A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Andino v Mills, 2018 NY Slip Op 04273, Court of Appeals

Does a retired New York City police officer's accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree's jury award for future lost earnings and pension?

The Court of Appeals held that a New York City retired police officer's accident disability retirement (ADR) benefits does so operate by [1] replacing earnings during the period when the officer could have been employed absent the disabling injury and then [2] serving as pension allotments. Accordingly, a court must offset the retiree's projected ADR benefits against the jury award for both categories of economic loss.*

Niurka Andino [Plaintiff] is a retired police officer who was injured on duty while riding in a police car that collided with a vehicle owned by the New York City Transit Authority (NYCTA) and operated by NYCTA employee Ronald Mills [Defendants].

Defendants moved to offset the jury award pursuant to CPLR §4545, which permits a court to find that certain awarded damages were or will, with reasonable certainty, be replaced or indemnified from a collateral source. Defendants contended that "when a police officer retires due to an on-the-job injury that leaves the officer disabled, the ADR benefits allotted to that officer for those years when the officer could have been working, if not for the disability, operate as lost earnings. Once the retired officer reaches the age for regular retirement from service, absent the retirement-inducing injury, ADR benefits serve as a pension."

Andino argued that [1] "there is no direct correspondence between her ADR benefits and the categories of economic loss awarded by the jury" and [2] "that ADR displaces Ordinary Disability Retirement (ODR), and the higher amount of ADR benefits as compared with ODR allotments is paid as a reward for services previously rendered." As the Court of Appeals characterized Andino's argument, "... the premium in ADR benefits as compared to ODR benefits is neither "earnings" nor "pension" but paid in gratitude for past services".

The Court of Appeals explained that ADR benefits, and the text and legislative intent of CPLR §4545, as interpreted by the court in Oden v Chemung County, 87 NY2d 81,** provide the basis for concluding that "ADR benefits operate sequentially as payment for future lost earnings and pension benefits." Accordingly, said the court, on a motion pursuant to CPLR §4545, "a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension."

The court also rejected Andino's alternative argument that "ADR benefits are a 'reward' for the retiree's service which may not be offset against a jury award" as unpersuasive, explaining that "there is no support in the Administrative Code or CPLR §4545 or any available legislative history to treat ADR benefits as a category on its own, exempt from mandatory offset." In any event, said the court, "even if the Legislature sought to reward service members like Andino, who suffer an injury in the line of duty, that would not change the classification of ADR benefits as a replacement for lost earnings and pension allowances" as there is no legal justification for treating a portion of ADR benefits as a reward based on the 25% differential between ODR and ADR benefits. In the words of the Court of Appeals, "CPLR 4545 anticipates a dollar-for-dollar  offset" and that offset "is based on the category of reimbursement, not on a stratification of the collateral source total amount."

The case was remitted Supreme Court for further proceedings "in accordance with the opinion herein and, as so modified, affirmed," Judges Wilson dissenting in an opinion in which Judge Fahey concured.

* By stipulation, the parties agreed to set the period for future lost earnings at 19.24 years and future lost pension at 17.7 years.

** The specific facts of Oden, said the court, explain why that decision provides a different disposition than is called for Andino's case. In Oden, the plaintiff's private sector retirement pension benefits could not offset the jury's award for his future lost earnings because the pension allotments did "not necessarily correspond to any future earning capacity plaintiff might have had," because Oden "would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04273.htm

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Guzman v Bratton, 2018 NY Slip Op 03648, Appellate Division, First Department

Applying the preponderance of the evidence standard, the hearing officer found Petitioner, a New York City police officer, guilty of both specifications set out in the disciplinary charges filed against Petitioner. The penalty recommended by the hearing officer: to imposed on the Petitioner: dismissal from employment.

The appointing authority adopted the findings and recommendation of the hearing officer and dismissed Petitioner from the New York Police Department.

Petitioner appealed, contending, among other things, that the hearing officer applied the "preponderance of the evidence" standard in determining finding Petitioner guilty of the disciplinary charges filed against him instead of applying the "substantial evidence standard."

The Appellate Division noted that the "preponderance of the evidence standard" used by the hearing officer in determining that Petitioner was guilty of the disciplinary charges and specification is a higher standard than the substantial evidence standard that Petitioner argued should have been employed by the hearing officer.

Thus, said the court, "contrary to Petitioner's claims," the appointing authority relied upon the hearing officer's findings based on a higher, rather than lower, standard of proof in adopting the hearing officer's findings and the hearing officer's recommendation as to the penalty to be imposed.

Addressing the penalty imposed on Petitioner, termination from his position, the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, explained that the court reviewing an administrative disciplinary action must uphold the sanction imposed by the appointing authority "unless it is so disproportionate to the offense that it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Here, opined the court, "the penalty of termination of employment is not disproportionate to the misconduct and does not shock the conscience" in view of the fact that Petitioner was found guilty of two acts of serious misconduct, which adversely affected the integrity of the Police Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03648.htm

Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm

Authority of the arbitrator

Authority of the arbitrator

City of New York v District Council 37, 2018 NY Slip Op 03220, Appellate Division, First Department

Supreme Court granted the City of New York's petition to vacate an arbitration award, denied the grievance, and dismissed this proceeding the City brought pursuant to CPLR Article 75. The Appellate division unanimously affirmed the Supreme Court's ruling.

The court explained that an arbitrator exceeds his or her powers when the "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

However, the fact that there is a provision in a contract that the arbitrator may not alter or modify does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the intent of the parties.

In contrast, an arbitration award should be vacated where it is not derived from the contract but from the deliberate and intentional consideration of matters outside the contract.

Here, said the Appellate Division, the record shows that the arbitration award added to or modified the collective bargaining agreement as the arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

This exceed the arbitrator's powers as such an action was expressly prohibited in the agreement

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03220.htm

Distinguishing between an individual's "domicile" and his or her "residence"

Distinguishing between an individual's "domicile" and his or her "residence"

Campaniello v New York State Div. of Tax Appeals Trib., 2018 NY Slip Op 03400, Appellate Division, Third Department

From time to time an applicant for public employment or an employee is required to be "domiciled"* with the physical jurisdiction of the employer. In some instances there is some confusion between the individual's "domicile" and his or her "residence"** for the purpose of qualifying for employment with the employer with respect to the requirement that the individual be a "resident" rather than be domiciled within the physical jurisdiction of the employer.

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location.

In Campaniello the Appellate Division explained that a person's domicile "is the place which an individual intends to be such individual's permanent home ... " for it is well-settled that "domicile is established by physical presence in a particular locality coupled with the intent to remain." Further, once a domicile is established, it "continues until the individual in question moves to a new location with the bona fide intention of making such individual's fixed and permanent home there."

Should an individual seek to establish a change in domicile, it was that individual's burden to prove his or her change of domicile by clear and convincing evidence.

Below are selected court decisions that considered one or more aspects of a "residence requirement" for appointment to a position in the public service or for an individual's "continuation" in his or her public employment."

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department,

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

Terminated employees challenge City’s requirement that employees be domiciled within its jurisdiction
Matter of Ball v City of Syracuse, 60 AD3d 1312; Motion for leave to appeal denied, 63 AD3d 1671

The decision is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html

Determining “continuous residency” for the purpose of qualifying for public office or employment

Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals
The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department 

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Automatic termination from public office by operation of law
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]

The decision is posted on the Internet at:

https://law.justia.com/cases/new-york/court-of-appeals/1999/92-n-y-2d-781-0.html

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), Supreme Court, Wayne County, Docket Number: 71473/2010, Judge Dennis M. Kehoe [Not selected for publication in the Official Reports]

The Allen decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf

* See, for example, §3.2 [et seq.] of the Public Officers Law with respect to excusing certain employees from complying with a residence requirement set by a political subdivision of the State.

** An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. [See also an earlier decision involving this issue at http://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html.]

The Campaniello decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03400.htm