s Services had requested a 45-day suspension without pay. Judge Addison agreed that this was an appropriate penalty under the circumstances and recommended that the employee be suspended without pay for forty-five days.

* §1-12(a), Chapter 1, Subchapter B, of OATH’s Rules of Practice provides as follows: An attorney who has filed a notice of appearance shall not withdraw from representation without the permission of the administrative law judge, on application. Withdrawals shall not be granted unless upon consent of the client or when other cause exists as delineated in the applicable provisions of the Code of Professional Responsibility.

** The matter proceeded as an inquest after the Children’s Services presented its proof of service of the notice of the hearing by certified and regular mail addressed to the employee’s address on file with Children’s Services. The certified mailing to the employee was returned by the United States Postal Service marked “unclaimed.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-911.pdf