Recent decisions reported by the New York City Office of Administrative Trials and Hearings

Recent decisions reported by the New York City Office of Administrative Trials and Hearings [OATH]

Issued during January 2014 [Click on text highlighted in color to access the text of the decision.]

OATH Administrative Law Judges making findings of fact and recommendations as to the disposition of the matter.

 

Correction officer was arrested as a result of a drug bust operation. After criminal charges against the officer were dismissed, Department of Correction (DOC) brought a disciplinary proceeding against the officer accusing him of knowingly driving a family friend to a drug transaction and subsequently possessing cocaine in his car. ALJ Kevin F. Casey found that DOC failed to prove that the officer knew he was driving a family friend to purchase drugs or that the officer knowingly possessed the drugs later found in his car. ALJ Casey recommended the dismissal of the charge.

OATH Index No. 265/14 [Comm’r Decision - pending] http://archive.citylaw.org/oath/13_Cases/14-265.pdf

Correction officer admitted to using excessive force by stomping on an inmate's head after the inmate had been subdued with his face to the floor and his hands cuffed behind his back. Respondent's actions caused the inmate to sustain lacerations to his chin and loss of a front tooth. As mitigation, respondent asserted that on his way to work, he learned that his best friend had been murdered, and that this news upset his equilibrium. Finding that neither disruptive behavior by the subdued inmate nor the murder of respondent's friend, if true, was mitigation for respondent's conduct, ALJ Ingrid M. Addison recommended termination of his employment.

OATH Index No. 156/14, Comm'r Decision - adopted, http://archive.citylaw.org/oath/13_Cases/14-156.pdf

The Department of Environmental Protection brought disciplinary charges against a project manager for working longer than his 7-hour shift, reporting late to a storehouse, and falsely stating that he made a vehicle damage report. ALJ John B. Spooner found that respondent worked longer than a 7-hour day and recommended a one-day suspension. ALJ Spooner dismissed the other charges, noting that petitioner’s counsel displayed some animus toward respondent and his efforts to defend himself. ALJ Spooner noted that discipline of one of respondent's witnesses for appearing early at the tribunal on the day of her testimony was “extraordinary” and may have been intended to punish the witness or to discourage her from testifying.

OATH Index No. 181/14, Comm’r Decision - rejected in part, (adopting sustained charge, rejecting dismissal of other charges, and increasing penalty to 30-day suspension without pay). http://archive.citylaw.org/oath/14_Cases/14-181.pdf
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Apportioning liability for workers’ compensation benefits among the claimant’s various employers

Apportioning liability for workers’ compensation benefits among the claimant’s various employers
2013 NY Slip Op 07244, Appellate Division, Third Department

In some situations it becomes necessary for the Workers’ Compensation Board to consider the issue of apportionment of liability among a claimant's prior employers in accordance with Workers' Compensation Law §44.*.

The employee [Employee] began working for the Town in 2002. Prior to that, she had performed secretarial services for various employers, since 1966. In 2004 Employee sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome.

In 2007, Employee filed a claim for workers' compensation benefits. Her claim was initially established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007 and was subsequently amended to include bilateral elbows and right carpal tunnel syndrome.

Employee was awarded a 25% schedule loss of use of the left hand in 2010 and the Town workers' compensation carrier sought apportionment of responsibility for liability of the claim with claimant's two most recent prior employers, covering the years between 1987 and 2002.

A Workers' Compensation Law Judge denied the carrier's request, finding no medical evidence that Employee had contracted her condition during her prior employment, and the Workers' Compensation Board affirmed upon administrative review. The Town and its carrier appealed.

The Appellate Division sustained the Board ruling, explaining that "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant 'contracted an occupational disease while employed by that employer.'"

In support of the Board’s determination, the court said that Employee had testified that she had experienced some symptoms of pain in her wrists during her previous employments. but did not seek or receive medical treatment for her condition until 2004. Although an independent medical examiner opined that "there appears to be a cause for apportionment" and recommended that the claim should be apportioned 75% to the Town and 25% to Employee's previous employers, the medical examiner [1] “did not opine as to when [Employee] contracted her condition” and [2] “offered no objective medical proof in support of his findings.”

* §44. Liability of employer. The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae [sic - any abnormal condition that follows], was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07244.htm

An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator

An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator

Westchester County Corr. Officers Benevolent Assn., Inc. v Cheverko, 2013 NY Slip Op 08451, Appellate Division, Second Department

The Westchester County Corr. Officers Benevolent Assn., Inc.filed a CPLR Article 75 petition seeking to confirm three arbitration awards in which the arbitrator ruled that three individuals [Officers] were entitled to benefits pursuant to General Municipal Law §207-c.*

Westchester County Department of Corrections Commissioner Kevin M. Cheverko appealed Supreme Court denial of his motion to vacate those awards.

The Appellate Division granted the Commissioner Cheverko’s appeal challenging the Supreme Court’s decision, explaining that an arbitration award is indefinite or nonfinal for purposes of CPLR §7511 and subject to vacatur "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy."

In this instance, explained the court, the arbitrator’s awards providing the three individuals with benefits pursuant to General Municipal Law §207-c were indefinite or nonfinal for purposes of CPLR§7511 “as they did not address whether each Officer sustained a disability.”

Reversing the order “insofar as appealed from,” the Appellate Division said that the matter was to be remitted to the arbitrator “for further proceedings and a determination as to whether each officer sustained a disability.”

* General Municipal Law §207-c provides for the payment of salary, wages, medical and hospital expenses of law enforcement personnel suffering injuries or illness incurred in the performance of their duties.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08451.htm

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General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014

Click on text highlighted in color to access the full report

DiNapoli: 87 School Districts in Fiscal Stress

Eighty–seven school districts, 13 percent of school districts statewide, have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 674 school districts with fiscal years ending on June 30, 2013.

DiNapoli: Buffalo’s Financial Condition Improves

The city of Buffalo’s finances have stabilized in recent years because of careful budget planning, the oversight of a fiscal control board and increased state aid, according to a report issued Monday, January 13, 2014 by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.

DiNapoli: School District Revenue Growth Slows

New York’s school districts have faced major fluctuations in their federal and state aid over the last decade and revenue growth was nearly flat the last three years, averaging only 1.3 percent, according to a reportissued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of DiNapoli’s fiscal stress initiative which is focusing greater attention on the issues that contribute to the financial pressures on local governments and school districts across the state.

DiNapoli and Investor Group Reach Shareholder Agreement with FirstEnergy

FirstEnergy, an Ohio–based energy producer, has agreed to produce a comprehensive report on the company’s plan to reduce greenhouse gas emissions, New York State Comptroller Thomas P. DiNapoli announced January 15, 2014. As a result, a shareholder resolutionco–filed by DiNapoli, Connecticut Treasurer Denise L. Nappier on behalf of the Connecticut Retirement Plans and Trust Funds, and investment group As You Sow has been withdrawn.

DiNapoli: Some Taxpayer Check–Off Donations Not Utilized for Worthy Causes

New Yorkers have contributed more than $51 million for worthy causes through check–offs on their personal income tax forms, but these funds often sit unused, according to a report issued January 15, 2014 by New York State Comptroller Thomas P. DiNapoli. More than $14 million has accumulated in six check–off funds, with nearly 90 percent of that for health–related causes including breast cancer, prostate cancer and Alzheimer’s disease.

DiNapoli: State Tax Receipts Below Projections Three Quarters Through Fiscal Year

State tax receipts for the first three quarters of the fiscal year were $534 million below the latest Financial Plan projections, according to a quarterly report on state finances released Friday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of

the Hampton Bays Union Free School District;

the Harpursville Central School District;

the Roosevelt Children’s Academy Charter School; and

the South Colonie Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of:

the Afton Hose Company Emergency Squad;

the Town of Hampton;

the Town of Hopewell;

the Pember Library and Museum;

the City of Rye; Town of Sullivan; and

the Washington County Sheriff’s Department.

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced on January 17, 2014 the following audits have been issued:

the Research Foundation of the State University of New York;

the Port Authority of New York and New Jersey;

the New York State Health Insurance Program: Empire BlueCross and BlueShield;

the Department of Health;

the Office of Court Administration; and

the Department of Health.

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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

2013 NY Slip Op 08499, Appellate Division, Third Department

The girl friend [GF] of a town police officer [Officer] went to a pub with her girlfriend to purchase beer. GF was involved in a confrontation with the plaintiff that the Appellate Division said the substance of which is subject to considerable dispute. GF and her girlfriend left the bar and returned to Officer's residence. After listening to GF's version of what allegedly transpired at the pub, Officer, accompanied by GF, drove to the pub in GF's car and confronted Plaintiff, in the course of which confrontation Plaintiff suffered various injuries, including a fractured arm and a broken wrist.*

Plaintiff sued Officer and the Town contending, among other things, that the Town was vicariously liable for Officer's actions. The Town moved for summary judgment to dismiss the complaint against it. Supreme Court, finding that Officer was not acting within the scope of his employment at the time of the incident but, rather, was at the pub "as a ticked off boyfriend upset about conduct directed at his girlfriend by Plaintiff," granted the Town’s motion.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that "The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Accordingly, "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment."

Citing Campos v City of New York, 32 AD3 287, leave to appeal denied 8 NY3d 816; appeal dismissed 9 NY3d 593, the Appellate Division said that "[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest."

Officer, said the court, by his own admission, was not on duty when he went to the pub and said to Plaintiff "I'm not here as a cop" and when pressed as to his reasons for confronting Plaintiff, Officer acknowledged that he only wanted "to see what [Plaintiff's] side of . . . the story was," and admitted that he was not there to "officially" investigate the alleged assault.

Such proof, said the Appellate Division was, in its our view, was more than sufficient to discharge the Town's initial burden on its motion for summary judgment.

As Plaintiff failed to present sufficient admissible proof to raise a question of fact as to whether Officer was acting within the scope of his employment at the time of the altercation with him, the court said that the Town was entitled to summary judgment dismissing his vicarious liability claims against it.

Addressing a collateral issue, Plaintiff allegation that the Town negligently hired, trained and/or supervised Officer, the Appellate Division said that "To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."

Although Officer had been convicted of assault in the third degree years earlier, one of the Town's representatives testified that the Town was aware of and discussed this incident with Officer prior to hiring him and that they thereafter did not receive any complaints regarding Officer's behavior. The Appellate Division ruled that “Under these circumstances, Officer's prior conviction — standing alone — was insufficient to put the Town on notice that he ‘was inclined toward conduct such as that which allegedly caused . . . Plaintiff's injuries.’"

* Disciplinary charges subsequently were lodged against Officer, who ultimately resigned from his position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08499.htm
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