The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision

The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision
2013 NY Slip Op 08026, Appellate Division, First Department

The contingent beneficiary [Petitioner] of a member of the New York City Teachers’ Retirement System was advised that she would not receive benefits under the deceased member's qualified pension plan (QPP) because he died prior to his date of retirement and thus the deceased member’s designated in-service beneficiary was entitled to the benefits.

Petitioner then filed an Article 78 petition challenging the Retirement System’s decision, seeking a judgment that she was entitled to either a determination of her rights as contingent beneficiary under the decedent’s qualified pension plan (QPP) or an order   directing the System to pay her benefits as a contingent beneficiary of the deceased member’s QPP.

Supreme Court dismissed her petition as untimely, finding that Petitioner failed to file a proceeding to challenge that determination within the requisite four-month period. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that “The parties agree that the four month statute of limitations controls this action, which challenges an agency determination” and that Petitioner failed to file her action within that four-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08026.htm
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A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service

A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service
2014 NY Slip Op 00721, Appellate Division, Third Department

§527(1) of the Labor Law sets out the qualifications that an Unemployment Insurace claimant must satisfy in order to file a valid original claim entitling him or her to receive unemployment insurance benefits. §527(1)(d) requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period.

In this appeal the issue was whether an individual [Claimant] appointed to a position of Deputy Commissioner by the Governor who applied for unemployment insurance benefits after her term of office ended was “paid remuneration by employers liable for contributions.”

Initially the Department of Labor denied the claim, finding that Claimant, as a Deputy Commissioner, [1] held a major nontenured policymaking or advisory position while employed by the State, and [2] such service could not be used as base period employment for purposes of establishing a valid original claim for unemployment insurance benefits.

Although this determination was overruled by an Administrative Law Judge, ultimately the Unemployment Insurance Appeal Board sustained the initial determination and ruled that Claimant was not eligible to receive unemployment insurance benefits.

The Appellate Division affirmed the Appeal Board’s decision explaining that [1] Labor Law §527(1) sets out the qualifications that a claimant must meet in order to file a valid original claim entitling him or her to receive unemployment insurance benefits and [2] Labor Law §527[1][d] requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period."

The decision then points out that Labor Law §565(2)(e) provides that services rendered for a governmental entity by a person “in a major nontenured policymaking or advisory position" is not employment for the purposes of establishing eligibility for Unemployment Insurance benefits.

The issue to be resolved, said the Appellate Division, is whether the Labor Law §565(2)(e) exclusion applies with respect to Claimant employment during the applicable base period.

Finding that “… the performance standards applicable to [Claimant’s] position supported the Appeals Board’s determination that Claimant held a "major nontenured policymaking or advisory position," the Appellate Division ruled that there was a rational basis for the Board's finding that Claimant’s service during the period in question “could not be used as base period employment for purposes of establishing a valid original claim” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00721.htm
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An employer's rights under Workers' Compensation Law §11 are not extinguished merely because the injured employee is an undocumented alien

An employer's rights under Workers' Compensation Law §11 are not extinguished merely because the injured employee is an undocumented alien

New York Hosp. Med. Ctr. of Queens v Microtech Contr. Corp., 2014 NY Slip Op 00897, Court of Appeals

In Balbuena v IDR Realty, LLC, 6 NY3d 338 [2006], the Court of Appeals held that an injured employee's status as an undocumented alien does not preclude his or her recovery of lost wages in a personal injury action against a landowner under the state's Labor Law.

In deciding New York Hospital Medical Center of Queens [Hospital] v Microtech Contr. Corp., the Court of Appeals held that an employer's statutory rights under the Workers' Compensation Law are not extinguished merely because the injured employee is an undocumented alien.

Hospital sued Microtech for common-law and contractual contribution and indemnification to recover any damages it had incurred in the course of litigation in which Microtech’s injured employees alleged their injuries resulted from Hospital’s alleged violations of the Labor Law.  

Supreme Court had granted the employees summary judgment on liability on their causes of action grounded in Labor Law §§240 (1) and 241 (6). Hospital's attorney said that Hospital and the employees had entered into “a high-low agreement”* at the damages trial that followed and, after the verdict, the judgment was paid in keeping with this arrangement. The hospital then sued Microtech seeking indemnification for the damages it suffered.

The Court of Appeals, affirming the Appellate Division’s decision, held that Microtech’s alleged violations of the Immigration Reform and Control Act (8 USC §1324a) claimed by the hospital did not abrogate Microtech’s protection from third-party claims available to it pursuant to §11.

In other words, the court ruled that, “under the facts and circumstances presented by this case,” an employees' immigration status does not affect his or her employer's rights under Workers' Compensation Law §11.

* A high/low agreement is “a settlement in which a defendant agrees to pay the plaintiff a minimum recovery amount in return for the plaintiff’s agreement to accept a maximum amount regardless of the outcome of the trial.” 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00897.htm
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Resolving ties in seniority in the event of a layoff

Resolving ties in seniority in the event of a layoff

Decisions of the Commissioner of Education, Decision 16,584

In this appeal concerning the appointment and preferred eligibility rights involving two teachers of Spanish the Commission reviewed the events leading to their respective appointments and determined that both teachers “had the same amount of full-time service in the foreign language tenure area.”

As to a school board’s resolving “ties” in seniority to determine which of two or more teachers were to be excessed, the Commissioner said that “the board may use an objective means to break the tie in determining seniority.”

In this instance the school board elected to determine which one of the two teachers to retain in service by considering their names in alphabetical order.

The Commissioner concluded that this method was “objective” and ruled that board’s decision to retain the teacher whose last name started with “A” rather than the teacher whose last name started with the letter “G” was not arbitrary and capricious.

Other means of breaking seniority ties in the event of a reduction of staff include: one teacher was "certified” in a second tenure area that “could be beneficial to the district in the future;" it would be "cost effective" to terminate the teacher having the higher rate of compensation consistent with the district's efforts to reduce its expenditures; the date of a school board's resolution appointing the individuals; the date of receipt of the application; the individual’s date of birth; a lottery system.

Although a collective bargaining agreement negotiated pursuant to the Taylor Law [Article 14 of the Civil Service Law] may provide for the determination of certain benefits based on seniority such as shift selection or priority in scheduling vacation,such provisions may not be used to defeat certain rights based on seniority set by law. For example, the rights of an individual in layoff situations in the classified service set out in §§80 and 80-a of the Civil Service Law are based on seniority which rights may not be adversely affected by the terms of a collective bargaining agreement [see City of Plattsburgh v Local 788, 108 AD2d 1045].

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16584.pdf

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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 is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for information about this electronic reference manual.

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An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

2014 NY Slip Op 00659, Appellate Division, Second Department

A former employee [Petitioner] of the New York City Transit Authority [NYCTA] filed an Article 78 action challenging [1] NYCTA terminating him without a formal hearing pursuant to Civil Service Law §75 and [2] rejecting of his request for a lump sum payment for unused leave “based on his election to retire in response to an investigation into certain timekeeping violations which he subsequently was found to have committed.”

Supreme Court, Kings County dismissed the Article 78 proceeding and the Appellate Division affirmed the lower court’s ruling.

Addressing Petitioner’s claim that he was denied due process as a result of NYCTA’s failing to provide him with a pre-termination disciplinary hearing, the Appellate Division explained that NYCTA had demonstrated that Petitioner was an employee to whom the provisions of Civil Service Law §75 did not apply as he was employed in a non-competitive class position that had been designated as confidential or policy-influencing.

§75 applies to certain persons holding permanent appointment in the Classified Service and, in pertinent part, provides that a person holding a position by permanent appointment in the non-competitive class of the classified civil service in “other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy….” *

Turning to Petitioner’s claim that NYSTA could not deny his request for a lump sum payment without first affording him a formal disciplinary hearing pursuant to Civil Service Law §75,**the Appellate Division ruled that the Authority’s action “was not improper.”

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 dismissed this branch of Petitioner’s appeal noting that NYCTA's determination denying Petitioner's request for a lump sum payment for his unused vacation credits was in accordance with its established policy and was neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness.

* See §75.l[c]

** See 4 NYCRR 23.1, which applies to employees of the State as the employer and provides for payment of leave accruals upon separation. 4 NYCRR 23.1, in pertinent part, provides that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00659.htm

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