Applying the doctrine of estoppel against a governmental entity

Applying the doctrine of estoppel against a governmental entity

2015 NY Slip Op 02551, Appellate Division, Third Department

In Owens v McGuire, 121 AD2d 292, the Appellate Division said that the doctrine of estoppel can only be applied “against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.”

In 2004 representatives of the New York State and Local Retirement System [System] told an individual [Member] that he was eligible to receive member service credit in the System for his employment with the Legal Aid Society of Westchester County from 1973 to 1975.

In January 2011, Member filed an application for a retirement allowance. However the System then determined that the Legal Aid Society was not a participating employer in the Retirement System and thus Member was not entitled to member service credit for the period during which he served with the Legal Aid Society. Member, seeking a reversal of the System’s determination, requested, and was given a hearing

In the course of the hearing a number of Retirement System employees testified that the Legal Aid Society was not a participating employer and the Hearing Officer denied Member's application for member service credit for the period during which he was employed by the Legal Aid Society. The Comptroller adopted the hearing officer’s ruling and Member appealed.

The Appellate Division sustained the Comptroller’s decision, explaining that a “petitioner has the burden of proof to establish his [or her] entitlement to retirement [member] service credit.” Here, noted the court, Member had testified that he had no evidence that the Legal Aid Society was ever a participating employer in the Retirement System.

Accordingly, said the court, inasmuch as the record reflects that Member was not employed by a participating employer during the period in question, the Comptroller’s denial of the retirement service credit was supported by substantial evidence.

Member had also contended that the System was estopped from denying the retirement member service credit based on the earlier misinformation provided to him by employees of the Retirement System. The court disagreed and rejected this branch of Member’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02551.htm

The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

2015 NY Slip Op 03787, Appellate Division, First Department

Supreme Court denied a teacher’s [Teacher] petition seeking to annul the appointing authority’s sustaining unsatisfactory rating given Teacher for the school year in question.

Teacher appealed but the Appellate Division affirmed the lower court’s determination.

Teacher had contended that the appointing authority had “violated Department of Education Bylaw §4.3.3,” alleging that the assistant principal responsible for three of the four unsatisfactory observation reports was not present at the administrative hearing at which Teacher had challenged the performance rating he had received.

The Appellate Division first addressed a procedural issue – was Teacher’s complaint with respect to the absence of the assistance principal from the hearing ripe for the court’s review. It decided that Teacher’s claim regarding the absence of the assistant principal “was unpreserved” as Teacher did not raise this issue before the agency, citing Seitelman v Lavine, 36 NY2d 165 and thus could not be considered in this appeal.

Not withstanding the rejection of Teacher’s challenge on procedural grounds, the court said that regardless of the failure of Teacher to preserve the matter for the purpose of appeal, the record showed that the appointing authority’s determination had a rational basis as it was supported by the testimony of the school principal, who conducted a formal observation of Teacher’s performance and reached the same conclusions as the assistant principal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03787.htm

An employee injured on the job may sue for injuries he or she subsequently suffered while being transported to a hospital for treatment for his or her job related injuries

An employee injured on the job may sue for injuries he or she subsequently suffered while being  transported to a hospital for treatment for his or her job related injuries

2015 NY Slip Op 03506, Appellate Division, Second Department

A correction officer [Officer] sustained an injury in the course of his employment at a New York City corrections facility.  While Officer was being transported in a New York City Fire Department ambulance to a local hospital, the ambulance was involved in a motor vehicle accident. 

Officer applied for workers' compensation benefits for the injuries he sustained in the prison. In addition, Officer filed a lawsuit against, among others, the City of New York, the New York City Fire Department and the ambulance driver [Defendants] seeking damages for the injuries he allegedly sustained as a result of the motor vehicle accident that  occurred while he was being transported to the hospital.

Supreme Court denied Defendants’ motions to {1] amend its answer “to add an affirmative defense based on the exclusivity of the Workers' Compensation Law,” and [2] for summary judgment “dismissing the complaint insofar as asserted against them.” 

Defendants appealed but the Appellate Division sustained the Supreme Court’s ruling.

While "In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment," the Appellate Division said that even if a plaintiff received workers' compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, "but which did not arise out of or in the course of the plaintiff's employment.”

The Appellate Division found that such was the case in this action, explaining that notwithstanding Officer’s filing a claim for workers' compensation benefits for the injuries he sustained “on the job,” he was not precluded from commencing a separate action to recover for damages he allegedly suffered that were “caused by separate injuries that occurred outside the scope of his employment” – i.e., in the course of his being transported to a hospital by ambulance. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03506.htm

A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."

A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."

2015 NY Slip Op 03496, Appellate Division, Second Department

Among the defendants in this wrongful death action involving a police officer [Officer] were Officer’s employers: the Town Police Department and Town [Defendants]. 

The complaint alleged that Officer was handling his "off-duty handgun" when it went off and killed his friend, the deceased victim [Victim]. The Administrator of Victim’s estate and family members sued the Defendants, alleging, in relevant part, that Defendants were liable for the Victim’s death because Defendants were negligent in the hiring, retention, and supervision” of Officer. It was also claimed that the Defendant's were "vicariously liable" for Victim’s death pursuant to the doctrine of respondeat superior.

Supreme Court denied Defendants’ motions to dismiss them from the action “for failure to state a cause of action.” Defendants appealed. The Appellate Division ruled that Supreme Court should have granted Defendants’ motions to dismiss the complaint as to them.

As to the Administrator’s “negligent hiring, retention and supervision” claims, the Appellate Division explained that a necessary element of this cause of action is that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury." 

Here, said the Appellate Division, the evidentiary material submitted by Administrator failed to demonstrate that Defendants were guilty of the alleged “negligent hiring, retention, or supervision” of Officer.

Addressing that part of  Administrator’s compliant that alleged Defendants were vicariously liable pursuant to the doctrine of respondeat superior, the Appellate Division said that the doctrine of respondeat superior requires a showing that alleged wrongdoing committed by the employer’s employee occurred while that employee was acting “within the scope of employment and in furtherance of the employer's business."

The Appellate Division found that although Administrator’s complaint “generally alleged” that Officer was acting within the scope of his employment and in furtherance of the Defendant’s' purpose, the fact alleged by Administrator was “not a fact at all” and “no significant dispute exists regarding it.”  Again, said the Appellate Division, the Supreme Court “should have granted” Defendants’ motion to dismiss the part of Administrator’s cause of action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03496.htm

The activities of the State’s Joint Commission on Public Ethics and the Legislative Ethics Commission to be reviewed

The activities of the State’s Joint Commission on Public Ethics and the Legislative Ethics Commission to be reviewed

Members of a Review Commission, the JCOPE Review Commission, have been appointed. The Review Commission is to review and evaluate the activities and performance of the State’s Joint Commission on Public Ethics and the Legislative Ethics Commission.

The Review Commission's report addressing the State’s Joint Commission on Public Ethics and the Legislative Ethics Commission activities, and which is to include its recommendations with respect to strengthening the administration and enforcement of ethics laws in New York State, must be delivered to the Governor and to the Legislature on or before November 1, 2015.

The eight individuals named to the Review Commission by Governor Andrew M. Cuomo, Temporary President and Majority Leader of the Senate Dean G. Skelos, and Speaker of the Assembly Carl E. Heastie are:

Anthony Crowell, Dean at New York Law School and former counsel to Mayor Michael Bloomberg, is an expert in state and local government law. He also previously served as Special Counsel to the Mayor and Assistant Corporation Counsel in the New York City Law Department’s Tax & Condemnation and Legal Counsel Divisions, and at the International City/County Management Association. Dean Crowell earned a law degree, cum laude, from American University and a Bachelor of Arts, magna cum laude, from the University of Pennsylvania.

Michael S. Feldberg is a partner at Allen & Overy LLP, where he is the head of the firm’s U.S. litigation practice. He is a former Assistant United States Attorney for the Southern District of New York, and has experience litigating and trying cases in a wide variety of areas, with a special emphasis on the defense of federal criminal and regulatory cases as well as federal civil litigation. He graduated from Harvard Law School, cum laude, in 1977, and Harvard College, magna cum laude, in 1973.

Seymour James is the Attorney-in-Chief of The Legal Aid Society in New York City. Mr. James joined The Legal Aid Society in 1974 as a staff attorney and has served in various supervisory capacities. He is a member of the New York State Justice Task Force, the Committee on Character and Fitness for the Second Judicial Department, and the New York State Permanent Sentencing Commission, and was recently appointed to Mayor DeBlasio's Task Force on Behavioral Health and the Criminal Justice System. James also serves on the Executive Committee of the State Bar's Criminal Justice Section and on the State Bar's Committee on Leadership Development. He is a member of the Board of Directors of the Correctional Association of New York and the New York State Defenders Association and a member of the Chief Defender Council and the Defender Policy Group of the National Legal Aid and Defender Association. James earned his law degree from Boston University School of Law, and his undergraduate degree from Brown University.

Tony Jordan was elected as Washington County District Attorney in 2013. Prior to becoming district attorney he served in the New York State Assembly for three terms representing parts of Saratoga and Washington Counties. Jordan was a partner in the law firm of Jordan & Kelly LLC, and served as an Assistant District Attorney in Washington County before his time in the Assembly. He earned a law degree from the University of Pennsylvania Law School in 1995 magna cum laude, and received his bachelor’s degree from the University of Notre Dame in 1986.

William LaPiana is the Rita and Joseph Solomon Professor of Wills, Trusts, as well as the Estates Director, Estate Planning, Graduate Tax Program for New York Law School, where he has taught since 1987. Prior to teaching, he also served as an associate at Davis Polk & Wardwell in New York. Dr. LaPiana is a Buffalo native who holds both a Ph.D. in History and a J.D. from Harvard, where he also received his B.A. and an M.A.

Elizabeth Moore is currently Senior Vice President and General Counsel at Con Edison. She was formerly a former partner in the firm of Nixon Peabody LLP, where she specialized in public finance, employment law, procurement policy, and government compliance and regulatory issues. Ms. Moore previously served for 12 years in the administration of former New York Governor Mario Cuomo, and was Counsel to the Governor from 1991 to 1994. Moore earned a law degree from St. John’s University and a Bachelor of Science from the School of Industrial and Labor Relations at Cornell University, where she is a member of the Board of Trustees.

Patricia Salkin, Dean at Touro Law School, is a nationally recognized scholar on land use law and zoning. She formerly served as a professor of law, as well as Associate Dean and Director of the Government Law Center of Albany Law School and as an Assistant Counsel for NYS Office of Rural Affairs. Dean Salkin is co-chair of the NYS Bar Association’s Standing Committee on Legal Education and Admission to the Bar. She served two terms as an appointed member of the National Environmental Justice Advisory Council, a Federal Advisory Committee to the U.S. Environmental Protection Agency. Dean Salkin earned a law degree, cum laude, from Albany Law School of Union University, and a Bachelor of Arts degree, cum laude, from the State University at Albany.

Former Senator Dale Volker represented Western New Yorkers in the State Legislature for over 35 years before retiring in 2010. Formerly a police officer, he was first elected to the New York State Assembly in 1972, and three years later, won a special election to the Senate. During his time as a Senator he served as chairman of the Energy and Codes committees, as well as the Subcommittee on Alcoholism. Senator Volker earned his law degree from the University of Buffalo and his undergraduate degree from Canisius College.