Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

2014 NY Slip Op 01234, Appellate Division, Third Department

An attorney [Petitioner] provided legal services to a central school district on a part-time basis from 1969 until his retirement in 2006. Following a review of Petitioner's relationship with the school district the Comptroller determined that Petitioner was an independent contractor and not an employee and, therefore, was not entitled to membership in the New York State and Local Employees' Retirement System and thus ineligible for retirement pension benefits.

Plaintiff appealed and the Appellate Division said that “on this record, we cannot conclude that the Comptroller's determination that Petitioner was an independent contractor and not an employee of the school district was supported by substantial evidence” and annulled the Comptroller’s decision.

The Appellate Division explained that it had recently said that “[w]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship," citing Mowry v DiNapoli, 111 AD3d 1117. Rather, said the court, “such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means"

In other words, said the court, "over-all control is sufficient to establish the employee relationship where [professional] work is concerned."

Factors considered by the Appellate Division in vacating the Comptroller’s decision included:

1. Testimony by the school district's former superintendent, who worked with Petitioner for nearly four decades, that during his tenure he supervised all staff at the school district, including Petitioner and Petitioner was required to attend all regular and special meetings as part of his employment;

2. Petitioner's biweekly paycheck included withholdings for FICA, Medicare, and federal and state income taxes;

3. Petitioner received health insurance benefits and participated in a tax shelter annuity program that was available to employees of the school district;

4. Although Petitioner did not have set hours, both he and the former superintendent testified that he was available on an as-needed basis.

5.Petitioner would receive a paycheck for a pay period even if he did not perform work for the school during that period;

6. Petitioner was required to report to the Superintendent of the school district, as well as the school district's Board of Education, and his work was subject to approval by the Board;

7. Petitioner was reappointed every year at annual reorganization meetings and took an oath of office annually; and

8. Although Petitioner used his own law office and staff, the competent testimony established that Petitioner was provided with school stationary and that, on occasion, he used school facilities and resources.

In contrast, the court said that the Retirement System relied on the testimony of two employees of the Comptroller, both of whom admitted that they neither spoke with Petitioner nor his former or current supervisors and although the Retirement System also relied on information retrieved from current employees at the school district's administrative offices, none of these employees testified at the hearing.

Noting that the Retirement System failed to provide testimony from anyone with direct knowledge regarding Petitioner's engagement with the school district, the Appellate Division ruled that the Comptroller's determination was not supported by substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01234.htm
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In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

2014 NY Slip Op 01369, Appellate Division, Third Department

As the election season approaches, this decision by the Appellate Division addressing an appeal for alleged “defamation” may prove instructive to those involved in the process of electing a candidate to public office.

A candidate for election to public office [Plaintiff] sued another individual holing public office [Defendant] for defamation after Defendant place a political ad in a newspaper that Plaintiff alleged was defamatory. Defendant action following the placement of an ad in a newspaper by an alleged committee to elect Plaintiff that Defendant, in his counter-suit, contended was defamatory.

When Defendant’s motion for summary judgment* was denied by Supreme Court, Defendant appealed.

The Appellate Division dismissed Defendant’s appeal noting that “… [Defendant] essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the non-movant, [here the Plaintiff] there is adequate evidence in the record to raise a triable issue of fact regarding whether [Defendant] acted with actual malice.

The Appellate Division said that Plaintiff was a public figure and, as such, he must prove by clear and convincing evidence that the Defendant made a false statement with actual malice. The court explained that “Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including:

1. Whether the allegedly defamatory words have a precise meaning that is readily understood,

2. Whether the statement can be proven as true or false, and

3. Whether the context and surrounding circumstances would indicate that the comment is an opinion.”

The Appellate Division said that Defendant's statement included both a strong inference that Defendant “knows undisclosed facts that support his assertion” that Plaintiff engaged in "numerous unscrupulous dealings" when he previously served in an elective office and included an example that indicated possible unlawful abuse of that office.

Accordingly, the Appellate Division said that it agreed with Supreme Court that Defendant's statements were sufficiently susceptible to a defamatory meaning to avoid summary judgment.

* The Appellate Division noted that summary judgment dismissing a defamation action “may be avoided where the statement is a ‘mixed opinion' implying a basis in undisclosed fact or ‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01369.htm

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Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

2014 NY Slip Op 50158(U), Supreme Court, Queens County [Not selected for publication in the Official Reports]

In an action to recover damages for personal injuries allegedly sustained by a police officer [Plaintiff] when he fell due to an allegedly insufficient amount of space between the exercise equipment in the gym of a New City Police Department precinct [NYPD], State Supreme Court Judge Phyllis Orlikoff Flug noted that New York General Municipal Law (GML) §205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."

Judge Flug concluded that GML §205-e was not relevant in this instance and granted the City’s motion to dismiss Plaintiff’s claim.

The court noted that in his deposition Plaintiff said that the accident occurred while he was using the gym in the precinct during his lunch break and that he was not under any duty to use the gym. Thus, explained the court, “Plaintiff fails to raise a triable issue of fact in opposition [to the City’s motion and] the mere fact that he was wearing his uniform and [was] ‘on call’ at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him.”

The court also ruled in favor of the City with respect to Plaintiff's common law negligence cause of action.

Here, said Judge Flug, a defendant seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facieshowing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

The City had established that it did not create the allegedly defective condition by submitting the deposition testimony of a police officer employed in the building maintenance section of the NYPD who stated that, in his experience, “the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.”

As Plaintiff failed to raise a triable issue of fact in opposition, the court ruled that as the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50158.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli Tuesday, February 25, 2014  announced his office completed audits of:

the Town of Clarence;

the Town of Clarkson;

the Village of Monticello;

the Orleans County;

the Village of Oxford;

the Town of Reading;

the Richmond Fire District;

the Rotterdam Princetown No. 5 Fire District;

the Town of Scio;

the Town of Sheridan; and

the Snyder Fire District.

DiNapoli: Governor Cuomo’s Proposed Budget Continues Fiscal Progress

The Executive Budget continues efforts to control costs while tackling tough issues, according to a reportreleased Monday, February 24, 2014, by State Comptroller Thomas P. DiNapoli. The report also points out that details are lacking on spending changes required for balance in the coming years.

DiNapoli and Schneiderman Announce Arrest in $87K Contractor Theft

State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Friday, February 28, 2014 announced the arrestof Department of Health contractor George Dunkel for stealing more than $87,000 by padding bills to pay for hotels, education credits and other expenses.

DiNapoli Audit Finds Problems with Arts Education in NYC Schools

New York City public high school students are not getting the arts education required by state regulations, according to an auditreleased Friday, February 28, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Sales Tax Collections up $739 Million in 2013

Local sales tax collections of $14.9 billion grew by $739 million in 2013, an increase of 5.2 percent from 2012, according to a reportissued Thursday, February 27, 2014 by State Comptroller Thomas P. DiNapoli. The increase outpaced annual growth rates of 3.3 percent in 2012 and 5 percent in 2011, as well as the 15–year annual average growth of 4.5 percent.

DiNapoli: After–School Provider Misused $194,320 in Public Funds

The SCO Family of Services, a provider of extended school day programs for the State Education Department, submitted $194,320 in reimbursement claims for expenses that were unnecessary, not allowable or unrelated to its programs, according to an auditreleased Wednesday, February 26, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for January 2014

State Comptroller Thomas P. DiNapoli announced Tuesday, February 25, 2014 his office reviewed 2,126 contracts valued at $13.9 billion and approved more than 1.5 million payments worth more than $10 billion in January 2014. His office also rejected 191 contract transactions valued at $348.7 million and 1,735 payments valued at nearly $1.1 million due to fraud, waste or other improprieties.
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2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law published

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 600+ 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 1100+ 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