Proper and timely service of an action critical to going forward with the lawsuit

Proper and timely service of an action critical to going forward with the lawsuit

Angletti v Morreale, 2015 NY Slip Op 06647, Court of Appeals

Marcus Morreale initially declined to be designated as a candidate for the County Legislature, Niagara County, thereby creating a vacancy. Subsequently Morreale consented to be designated as the substitute candidate to fill the vacancy created by his own declination of the earlier designation and the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the candidate for the office.

Frances J. Angletti filed a formal objection to Morreale’s nomination with the County Boardof Elections but his objection was rejected by the Board.

The Court of Appeal’s decision notes that Angletti next commenced a proceeding in Supreme Court seeking to invalidate the Morreale “designating petition” and to enjoin the Board from placing Morreale's name on the ballot. Supreme Court signed an order to show cause dated the same day, July 22, 2015, authorizing service on Morreale by one of ten methods permitted.

Angletti utilized "nail and mail" service under the order to show cause, was required to affix the papers to the door of Morreale's residence "AND [enclose] the same in a securely sealed and duly prepaid wrapper addressed to [Morreale] at the address set forth in his . . . designating petition, and depositing the same with a depository of the United States Postal Service via Express Mail on or before the 23rd day of July, 2015."

Morreale answer to Angletti’s action raising several affirmative defenses, including the representation that Angletti’s action was not timely commenced.**

Supreme Court granted Angletti’s petition and ordered the Board to strike Morreale's name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced. However, the Court of Appeals, for reasons explained in its decision, elected to address with specificity only the issue upon which the dissent in the Appellate Division was grounded,*** inasmuch as it held that Morreale's other arguments were “without merit.”

The court explained that under Election Law §16-116, a petitioner is required to provide notice "as the court or justice shall direct," and "this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced."

Agreeing with the courts below that this proceeding was properly commenced in a timely manner, the Court of Appeals said that here “there is no dispute that [Angletti] complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23.”

Although Morreale argued that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period, the court disagreed, noting that “where the instrument of notice has been delivered by another prescribed method within the statutory period,” it has rejected such contentions concerning mailing, citing Serri v Heffernan , 298 NY 629.

As to “nailing” the papers, the Court of Appeals said that a decision that Morreale cited involving “nail and mail,” the papers [1] “were nailed to the outside wall of the residence instead of the door” and [2] the attempted service by mail on the final day "was inadequate and ineffectual to institute the proceeding."

In contrast, the Court of Appeals found that in Angletti’s situation, the instrument of notice had been properly nailed to Morreale’s door and delivered prior to the deadline.

Thus, said the court, the order of the Appellate Division should be affirmed.

* Nail and mail service requires the posting of the action on the door of the person's home and mailing a copy of the papers to the appropriate mailing address.

** July 23, 2015 was the last day to commence the proceeding under the 14-day period authorized by Election Law (see Election Law §16-102 [2]).

*** Two Appellate Division Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06647.htm

The five most read NYPPL cases summaries as of August 31, 2015

Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education

Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education

Endrew F. V Douglas County School District RE-1, USCA, 10^thCircuit, Docket #14-1417

Federal law requires public schools to provide students with disabilities a free and appropriate education. If a school cannot meet the educational needs of a disabled student, the student’s parents can place the child in private school and seek reimbursement of tuition and related expenses.

Parents of an autistic child, believing that the child’s educational progress at the  Douglas County [Colorado] School District [District], was not meeting his needs, withdrew the student from the District and placed him with another facility, Firefly Autism House, a private school that specializes in educating autistic children. The parents then asked the District to reimburse them for tuition and related expenses in accordance with federal law.

The District denied their request and a hearing was held before an administrative law judge [ALJ].  The ALJ found that the parents were aware of their child’s progress and fully participated in his education and upheld the District’s decision denying reimbursement.

A federal district court subsequently sustained the administrative ruling, which decision was affirmed the Tenth Circuit Court of Appeals.

The circuit court explained that the record showed that the administrative law judge found that the student received some educational benefit while in the District’s care and that such a finding was “enough to satisfy the District’s obligation to provide a free appropriate public education” under federal law. In the words of the circuit court, “the District did not violate the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA), and is not required to reimburse the cost of the student’s private-school education.” Citing Florence Cty., 510 U.S. at 15, the circuit court noted that “Parents who take unilateral action, however, ‘do so at their own financial risk.’”

The decision is posted on the Internet at:

https://www.ca10.uscourts.gov/opinions/14/14-1417.pdf

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015
Click on text highlighted in color to access the complete report

Public Financing of Elections urged by State Comptroller

New York State Comptroller Thomas P. DiNapoli’s op-ed, “New York Should Opt into Public Financing of Elections” was published in The Albany Times Union, urging the state Legislature to pass comprehensive campaign finance reform in New York, including public funding of elections for all state offices.

http://www.osc.state.ny.us/press/releases/aug15/082615.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082615release

July 2015 State’s Cash Report issued by State Comptroller

Tax revenues through the first four months of the state’s fiscal year came in $17.7 million lower than the Division of the Budget’s latest projections but more than $1 billion higher than originally forecasted, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli. The General Fund balance remains high compared to historical levels, with $9.6 billion at the end of July, $25.2 million higher than the latest projections.

http://www.osc.state.ny.us/press/releases/aug15/082715.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082715release

State Contract report for the month of July 2015

State Comptroller Thomas P. DiNapoli announced his office approved 1,693 contracts valued at $1.1 billion and approved more than 1.8 million payments worth approximately $8 billion in July. His office also rejected 204 contracts and related transactions valued at $356 million and nearly 2,000 payments valued at approximately $3 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/aug15/082515.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082515release

Employee disciplined for failure to follow employer's policy

Employee disciplined for failure to follow employer's policy

OATH Index No. 1051/15

An ultrasound technologist was charged with failing to properly identify a patient and performing an ultrasound test on the wrong on the patient.

OATH Administrative Law Judge Kevin F. Casey sustained the charges. Evidence showed that the technician did not follow hospital policy for identifying patients, which requires using two methods to verify a patient's identity, and as a result performed an ultrasound on the wrong patient.

The technician realized his mistake after the examination had been completed and reported it to his supervisor.

That no one was injured and the mistake was immediately reported was outweighed by the technician's record of poor performance.

The ALJ concluded that a hospital does not have to wait for a patient to be injured before taking disciplinary action and recommended the termination of the employee.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1051.pdf

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