Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Anonymous v Kelly, 2014 NY Slip Op 02141, Appellate Division, First Department

Rejection of Anonymous’ application for accidental disability retirement benefits was affirmed by Appellate Division, vacating a ruling by Supreme Court remanding the matter to the Retirement System’s Board of Trustees.

The court said that Supreme Court “incorrectly found that [Anonymous] was entitled to the presumption of General Municipal Law §207-p, thereby improperly shifting the burden of proof as to causation to the employer.

General Municipal Law §207-p provides, in pertinent part, that "any paid member of a . . . police department . . . who successfully passed a physical examination upon entry into the service of such department who contracts HIV [parenthetical omitted], tuberculosis or hepatitis, will be presumed to have contracted such disease as a natural or proximate result of an accidental injury received in the performance and discharge of his or her duties . . ., unless the contrary be provided by competent evidence."

Although Anonymous did not suffer from any of the three diseases named in the statute, Supreme Court found that his "illness was the type that the 207-p presumption was intended to cover."

However, said the Appellate Division, “the plain language of the statute makes it clear that the presumption is only applicable to the three named diseases.” Accordingly, said the court, it was Anonymous' burden to prove that his condition was caused by an accidental line-of-duty injury, not the employer’s burden to demonstrate that his condition was not caused by an accidental line-of-duty injury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02141.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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Official misconduct

Official misconduct

OATH Index Nos. 1679/13, 1680/13, 1681/13

Two job center directors and a deputy director were charged with improperly transferring cases from other job centers in order to increase their own center’s job placement statistics.

The employees admitted that they participated in the scheme but that they did so under pressure of meeting agency-wide goals. OATH Administrative Law Judge John B. Spooner found that the employees had violated agency rules.

Judge Spooner denied the employees’ motion to dismiss a portion of the charges as time-barred, finding respondents’ conduct fell within the crimes exception to the 18-month limitations period in §75 of the Civil Service Law, i.e, the employees had committed the crimes of official misconduct and computer tampering.

ALJ Spooner recommended dismissal of charges that respondents violated the Conflicts of Interest Law since there was no proof that they gained a private or personal advantage from the transfers.

As to the penalty to be imposed, the ALJ recommended termination of employees’ employment as their participation in the scheme for as long as three years “was an egregious violation of the trust placed in them as managers, as well as their fundamental responsibility as civil servants.”  

The decision is posted on the Internet at: 

http://archive.citylaw.org/oath/10_Cases/13-1679.pdf

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Former Lt. Gov. Ravitch to Address Fiscal Challenges Facing Local Governments

Former Lt. Gov. Ravitch to Address Fiscal Challenges Facing Local Governments

Former New York State Lieutenant Governor Richard Ravitch will deliver a talk on “The Fiscal Challenges Facing Local Governments” for the 2014 Edwin L. Crawford Memorial Lecture on Municipal Law, to be held at Albany Law School on Tuesday, April 22, 2014, at 4:00 p.m.

The event, hosted by the law school’s Government Law Center (GLC), will also include a book signing for Ravitch’s new book, So Much to Do: A Full Life of Business, Politics, and Confronting Fiscal Crises.

Ravitch, an attorney who served as the state’s 75th lieutenant governor from 2009 to 2010, has served as chair of the New York State Urban Development Corporation, HRH Construction Corporation, the Metropolitan Transportation Authority and Bowery Savings Bank. He has also served as co-chair of the Task Force on the State Budget Crisis, which analyzed the fiscal sustainability of six states, including New York.

The lecture is free and open to the public.

To register, or for more information, contact agunn@albanylaw.eduor telephone 518-445-2329.

The GLC established the Edwin L. Crawford Memorial Lecture on Municipal Law in 1996 to honor the memory of Edwin L. Crawford, former executive director of the New York State Association of Counties. The program strives to educate and promote dialog on important and timely issues affecting local governments.

The Crawford Lecture was originally endowed with a generous grant from Saratoga Associates. This year’s program is also being co-sponsored by the New York State Association of Counties, the Association of Towns of the State of New York, and the New York State Conference of Mayors.
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Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

OATH Index No. 876/14

The employer moved to preclude the employee from offering a defense to disciplinary charges based upon employee’s purported unresponsive answers to interrogatories.

OATH Administrative Law Judge Faye Lewis denied the employer’s motion explaining that interrogatories are an extraordinary discovery device, permissible only upon application for good cause shown.*

Under OATH’s rules of practice, the failure to comply with a discovery order may result in sanctions, including preclusion of evidence. Here, however, Judge Lewis found that the employee did not fail to comply with a discovery order. Rather, said the ALJ, the employee voluntarily answered the interrogatories, albeit not to employer’s satisfaction.

* Although Civil Service Law Section §75 does not provide for discovery in connection with a disciplinary hearing, Education Law §3020-a provides for demanding a “bill of particulars”. A contract disciplinary procedure negotiated pursuant to the Taylor Law may provide for “discovery.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-876md.pdf
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Nonresident attorney's right to practice law in New York State

Nonresident attorney's right to practice law in New York State

Schoenefeld v. State of New York, et al., USCA, 11-4283-cv

The U.S. District Court, Northern District of New York, held that Section 470 of the Judiciary Law, which requires nonresident attorneys to maintain an “office for the transaction of law business” within the state of New York in order to practice in New York courts, places an impermissible burden on Ms. Schoenefeld’s fundamental right to practice law and that the state “failed to establish either a substantial state interest advanced by [the statute], or a substantial relationship between the statute and that interest” [Schoenefeld v. New York, 907 F. Supp. 2d 252, (N.D.N.Y. 2011)].

The State appealed and the U.S. Circuit Court of Appeals, Second Circuit, certified the following question to the State’s Court of Appeals:

Under New York Judiciary Law Section 470, which mandates that a nonresident attorney maintain an "office for the transaction of law business" within the state of New York, what are the minimum requirements necessary to satisfy that mandate?

The Circuit panel retained jurisdiction to decide the case “once we have the benefit of the views of the New York Court of Appeals or once that court declines to accept certification."

The Second Circuit Court’s ruling is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/doc/11-4283_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/hilite/
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