In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, Appellate Division, Second Department

Constance Kaplan was serving with the New York City Department of Health and Mental Hygiene [HMH] as a temporary worker. She alleged that after notifying HMH that she had been sexually harassed by her supervisor during a training session and intended to sue under the relevant human rights laws she was terminated from her position. She also alleged that her dismissal constituted reprisal for taking action to seek redress for the supervisor’s alleged sexual harassment.

Supreme Court granted HMH’s motion to dismiss Kaplan's petition alleging sexual harassment pursuant to New York City’s Human Rights Law “for failing to state a cause of action." The court granted HLMH's motion after determining that Kaplan's failed to show that the behavior of her supervisor "constituted more than a petty slight or trivial inconvenience"

The Appellate Division disagreed with Supreme Court’s ruling and said that the lower court should have given Kaplan’s complaint a liberal construction and accepted all facts alleged in the complaint to be true. Further, said the court, a contention that the behavior being complained of “was a petty slight or trivial inconvenience” constituted an affirmative defense, which should be raised in HMH’s answer, and did not lend itself to a pre-answer motion to dismiss. 

A motion to dismiss, said the Appellate Division, “merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action.”

The Appellate Division also found that Supreme Court erred in dismissing Kaplan’s cause of action alleging retaliation within the meaning of both the State’s and the City’s human rights laws. 

Kaplan had alleged in her complaint that her employment was terminated approximately two weeks after she informed HMH of her claims of sexual harassment and advised it of her intent to sue. Viewed in the light most favorable to Kaplan, the Appellate Division concluded that these allegations stated a cause of action alleging retaliation within the meaning of the State’s Human Rights Law and New York City’s Human Rights Law, the latter being "more liberal that its state counterpart.”

HMH had also submitted several emails in support of its motion to dismiss which it contended established that Kaplan was not discharged from her employment. 

The Appellate Division said that the emails submitted by HMH did not establish that Kaplan’s allegation that she was discharged from her employment “is not a fact.” Again the Appellate Division found that “Supreme Court erred in determining that emails from [Kaplan] and her temporary employment agency constituted party admissions and were admissible under an exception to the hearsay rule,” as the emails HMH relied upon were not inconsistent with Kaplan’s position that she was terminated from her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06063.htm

LawBlogs with a New York State focus

LawBlogs with a New York State focus

Source: Justia Practice Areas

Justia reports on 6,536 Blawgs in 74 subcategories of which there are 303 New York State LawBlogs listed.

The most popular NYS LawBlog "for all time" was “Real Estate Law Blog,” rank number 11 the 6.536 LawBlogs Justia follows.. It’s current postings are listed at: http://www.nyrealestatelawblog.com/

You may check out all the current NYS LawBlog listings on Justia “for all time” at

http://blawgsearch.justia.com/blogs/countries/united-states/new-york?page=1&sortby=popularity&dispmode=expanded&popmode=all

and quickly sign-up to “subscribe” to any LawBlogs of interest via a daily “feed” to receive postings on a continuing basis using the link provided for each LawBlog.

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Human Resources Admin. v Charleman, OATH Index No. 1653/16

In disciplinary proceeding conducted in accordance with §75 of the Civil Service Law,  New York City Office Of Administrative Trials And Hearings Administrative Law Judge Susan J. Pogoda recommended the termination of the employment of Desiree Charleman, an eligibility specialist with the New York City Human Resources Administration [HRA], after finding her guilty of failing to report her arrest for shoplifting, her fraudulently accepted food stamps, and her failing to report acceptance of public assistance rent checks from her sister. Judge Pogoda explained that Charleman’s dishonesty did not comport with the duties of her job.

The ALJ noted that the penalty of termination was recommended in a number of other similar disciplinary action such as in OATH Index No. 1381/03 in which the employee was terminated for failing to report purchase of rental income property as required by agency rules and OATH Index Nos. 542/99, in which three employees who failed to report income and received from $3,000 to $11,000 in public assistance to which they were not entitled.

Although Charleman had expressed remorse over her actions, Judge Pogoda found that while she was specifically informed when she was hired that, as a public assistance client she had an obligation to immediately inform her caseworker of her employment, she failed to do so. Also, said the ALJ, Charleman’s defense that she made mistakes because she was preoccupied with family issues during the relevant time period was inconsistent with her statement to an investigator that “she didn’t know why she kept redeeming the benefits”. In addition, Judge Pogoda found that although Charleman was subsequently notified by a mailed notice of a $600 recoupment claim for benefits, she continued to access her benefits without informing her caseworker of her current income.

The ALJ concluded that Charleman’s acceptance and redemption of benefits for up to nine months after she was employed by HRA, “when she must have known that she was not entitled to them, suggests a high level of dishonesty that is incompatible with continuing to be employed to manage public assistance benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1653.pdf

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Boston police officer union denied injunction to temporarily block body-worn camera test

Boston police officer union denied injunction to temporarily block body-worn camera test

By Dave Strausfeld, J.D.

Posted in Wolters Kluwer's WorkDayhttp://www.employmentlawdaily.com/

A union of Boston police officers was not entitled to an injunction to temporarily block implementation of a pilot program to test body-worn cameras, held a Massachusetts Superior Court judge. While the union sought the injunction to maintain the status quo during arbitration of the union’s grievance over the manner in which the body camera pilot program was implemented, the union did not show a likelihood of success on the merits of the case, especially because a Massachusetts statute grants police commissioners significant non-delegable control over officers’ uniforms and equipment. And the union did not make a showing of irreparable harm: While a recent Rand Corporation study indicated that body cameras are associated with increased assaults against police, other studies have reached different conclusions (Boston Police Patrolmen’s Association, Inc. v. City of Boston.

Mr. Straisfeld’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/boston-police-union-cant-get-body-camera-program-temporarily-enjoined/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

New York State Joint Commission. on Public Ethics v Campaign for One N.Y., Inc., 2016 NY Slip Op 26290, Supreme Court, Albany County, Denise A. Hartman, J.

The New York Joint Commission on Public Ethics (JCOPE) commenced a proceeding in Supreme Court, Albany County, to compel Campaign for One New York, Inc. (Campaign) to comply with  non-judicial subpoena duces tecum that it issued in 2015 and in 2016 pursuant to Executive Law §94.

Campaign cross-moved for a protective order limiting production of certain documents demanded pursuant to the 2015 subpoena and to quash the 2016 subpoena.

Finding that JCOPE has established that it had the authority to issue both subpoenas, Judge Hartman addressed a number of issues raised by Campaign in objecting to the production of certain of the documents demanded pursuant to the subpoenas including the application of the Deliberative Process Privilege; protection as a Proprietary Trade Secret; the Attorney-Client Privilege; the Attorney Work Product privilege; and the Common Interest Doctrine

The Deliberative Process Privilege

Campaign asked the court to shield 41 documents pursuant to the deliberative process privilege. However, said the court, as Campaign is not a governmental agency, it does not have the right to assert the deliberative process privilege explaining that the privilege is a common law privilege that has been codified as an exception to FOIL.

As so codified,  the privilege shields from FOIL disclosure inter-agency or intra-agency materials that are prepared to assist a government agency's substantive decision-making process and, citing Matter of World Trade Ctr. Disaster Site Litigation, 2009 WL 4722250, the court noted that the privilege has also been applied to protect documents containing "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" for the purpose of "enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government."

While the language of FOIL only protects inter-agency and intra-agency materials, the Court of Appeals has extended the privilege to materials prepared for a government agency, at its request, "by an outside consultant."* As the privilege protects the deliberative processes of the government agency it affects, it must be invoked by that agency and not the private entity acting on the agency's behalf. In so doing, the governmental agency invoking the privilege must demonstrate "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be" and the court must balance the agency's interests against the interests mitigating in favor of disclosure. 

Proprietary Trade Secrets

Addressing Campaign’s contention that certain documents were  privileged as “trade secrets,” the court said that typically proprietary trade secrets will be shielded from disclosure "except to the extent that [disclosure] appears to be indispensable for ascertainment of the truth." Citing Ashland Management Inc. v Janien, 82 NY2d 395, the court said that “[a] proprietary trade secret is ‘any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it’” and “[a] conclusory statement in an attorney's affidavit that a document contains trade secrets is insufficient to meet the burden required to assert the privilege.”

Attorney-Client Privilege

Campaign also asserted that eight documents sought by JCOPE were protected by the attorney-client privilege. The court ruled that six were not protected because they were disclosed while a third party was present and that Campaign did not demonstrated that the remaining two were predominantly of a legal character.

While the attorney-client privilege prevents confidential communications made between the attorney and the client in the course of professional employment from being disclosed "[t]he party asserting the privilege bears the burden of establishing its entitlement to protection by showing [1] that the communication at issue was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship, [2] that the communication is predominantly of a legal character, [3] that the communication was confidential and [4] that the privilege was not waived." In any event, said the court, such a communication is not confidential if it is "made in the presence of third parties, whose presence is known to the client." 

Attorney Work Product

Campaign claimed that eight documents were exempt from disclosure under the “attorney work product doctrine.”  Noting that the party asserting the doctrine has "the burden of demonstrating that particular items are exempt or immune from disclosure ... the mere assertion that items constitute attorney's work product ... will not suffice," the court said that “[f]our of the documents appear, even from the scant descriptive information provided by Campaign, to fall outside the ambit of the privilege” and “the Court will conduct an in camera** review to determine whether the privilege applies.”

 Common Interest Doctrine

The court ruled that Campaign could not use the common interest doctrine to shield  any of the documents at issue from disclosure, explaining that the common interest doctrine extends attorney-client privilege in the presence of a third party where "attorney-client communications . . . are revealed to one another for the purpose of furthering a common legal interest," but it is limited to "disclosure ... deemed necessary to mount a common claim or defense." 

* Matter of Xerox Corp. v Town of Webster, 65 NY2d 131

** In private.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_26290.htm