Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

2015 NY Slip Op 05406, Appellate Division, First Department

Supreme Court denied a petition seeking to vacate an arbitration award upholding an administrative determination made after a hearing conducted pursuant to a collective bargaining agreement between the Employee's union and the employer terminating the employee from her position and confirmed the arbitration award, unanimously affirmed, without costs.

The Appellate Division held that Supreme Court properly held this special proceeding, commenced pursuant to CPLR Article 78, was in the nature of a CPLR article 75 proceeding challenging the award rendered by the arbitrator pursuant to the grievance procedures set forth in the collective bargaining agreement with Petitioner's union.

Accordingly, Supreme Court had properly dismissed the petition on the ground that it was untimely filed pursuant to the applicable 90-day statute of limitations set out in CPLR §7511[a]), based on Petitioner's admission that she received formal notice of the arbitration award on July 6, 2012.

The fact that Petitioner's pro sestatus in this action, said the Appellate Division, is not a basis to reach the merits of her claim.

An individual who is acting as his or her own attorney in a court action is said to be acting “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05406.htm

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

2015 NY Slip Op 05384, Appellate Division, Fourth Department

A part-time school guidance counselor [Counselor] alleged that the School District [District] had discriminated against her on the basis of "sex/pregnancy" when it declined to renew her employment contract shortly after learning that she was pregnant.

Counselor was employed as a part-time counselor for the District for the 2011-2012 school year and the District invited her to apply for a position for the following school year. Counselor did apply for continued employment with the District and also requested a "pregnancy/disability leave" from the end of August 2012 through January, 2013. Counselor said that she was then notified that she would not be hired because of her anticipated absence.

Counselor filed a complaint with the State Division of Human Rights [SDHR] alleging the District had unlawfully discriminated against her on the basis of "sex/pregnancy." SDHR found “no probable cause” and dismissed Counselor’s complaint without a hearing.

Counselor commenced a CPLR Article 78 proceeding seeking to annul SDHR finding that there was no probable cause to believe that the District had unlawfully discriminated against her. Supreme Court granted Counselor’s petition and remitted the matter to SDHR for a hearing. The Appellate Division affirmed the lower court’s ruling.

The court said that "Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law §297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis." However, explained the Appellate Division, “[t]he complainant's factual showing must be accepted as true on a probable cause determination.” Although the court’s “standard of review” is highly deferential to SDHR’s determination, in this instance the Appellate Division agreed with Supreme Court that SDHR’s determination "was not rationally based upon the evidence presented."

Executive Law §296 prohibits an employer from refusing to hire or employ an individual based on the individual's gender. Rejecting the District’s argument that it decided not to rehire Counselor because of her unavailability and its concern for continuity of counseling services for its students, the Appellate Division, noting that Counselor would be unavailable to work because of her pregnancy, said “we conclude that discrimination could be inferred from the record before us.”

The court observed that the District had relied on Roslyn Union Free Sch. Dist. v State Div. of Human Rights, 72 AD2d 808, in support of its argument that it did not unlawfully discriminate against Counselor. However, said the Appellate Division, “to the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination,” it declined to follow it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05384.htm

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Fair Chance Hiring Application Revisions and Statewide Employment Application

Fair Chance Hiring Application Revisions and Statewide Employment Application

NYS Department of Civil Service General Information Bulletin No. 15-02

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services, announced the publication of NYS Department of Civil Service General Information Bulletin No. 15-02 addressing the Department’s Fair Chance Hiring Application Revisions and Statewide Employment Application

The Bulletin is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB15-02.cfm

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

[Click on text highlighted in color to access the full report]

Department of Agriculture and Markets - Food Safety Monitoring

An audit report issued in January 2014 found the department was unable to meet the demands of its inspection frequency schedule, and identified instances of both existing and new establishments preparing food prior to obtaining the required inspection. In addition, the department’s staff of 82 inspectors was below recommended staffing levels. In a follow-up, auditors found department officials made significant progress in addressing the problems identified in the initial audit. Of the three prior audit recommendations, two were implemented and one was partially implemented. http://osc.state.ny.us/audits/allaudits/093015/15f10.pdf

Division of the Budget - Quality of Internal Control Certifications

In 2012, auditors conducted a series of audits at 12 state agencies focusing specifically on their 2011-2012 Internal Control Certifications submitted to the Division of the Budget (DOB). Auditors examined whether these agencies submitted their certifications on time, answered all the questions with the appropriate level of detail, and maintained documentation supporting the answers given. The initial audit reports concluded that improvements were needed to the quality of Internal Control Certifications at 10 of the 12 agencies. In a follow-up report, auditors found agency officials made significant progress in addressing the problems identified. http://osc.state.ny.us/audits/allaudits/093015/15f7.pdf

Department of Health -Overpayments of Hospitals’ Claims for Lengthy Acute Care Admissions
An initial audit report issued in July 2013 identified $7.8 million in Medicaid overpayments. The overpayments occurred primarily because hospitals billed Medicaid for higher (and more costly) levels of acute care when, in fact, patients received lower-cost non-acute care. In a follow-up, auditors found DOH officials recovered the overpayments identified in the initial report, notified hospitals of the correct way to bill inpatient claims, and modified its contractor’s sampling plan to select and review similar claims at high risk of overpayment. http://osc.state.ny.us/audits/allaudits/093015/15f12.pdf

Roswell Park Cancer Institute - Security Over Electronic Protected Health Information

The institute has taken many steps to safeguard its electronic protected health information (ePHI) and meet security requirements. In addition, auditors found the institute has adequate protection policies in place and a plan to make mandatory notifications when ePHI is lost or stolen. However, auditors identified some improvement opportunities. http://osc.state.ny.us/audits/allaudits/093015/14s67.pdf

State Universityof New York - Selected Procurement and Contracting Practices

SUNY officials have generally established good internal controls over procurement and have effectively communicated these procedures to the campuses. Tests at seven campuses and system administration, however, found they don’t consistently follow some of these procurement policies. For example, of 924 procurements reviewed, 97 inthe $500 to $250,000 range and totaling more than $1.1 million lacked required documentation to demonstrate that the price was reasonable. Auditors also identified some campus practices that go beyond SUNY’s requirements to manage cost and could serve as best practice examples if more widely shared among the campuses. http://osc.state.ny.us/audits/allaudits/093015/14s19.pdf