Determining the effective date of a “9-11 related” accidental disability retirement allowance established by "reclassification"

Determining the effective date of a “9-11 related” accidental disability retirement allowance established by "reclassification"

2015 NY Slip Op 05584, Appellate Division, First Department

When a retiree’s [Retiree] retirement status was reclassified to “accidental disability retirement” [ADR] he asked that the change in his retirement allowance be made retroactive and his disability retirement allowance be adjusted accordingly. Citing New York City’s Administrative Code §13-252.1[2][b],* the New York City Police Pension Fund [NYCPPF] denied Retiree's request.

Retiree filed a petition pursuant to CPLR Article 78 seeking a court order directing NYCPPF to recalculated his ADR s benefits based on it having being made “retroactive” rather than being based on the date of NYCPPF's decision to reclassify his retirement status to ADR.

The Appellate Division sustained the denial of Retiree’s request for retroactive benefits. The court explained that the statute prohibited the retirement system from providing such relief, observing that the “remedy, if any, lies with legislative action.”

§13-252.1[2][b] provides that “The NYCPPF board of trustees shall consider a reclassification of the member's retirement as an accidental disability retirement effective as of the date of such reclassification” [emphasis supplied].

* New York City’s Administrative Code §13-252.1[2][b] addresses “Accidental disability retirement; World Trade Center presumption.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05584.htm

An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System

An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System

2015 NY Slip Op 04554, Appellate Division, Third Department

A registered nurse [Nurse] worked for Clinton County from 1989 to 2012 as an in-service educator for its public health program pursuant to a series of annual employment contracts that were subject to the approval of the County Legislature.

These contracts stated that Nurse “was an independent contractor  and that she was not eligible for any benefits, including sick leave, vacation pay, pension or retirement benefits” that might be otherwise available to County employees. Further, the record indicated that Nurse:

1. was responsible for providing her own health insurance and malpractice insurance;

2. was paid an hourly wage by voucher upon her submission of a weekly time sheet and no payroll deductions were taken out of her base pay;

3. had no set hours and it was up to Nurse to determine how, when and where she completed the projects.

4. was permitted to hire others to complete the projects; and

5. she could perform services for others at any time.

After Nurse’s job ended, she filed an application for membership in New York Stateand Local Retirement System [ERS]. ERS denied the application, finding that Nurse was an independent contractor and not an employee of the County and, accordingly, was not eligible for membership in ERS.

Nurse commenced a CPLR Article 78 proceeding challenging the denial of her application for membership in ERS. The Appellate Division sustained ERS’s decision to reject Nurse’s application for membership explaining that in light of the information in the record “substantial evidence supports the Comptroller's determination that [Nurse] was an independent contractor, despite the evidence in the record that could support a contrary result.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04554.htm

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.

Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.

Individuals having a background and experience in government contracting, construction, engineering or related law are invited to apply.

However, OATH requests that otherwise qualified individuals currently employed by the City; individuals having a contract or dispute with the City; and individuals regularly representing persons, companies or organizations having disputes with the City not apply.

For more information go to: CDRB Notice 2015. 

For an application form go to: CDRB Panelist Application 2015.

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits

2015 NY Slip Op 04552, Appellate Division, Third Department

A claimant [Worker] for unemployment insurance benefits challenged a decision of the Unemployment Insurance Appeals Board [Labor] holding that certain remuneration that claimant earned could not be used to establish entitlement to unemployment insurance benefits.

Worker, who had worked for multiple employers, filed for unemployment insurance benefits. During her base period, Worker’s employment included services performed as an election poll worker for the New York City Board of Elections.

Labor determined that Worker was entitled to unemployment insurance benefits, but that the remuneration received from the Board of Elections could not be considered in establishing her benefit rate because it did not constitute “covered employment.”

Worker had testified that she had responded to a card received in the mail from the Board of Elections asking if she was available to work on Election Day. She responded that she was available and subsequently received training. Worker was subsequently assigned to a polling place, where she worked as a poll worker or inspector on Election Day performing such duties as setting up and overseeing tables, signing in voters and instructing them on the use of the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were then reported to the Board of Elections.

The Appellate Division sustained the Board’s determination, noting that poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections.

Such individuals serving at polling places in New York City are compensated at a per diem rate established by the Mayor. Although the Board of Elections may have exercised some supervision over the poll workers and their training pursuant to the relevant, the Appellate Division said that “this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute.”

The court also rejected Worker’s contention that she should have been deemed to be an employee “because taxes were withheld from her paycheck pursuant to a ruling by the Internal Revenue Service [IRS] that poll workers are considered employees for federal tax purposes” as such rulings by the IRS are not binding on the Board.

Finding that substantial evidence supported the Board's determination, the Appellate Division said that it would not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04552.htm

Adding parties to the litigation pursuant to the “relation-back" doctrine

Adding parties to the litigation pursuant to the “relation-back" doctrine

Crawford v City of New York, 2015 NY Slip Op 05267, Appellate Division, First Department

Barry E. Crawford initiated a lawsuit naming the City of New York and certain “John Does” as defendants. He later filed a motion to amend his complaint to substitute certain named New York City police officers in the place of the “John Does” initially named in his complaint relying on the "relation-back doctrine".*

Supreme Court granted Crawford’s motion; the Appellate Division reversed the lower court’s action “on the law.”

The Appellate Division ruled that Supreme Court “improvidently granted” Crawford’s motion to amend his complaint to add the individually named defendants in lieu of the "John Doe" defendants he had initially listed in his complaint after the statute of limitations expired under color of the relation-back doctrine. The court noted that Crawford did not deny that he was aware of the proper identity of these “John Doe” defendants four-and-one-half months prior to the expiration of the statute of limitations but waited another two years to move to amend his complaint after filing “a note of issue.”

The court explained that  there was no "mistake" by Crawford as to the proper identity of the parties within the meaning of the relation-back doctrine and that the “John Doe defendants" had every reason to believe that Crawford did not intend to sue them and that the matter had been laid to rest as far as these “John Doe” defendants were concerned.

* Essentially the application of the “relations back doctrine” permits something done “today” to be treated as if it were done at an “earlier” time, i.e., permitting a “later identified” individual to be sued in his or her own name rather than as an earlier named “John Doe” defendant.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05267.htm