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April 03, 2015

Applying the Doctrine of Primary Jurisdiction


Applying the Doctrine of Primary Jurisdiction
2015 NY Slip Op 02769, Appellate Division, Second Department

A teacher [Educator] sued the school district when it declined to add two years to her “seniority credit.” Supreme Court granted the school district’s motion “pursuant to the doctrine of primary jurisdiction to the extent of staying the proceeding so that the parties could bring the issue before the New York State Commissioner of Education.” Educator appealed.

The Appellate Division affirmed the Supreme Court’s ruling with costs awarded to the school district.

The court explained that "The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions."

This doctrine applies, said the Appellate Division, "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views," citing Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147.

In this instance the question before the court concerned the appropriate calculation of Educator's seniority and thus, said the Appellate Division, fell within the special knowledge and expertise of the Commissioner of Education.

Thus, said the court, Supreme Court properly granted the school district’s motion to the extent of staying the proceeding so that the parties could bring the issue before the Commissioner.

The decision is posted on the Internet at:

April 02, 2015

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage enjoyed by the individual at the time of his or her retirement


A collective bargaining agreement may establish a vested right to a continuation of the same health coverage as a retiree enjoyed by the individual at the time of his or her retirement
Guerrucci v School Dist. of City of Niagara Falls,  2015 NY Slip Op 02617, Appellate Division, Fourth Department

Reversing a ruling by Supreme Court, the Appellate Division held that the “individual plaintiffs are entitled to the health insurance coverage provided in the collective bargaining agreement in effect at the time each individual plaintiff retired” and “those individual plaintiffs eligible for conversion of health insurance coverage ‘supplemental to Medicare’ are entitled to such coverage that, when combined with Medicare, equals the health insurance benefits prior to such conversion.”

Retired administrators [Plaintiffs] who were employed by Niagara Falls City School District alleged that the School District was in breach of contract with respect to its providing health insurance to these retirees.

The Appellate Division noted that the parties did not dispute that the language at issue in the various CBAs is unambiguous and, at oral argument, the School District had conceded that this case is controlled by Kolbe v Tibbetts (22 NY3d 344).

In Kolbe the Court of Appeals held that the relevant collective bargaining agreements [CBAs] “establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.”

Here the 1984-1987 and 1987-1990 CBAs provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Cross/Blue Shield coverage in effect at the time of his or her retirement, excluding dental coverage and major medical insurance, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage" while the 1990-1994 CBA provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Shield coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those retirees entitled to conversion of that coverage to coverage that is "supplemental to Medicare." The 1994-1997 and later CBAs provide that "[a]ny administrator who retires . . . shall continue to receive medical coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those entitled to conversion of that coverage to coverage that is "supplemental to Medicare."

The court said that it:

1. It agreed with Plaintiffs that the plain meaning of the CBA provisions at issue is that, upon retirement, a retiree will receive the health insurance coverage that the retiree was receiving prior to retirement, until the retiree becomes eligible for Medicare;* and

2. It agreed  with Plaintiffs that the supplemental coverage provided for in the CBAs required that School District provide health insurance coverage that, when combined with Medicare, equaled the health insurance benefits that the retirees enjoyed prior to qualifying for Medicare, 

The court explained that in interpreting a CBA, "it is logical to assume that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

In the words of the Appellate Division, “In view of our determination that the CBAs prevented [the School District] from reducing the retirees' health insurance benefits during retirement and that the intent of the CBAs was to ‘fix [the retirees'] rights to coverage as of the time they retired’ ... we conclude that the provision for ‘coverage . . . which is supplemental to Medicare’ means coverage that when combined with Medicare is equivalent to the health insurance coverage that the retirees enjoyed prior to becoming eligible for Medicare.”

* The Appellate Division noted that the CBAs provided that when certain retirees "reache[d] his or her sixty-fifth (65th) birthday and qualifie[d] for medical insurance under Social Security, the coverage shall be changed to that which is supplemental to Medicare."

The decision is posted on the Internet at:

April 01, 2015

Police officer disciplined for attempting to “fix tickets”


Police officer disciplined for attempting to “fix tickets”
2015 NY Slip Op 02686, Appellate Division, First Department

After a disciplinary hearing the hearing officer found the police officer was guilty of asking other officers for help in preventing the “prosecution of summonses issued to other individuals” on two occasions.

The Police Commissioner, adopting the findings of the hearing officer, determined that the police officer had engaged in conduct prejudicial to the good order, efficiency or discipline of the police department. The penalty imposed: a one year of suspended-dismissal probation, a five days suspension without pay and the forfeiture of 25 vacation days.

In response to the police officer’s appeal the Appellate Division unanimously confirmed the Police Commissioner’s determination which decision the court held was  supported by substantial evidence.

The Appellate Division commented that the inference of the hearing officer that police officer had attempted to prevent “the prosecution of summonses” on two occasions was rationally based on police officer's admission that he requested another officer take care of summonses "[a] couple of times," explaining that it perceived no basis in the record for disturbing the hearing officer's credibility findings.

The decision is posted on the Internet at:


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March 30, 2015

Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business


Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business
2015 NY Slip Op 02560, Appellate Division, First Department

The Administrator of the Estate of an individual shot by an off-duty New York City police officer after a "road rage" related altercation sued the City for alleged negligent training and instruction of the officer involved in the incident.

Supreme Court held that the off-duty police office’s act of shooting the decedent as the result of “road rage” was a private, intentional act that occurred outside the scope of his employment as a police officer.

The Appellate Division agreed, ruling that any alleged deficiencies in the City's training and instruction of its police officers could not have been the  proximate cause of the decedent's injuries.

In another case involving alleged off-duty misconduct, Jane Doe v New York City Department of Education, 2015 NY Slip Op 02433, it was undisputed that a teacher and a student had engaged in unlawful sexual intercourse after school hours. The Appellate Division, however, rejected the student’s argument that the New York City Board of Education was vicarious liable for the teacher’s misconduct as the alleged sexual intercourse with the student was not in furtherance of school business and was outside the scope of the teacher's employment.

The decision is posted on the Internet at:

The Doe decision is posted on the Internet at:


March 29, 2015

Those concerned with employment related litigation in the public sector may be interested in some of the LawBlogs listed by Justia


Those concerned with employment related litigation the public sector may be interested in some of the LawBlogs listed by Justia

Justia currently tracks the readership of 6,098 Lawblogs in 74 subcategories, ranking the most popular based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. For example,
 
“Administrative Law” Blawgs are listed at:

“Employment Law” Blawgs are listed at:

 “Government Law” Blawgs are listed at:

In addition, Blawgs with a “New York State” Focus are listed at:

Featured Blawgers are chosen by editorial selection of the BlawgSearch team.

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com