Defamatory statements

Defamatory statements

Camaj v Plassmann, 2017 NY Slip Op 03473, Appellate Division, Second Department

Supreme Court granted the plaintiff's motion for summary judgment for alleged liable after determining that the defendant had defamed the plaintiff by publishing false statements about him.

The court, after a nonjury trial on the issue of damages, determined that the plaintiff was entitled to compensatory damages in the principal sum of $25,000 and punitive damages in the sum of $10,000.

The Appellate Division affirmed the lower court's ruling, holding that "[i]n light of the nature of the defamatory statements, the fact that they were published to employees of the school district in which the plaintiff was employed and were repeated by students, and the evidence of the emotional distress caused to the plaintiff, the awards for compensatory and punitive damages were proper."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03473.htm

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court

Retired judges may not simultaneously drew both a full judicial salary and a full pension upon certification for further service as a Justice of the Supreme Court

Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, Court of Appeals

The Chief Administrative Judge signed an administrative notice declaring that the policy of the Administrative Board of the Courts of the State of New York [Board] henceforth would be that "no judge . . . certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115* may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System."

The policy was grounded on the Board's belief that judges who simultaneously drew both a full judicial salary and a full pension, typically referred to as "double-dipping," adversely affected both the public's impression of the court system and the court system's negotiations with the other branches over crucial budgetary and personnel matters.

While three retired Supreme Court Justices' [Plaintiffs] applications were pending "certification," the Board released an administrative order reflecting this policy and gave notice that it would no longer certify applicants who would, on reappointment, choose to receive both a retirement allowance for prior judicial service and their salary as a certified justice. Subsequently a memorandum from the Office of the Chief Administrative Judge clarified the situation, indicating that retired Justices otherwise approved for certification would be certified only if they deferred receipt of their New York State pensions until their judicial service ended.

Plaintiffs filed an Article 78 petition seeking an order annulling the policy. Supreme Court dismissed their petition for failure to state a claim and declared the Board's policy to be neither illegal nor unconstitutional. Plaintiffs appealed to the Appellate Division, which reversed the lower court and granted the petition. The Appellate Division held that  the Board's administrative order "violated the New York Constitution, the Judiciary Law, and the Retirement and Social Security Law."

The Board appealed the Appellate Division's ruling and the Court of Appeals reversed the Appellate Division's decision "Because the Board enjoys nearly unfettered discretion in determining whether to certify a retired Justice, and because its decision here was not contrary to any law or constitutional mandate raised by Plaintiffs."**

The Court of Appeals decision notes that "New York's public policy strongly disfavors the receipt of state pensions by persons also receiving state salaries, citing §150 of the Civil Service Law as establishing New York State's general public policy against the simultaneous receipt of a state pension and a state salary.

§150 provides that "Except as otherwise provided by sections one hundred one, two hundred eleven, and two hundred twelve of the retirement and social security law*** . . . if any person subsequent to his or her retirement from the civil service of the state . . . shall accept any office, position or employment in the civil service of the state . . . to which any salary or emolument is attached . . . any pension or annuity awarded or allotted to him or her upon retirement, and payable by the state . . . or out of any fund established by or pursuant to law, shall be suspended during such service or employment and while such person is receiving any salary or emolument therefor [sic] except reimbursement for traveling expenses."

Further, said the court, §101(c) of the Retirement and Social Security Law provides that  "In the event that a judge or justice shall ... [h]ave retired and is receiving a retirement allowance from this retirement system, or another retirement system of which he [or she] was a member, and . . . [b]e certified for service as a justice of the supreme court pursuant to section one hundred fourteen or one hundred fifteen of the judiciary law, his [or her] retirement allowance shall cease" (emphasis supplied in the opinion).

In this action, said the Court, the issue presented is whether the Board's policy is rationally related to whether certification is "necessary to expedite the business of the court." The Court of Appeals, per curiam, concluded that this prospective rule was necessary, reversing the order of the Appellate Division and reinstating the judgment of Supreme Court.

* §115 of the Judiciary Law provides that a retired Court of Appeals Judge or Supreme Court Justice, if otherwise eligible for such certification, may perform the duties of a Supreme Court Justice if the services "of such . . . justice are necessary to expedite the business of the court and that he or she is mentally and physically able and competent to perform the full duties of such office."

** Citing Marro v Bartlett, 46 NY2d 674, the Court of Appeals noted that "[p]rovided it complies with the two criteria set forth in the Constitution, and absent proof that its determination violates statutory prescriptions or promotes a constitutionally impermissible purpose, the Board's authority is not subject to judicial review."

*** §212.1 of the Retirement and Social Security Law provides, in pertinent part, "there shall be no earning limitations under the provisions of this section on or after the calendar year in which any retired person attains age sixty-five."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03558.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 6, 2017 

Source: Office of the State Comptroller 

Audit Questions Payments Made to Supportive Housing Provider

An audit issued today by New York State Comptroller Thomas P. DiNapoli has identified $32,271 in unallowable expenses and $489,616 in questionable costs that were paid by the state Office of Mental Health to an Altamont, N.Y. company that serves as a supportive housing provider for New Yorkers with mental illness.

 
Municipal Audits released:

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of: 

Franklin Square and Munson Fire District– Non-Firefighting Vehicles; 

Greater Syracuse Property Development Corporation – Enforcement Mortgages; 

Village of Mayfield – Water and Sewer Operations; 

Village of Newport – Financial Management; and the 

Wassaic Fire District – Purchasing and Claims Processing 

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure of the individual to timely execute his or her oath of office upon election to his or her  public office results in the position becoming vacant by operation of law

Appeal of Oscar Cohen, Decisions of the Commissioner of Education, Decision No. 17,075

§30(1)(h) of the Public Officers Law provides that an incumbent’s office “shall be vacant upon ... [an incumbent’s] refusal or neglect to file his [or her] official oath ... before or within thirty days after the commencement of the term of office for which he [or she] is chosen, if an elective office ....”1

§2108 of the Education Law provides that a district clerk is obligated to inform a successful electoral candidate of his or her election in writing and further provides that  “[t]he presence of any such person at the meeting which elects him [or her] to office, shall be deemed a sufficient notice to him [or her] of his [or her] election.”

Sabrina Charles-Pierre ran for, as was elected to, membership on the Board of Education of the East Ramapo Central School District [Board]. She was present at a Board meeting on May 17, 2016 at which the unofficial "election results" revealed that she had won election to the Board.

Ms. Charles-Pierre subsequently attended a June 7, 2016 Board meeting at which the final election results were certified and accepted by the Board. At the Board's reorganization meeting on July 14, 2016, the district clerk administered the oath of office to Ms. Charles-Pierre.  Shortly thereafter the Board determined that at the result of  "an administrative timing error,” Ms. Charles-Pierre’s oath of office had been administered to her more than 30 days after she had been elected to her position and, consequently, by operation of law her seat was deemed vacant.2

On July 26, 2016, the Board held a special meeting and appointed Ms. Charles-Pierre to the seat it had earlier declared vacant until the Board’s next annual meeting and election in May 2017.

Oscar Cohen appealed the Board's action contending that its determination that Ms. Charles-Pierre’s position became vacant was arbitrary and capricious. Mr. Cohen claimed that the 30-day time period for taking and filing the oath of office imposed by Public Officers Law §30(1)(h) did not commence “until Ms. Charles-Pierre receive[d] formal notice of the election results.”3 Mr. Cohen, "upon information and belief," argued that Ms. Charles-Pierre never received such written notice.  The remedy sought by Mr. Cohen: an order by the Commissioner "restoring" Ms. Charles-Pierre to her two-year elected term, which would run through June 30, 2018.

While the Board admitted that it failed to provide Ms. Charles-Pierre with written notice of her election, it pointed out that she was present at the May 17, 2016 and June 7, 2016 Board meetings “where the election results were announced and confirmed, respectively.”  Notwithstanding this defense, the Board had “joined” Mr. Cohen in his request to reinstate Ms. Charles-Pierre to her elected term.

However, the Commissioner dismissed Mr. Cohen's appeal as moot, taking "judicial notice"4 that Chapter 5 of the Laws of 2017, effective February 1, 2017, excused Ms. Charles-Pierre’s failure to file her official oath within the statutorily prescribed period, provided that she filed her oath of office within 30 calendar days of the effective date of that act. Ms. Charles-Pierre had, in fact, timely filed her oath of office on February 7, 2017, which is within the 30-day period specified in Chapter 5.

1 Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

2 The failure to file a timely oath cannot be cured by subsequently filing the required oath, Informal Opinion of the Attorney General, 86-41.

3 "Where ... the individual was present at the board meeting at which he was appointed and thus had actual notice of his appointment, written notice thereof was not required to commence the 30-day period," McDonough v Murphy, 92 AD2d 1022, affirmed 59 NY2d 941.

4 Judicial notice is the recognition by a judicial body or an individual acting in a judicial capacity of a fact that is not reasonably disputable and without the introduction of supporting evidence.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17075

Determining when "actual notice," in contrast to "constructive notice," of an administrative action is required to trigger the running of the Statute of Limitations for filing an Article 78 action

Determining when "actual notice," in contrast to "constructive notice," of an administrative actionis required to trigger the running of the Statute of Limitations for filing an Article 78 action

Knave v West Seneca Cent. Such. Dist., 2017 NY Slip Op 03416, Appellate Division, Fourth Department

The collective bargaining agreement between the West Seneca Central School District [District] and the employee organization representing certain employees provided that upon retirement employees in the collective bargaining unit "could enroll in the same Blue Cross/Blue Shield health insurance and Guardian dental insurance plans available to the District's then current employees, at their own expense."

When the District sent an undated letter to its retired employees of under the age of 65 [Petitioners] advising them that it would discontinue its practice of offering "Under Age 65 retirees" the opportunity to enroll in the same plans that were available to its active employees, Petitioners challenged the District's action and sought a court order annulling the District's discontinuation of its "Under Age 65 retirees" practice.

The District moved to dismiss Petitioners' Article 78 action contending it was untimely. The District advanced the theory that the statute of limitations had began to run when it issued the undated letter addressed to the Petitioners, which action constituted "constructive notice" of the discontinuance of their participation in the District's health insurance plan.

The Appellate Division said that applying the date of mailing of the undated letter in a constructive notice test argument, as the District contended, requires a judicial determination, as a threshold matter, that the administrative determination at issue was "quasi-legislative" in nature.

A quasi-legislative-type administrative determination is one having an impact "far beyond the immediate parties at the administrative stage." The court explained that where a quasi-legislative determination is challenged, "actual notice of the challenged determination is not required in order to start the statute of limitations clock" ticking as the policy underlying the rule is that actual notice to the general public is not practicable. Thus, said the Appellate Division, the statute of limitations begins to run once the administrative agency's quasi-legislative determination concerning the matter at issue became "readily ascertainable" to the complaining party.

In contrast, where the public at large is not impacted by an administrative determination, actual notice, commonly in the form of the receipt of a letter or other writing containing the final and binding administrative determination is required to be delivered to the parties affected to commence the running of the statute of limitations.

The Appellate Division found that the only evidence in the record with respect to the determination to discontinue the practice affecting "Under Age 65 retirees" was the undated letter that was signed by the District's "Assistant Superintendent, Human Resources." The letter, however, made no mention of any meeting of, or resolution by, the West Seneca Central School District Board of Education at which the participation of "Under Age 65 retirees" in active employees' the health insurance plan was discussed or voted upon nor did the letter set out the authority, if any, upon which Assistant Superintendent relied upon in issuing the letter.

In the words of the Court, the District "wholly failed to submit any evidence establishing the process that resulted in the issuance of the undated letter, and the record is otherwise devoid of any evidence of the nature of the process giving rise to the determination. In our view, all of those facts and factual shortcomings are critical to the analysis."

Noting that the determination clearly had no impact upon the public at large, the court said that the District failed to establish that actual notice to the affected persons would be impracticable or unduly burdensome.

Thus, the Appellate Division concluded that the District [1]2 failed to meet its burden of establishing that  the challenged determination affecting the "Under Age 65 retirees" was "quasi-legislative" in nature and [2] failed to meet its burden of showing that the "readily ascertainable" constructive notice test should be applied here.

Concluding that Petitioners had filed a timely Article 78 action, the Appellate Division provided the District with 20 days "from service of the order of this Court with notice of entry" to serve and file an answer to the Article 78 petition and remanded the matter to Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03416.htm