Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

2014 NY Slip Op 02999, Appellate Division, Third Department

A former teacher [Teacher] challenged a decision by the Board of Education [Board] reinstating another former teacher whose name was on the preferred list ahead of Teacher to fill a vacant teaching position.

Teacher complained that the Board had improperly calculated her seniority to her detriment with respect the placement of her name on the preferred list. The Board, however, moved to dismiss the proceeding on grounds, among other reasons, collateral estoppel and res judicata, contending that the dismissal of a prior proceeding challenging the earlier reinstatement of a different former teacher rather than Teacher to fill another vacant position barred the instant proceeding.

The earlier proceeding had been dismissed based on, among other things, Teacher's failure to commence the proceeding within four months of the determination to recall the other teacher. Supreme Court granted the Board's motion to dismiss Teacher’s instant action on collateral estoppel grounds and Teacher appealed.

The Appellate Division reversed the lower court’s ruling, explaining that in order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding.

Here, however, although Teacher raised an issue identical to the one she had raised in her earlier action, -- was she is entitled to more seniority credit than the Board gave her -- that issue has never been decided on the merits as it had been dismissed on procedural ground, having been untimely filed.

Citing Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, the Appellate Division ruled that [b]ecause the issue of whether [Teacher] is entitled to more seniority has not been decided, it is not barred by collateral estoppel and remanded the matter to Supreme Court for further proceedings “not inconsistent with" its ruling.

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Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Trotman v New York State Cts., 2014 NY Slip Op 03002, Appellate Division, Third Department

A senior court officer [Officer] was injured shortly before the beginning of his work shift when he slipped and fell on ice. The incident occurred on a public sidewalk that he was traversing to reach the government center after parking his car on the street.

Although the Workers' Compensation Law Judge established the claim, the Workers' Compensation Board denied his ensuing application for workers' compensation benefits, finding that his injury did not arise out of and in the course of his employment. Claimant now appeals.

The Appellate Division affirmed the Board’s determination explaining that "Accidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment." As Officer’s accident occurred near his place of employment, his claim falls within "a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation." 

In contrast, said the court, in order for such an injury come within the ambit of eligibility for workers' compensation benefits, the injury must result from "(1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned."

Further, said the court, the fact that Officer was directed to travel to another court facility after he arrived at work on the day in question “does not compel a different result.”
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California Superior Court Judge holds that California's teacher tenure laws are unconstitutional,

California Superior Court Judge holds that California's teacher tenure laws are unconstitutional

Source: Findlaw – Breaking Legal Documents [By Adam Ramirez, June 10, 2014]

“California's laws on teacher tenure, layoffs and dismissals deprive students of their constitutional right to an education, a Los Angeles Superior Court judge ruled Tuesday, June 10, 2014.*

“The ruling is a serious defeat for teachers' unions that overturns several California laws that govern the way teachers are hired and fired. 

“The 16-page decision (see Internet link below) may set off a slew of legal fights in California and other states, where many education reform advocates are eager to change similar laws.

‘There is ... no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,’ Judge Rolf M. Treu wrote. ‘Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students. The evidence is compelling. Indeed, it shocks the conscience’

“Enforcement of the much awaited ruling in Vergara v. California will be delayed pending an appeal by the lawsuit's defendants, the state and California's two major teachers unions.”

Court in New York State have addressed efforts by a number of school districts to “eliminate tenure.”

In Conetta v Patchogue-Medford Union Free School District, 165 Misc2d 329, a New York State Supreme Court Judge ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level [in contrast to tenure granted to college and university faculty] was essentially guaranteed job security ... coupled with automatic salary increases."

Similarly, in Costello v East Islip UFSD Supreme Court** ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period. 

Apparently mindful of the Conetta ruling, East Islip decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation by adopting a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

To emphasis the point, the contracts included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law. The court noted that the characterization of the waiver as "voluntary" is questionable since there was no indication that any teacher refusing to agree to such a waiver would be hired.

The Appellate Division affirmed, holding although East Islip was correct that a teacher's rights with respect to tenure are waivable when the waiver is "freely, knowingly, and openly arrived at without the taint of coercion or duress," this does not, however, give the Board the authority to eliminate the tenure system altogether. 

Citing Carter v Kalamejski, 255 App Div 694, aff'd 280 N.Y. 803, the Appellate Division explained that “the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.” In contrast, the court observed that providing tenure by contract terminating automatically at the expiration of the contract period as proposed by East Islip was “the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence.”***

In Conetta, State Supreme Court Judge Lockman suggested that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations authorized by Article 14 of the Civil Service Law, the Taylor Law.

* The decision is posted on the Internet at:

http://www.scribd.com/doc/229011497/Teacher-Tenure-Laws-Are-Unconstitutional-Shock-the-Conscience-CA-Judge-Rules

** Costello v East Islip UFSD, Supreme Court [not selected for publications in the official reports] Affirmed 250 A.D.2d 846. See, also, Lambert v Board of Educ. of Middle Country Cent. School Dist., 174 Misc.2d 487,

*** In Yastion v Mills, 229 A.D.2d 775, the Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

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Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

2014 NY Slip Op 03944, Appellate Division, First Department

A New York City police officer [Plaintiff] was terminated from his position based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a department "GO-15"* interview concerning his alleged unauthorized absence from his home while on sick report. Plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

Plaintiff challenged his termination alleging that the penalty of dismissal was excessive and an abuse of discretion. The Article 78 petition filed by his then attorney was dismissed because the attorney had filed to file a timely appeal. Plaintiff then initiated an action against the attorney to “recover damages for legal malpractice” but Supreme Court dismissed Officer’s petition alleging legal malpractice.

The Appellate Division affirmed the lower court’s ruling, explaining that in an action for legal exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty caused his or her plaintiff-client to sustain "actual and ascertainable damages." Further, said the court, to establish causation, the plaintiff-client must show that he or she “would have prevailed in the underlying action or would not have incurred any damages ‘but for’ the lawyer's negligence."

Supreme Court had granted the respondent attorney’s motion for summary judgment after finding this critical "but for" element was missing as Officer would not have prevailed in the underlying Article 78 proceeding challenging his dismissal from his position. The Appellate Division concurred with the Supreme Court’s ruling noting that “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment," citing Duncan v Kelly, 43 AD3d 297, affirmed 9 NY3d 1024.

As the United States Supreme Court held in Bryson v. United States, 396 U.S. 64 (1969), "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption." 
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Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual

Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department

A former Court of Claims Judge and acting Supreme Court Justice, relying on the erroneous advice of employees of the Office of Court Administration (OCA) that he was vested in his New York State Health Insurance Program (NYSHIP) resigned from his position. He subsequently learned that he was not eligible to vest his NYSHIP benefits and thus was not eligible for NYSHIP benefits under the law.

Asserting that he would not have resigned from his position when he did if not for this advice, he filed a petition in the Court of Claims seeking a court order reinstating him as a NYSHIP participant or, in the alternative, an order awarding him money damages. The Court of Claims granted OCA’s motion to dismiss the action.

The Appellate Division, affirming the Court of Claim’s ruling, held that notwithstanding the incorrect information provided by the OCA employees, which was ministerial in nature, and which might subject the governmental body to liability, no claim of a “special duty was advanced by the former judge in contrast to his being treated same as any other employee seeking advice or information from OCA.

Accordingly, said the court, OCA may not be estopped from applying the law to the former judge notwithstanding the incorrect information given to him by an OCA employee and upon which he acted to his detriment.

Citing Matter of Grella, 38 AD3d 113, the Appellate Division explained that estoppel may not be invoked to prevent a governmental agency from performing its duty is not applicable here.*In Grella, a case involving eligibility for certain retirement benefits, the court held that even when erroneous advice was given by a Retirement System employee, the Comptroller has the exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped from exercising such duties in order "to create rights to retirement benefits to which there is no entitlement."

* The decision notes that the “the narrow exception to the rule” barring the application of estoppel to a governmental agency was not applicable in this case. [See, also, 2014 NY Slip Op 03907, Appellate Division, Third Department, summarized at http://publicpersonnellaw.blogspot.com/2014/06/the-consequences-of-withdrawing-from.html]
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