A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

Sullivan (Brookville Ctr. for Children's Servs., Inc.-- Commissioner of Labor), 2014 NY Slip Op 08703, Appellate Division, Third Department

A claimant for unemployment insurance benefits [Claimant] had been employed for almost seven years. She was terminated from her position as the result of her violating the employer's written policy prohibiting employees from posting on social media "during work hours, unless for specific and approved business purposes." 

The Unemployment Insurance Appeal Board determined that Claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer appealed.

The Appellate Division commenced its discussion by noting that “The question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve.” Further, court said that the Boar’s “determination will not be disturbed if supported by substantial evidence." 

The court explained that not every discharge for cause rises to the level of misconduct, which is defined as "a willful and wanton disregard of the employer's interest." 

Noting that Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours, the Appellate Division commented that the record indicated that it was “an isolated incident” and that Claimant had a clean disciplinary record prior to her termination. 

Citing Matter of Nangreave, 107 AD3d 1211, the court sustained the Board’s determination as “Substantial evidence thus supports the determination of the Board that ‘Claimant's’ behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08703.htm

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission  

Covel v Town of Peru,2014 NY Slip Op 08686, Appellate Division, Third Department 

Donald E. Covel Jr., a former elected official and employee of the Town of Peru, commenced a CPLR Article 78 proceeding contending that the employee benefit policy unilaterally enacted by the Town in 1991-1992 served as an implied promise requiring the Town to pay his health insurance benefits after he retired in 2009 with 33 years of service as a part-time employee. 

The 1991-1992 policy provided, as relevant in this action, that a part-time employee eligible for the Town's health insurance plan "who subsequently retires with 20 years' continuous service will be allowed to carry health insurance into retirement for both the employee and the spouse with the premium being paid by the Town."

Supreme Court granted Peru’s motion to dismiss Covel’s petition, concluding, among other things, that the Town’s 1991-1992 policy did not constitute a contract and the Town's 2009 policy, which rescinded all prior policies and did not provide for payment of part-time employee's health insurance premiums upon retirement, was applicable. The Supreme Court noted that the 1991-1992 policy relied on by Covel was a unilateral offer from the Town that had been revoked prior to Covel's performance of the acts required for acceptance – retirement from service with the Town.

The Appellate Division affirmed the Supreme Court’s ruling, rejecting Covel argument that once he achieved 20 years of service his right to this retirement benefit vested no matter when he retired.

The Appellate Division disagreed and said that, in its view, the language of the 1991-1992 policy is susceptible to only one reasonable interpretation and should be enforced according to its plain terms. 

The court then said that the plain terms of the policy “require 20 years of continuous service and retirement in order for part-time employees to be entitled to have the Town pay insurance premiums.”

Concluding that Supreme Court's interpretation reflects "a practical construction of the language used so that the reasonable expectations of the parties are realized” the Appellate Divsion dismissed Covel’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08686.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 27, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 27, 2014

Click on text highlighted in color  to access the full report

DiNapoli: New Yorkers Foot the Bill for Billions in Public Authority Spending and Debt

Spending by New York’s largest public authorities jumped $3.5 billion since last reported in 2013, with state and local authorities reporting nearly $60 billion in spending in their latest annual filings, according to a report released Tuesday by State Comptroller Thomas P. DiNapoli. Meanwhile, the combined debt of state and local authorities topped a quarter of a trillion dollars.

DiNapoli: Cohocton Town Clerk Pleads Guilty in $36,000 Theft Former Cohocton Town Clerk Sandra Riley pleaded guilty in Steuben County Court Monday to stealing $36,000 in dog license and building permit fees after an audit and investigation by State Comptroller Thomas P. DiNapoli’s office revealed the theft of public funds.

DiNapoli Consumer Alert: Contribute to a 529 College Savings Account and Deduct up to $10,000 From Your State Taxes

New York State Comptroller Thomas P. DiNapoli Tuesday reminded New Yorkers that contributions to a New York State 529 College Savings Program account are tax deductible. New York’s 529 College Savings Program, an investment tool designed to help parents save for college, ranks among the best in the nation, and New York is one of a handful of states that offer state tax relief.

DiNapoli Releases November State Cash Report State tax collections through the first eight months of the state fiscal year totaled $41.8 billion, $242.2 million higher than projected in the latest Financial Plan update, according to the November cash report released Monday by New York State Comptroller Thomas P. DiNapoli. The state has also collected nearly $4.1 billion of the $5.5 billion expected from financial settlements since the budget was enacted, which is approximately $3.8 billion more than anticipated.

Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed audits of the:

Town of Broome, 
Candor Fire District,  
County of Clinton Industrial Development Agency,  
Dutchess County,  
Genesee County, 
Georgetown Fire District, 
Greene County, 
Hewlett Bay Fire District, 
Long Lake Fire District No. 1, 
Town of Milford,  
New Woodstock Fire District,  
Town of Pierrepont, and the 
City and Town of Poughkeepsie Joint Water Project.

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Aide to Governor Cuomo's letter to State Regents Chancellor and State Education Commissioner seeks suggestions to improve the State's education system

Aide to Governor Cuomo's letter to State Regents Chancellor and State Education Commissioner seeks suggestions to improve the State's education system

Source: Hornell New York The Evening Tribune [Updated Dec 24, 2014]

An article appearing in the Hornell [NY] Evening Times captioned “Cuomo aide: Teacher reforms top governor's agenda,” by Al Bruce reports that “A letter sent to high-ranking state education officials last week by a top aide to Gov. Andrew M. Cuomo" seeks suggestions to improve the State's primary and secondary education operations.

The article indicates that “The three-page letter, although addressed to State Regents Chancellor Dr. Merryl H. Tisch and State Education Commissioner Dr. John B. King Jr., was distributed to superintendents of some member districts of Boards of Cooperative Education Services. Dr. James J. Malatras, director of state operations, asked the questions in the letter" dated December 18, 2014.

Mr. Bruce's article, which includes a number of the questions posed by Dr. Malatras, is posted on the Internet at:

http://www.eveningtribune.com/article/20141224/NEWS/141229841
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Court review of an interim order of an arbitrator

Court review of an interim order of an arbitrator

Kramer v Geldwert, 2014 NY Slip Op 08732, Appellate Division, First Department

Supreme Court denied the petitioner’s motion for discovery in aid of arbitration and dismissed the matter. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that although in exceptional circumstances, pre-hearing discovery pursuant to CPLR 3102(c) may be ordered after the demand for arbitration has been made, a court may not review the interim orders of an arbitrator.

Thus, concluded the Appellate Division, judicial review of procedural rulings made in the arbitration giving rise to this arbitration administered by the American Arbitration Association is barred’

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08732.htm