Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Vassenelli v City of Syracuse, 2018 NY Slip Op 02957, Appellate Division, Fourth Department

This decision arose in the course of an appeal from an order of the Supreme Court that vacated a temporary restraining order [TRO] and denied the application of Nicholas L. Vassenelli to waive the requirement of an undertaking in consideration of the granting of a preliminary injunction.

Vassenelli, a City of Syracuse [City] disabled and retired police officer, sustained a spinal cord injury in 2003 and was awarded benefits pursuant to General Municipal Law §207-c.* From March 2013 to March 2016, City paid Dignity Plus, Inc. [Dignity], a home healthcare agency, assigned home health aides to provide assistance to Vassenelli in his home. While nurses also assisted home health aides as necessary, neither registered nurses nor licensed practical nurses were assigned to care Vassenelli in his home 24 hours per day.

In February 2016, Dignity notified the City that Vassenelli was in need of a heightened level of care that would approximately double the cost of Vassenelli 's services from Dignity and Dignity notified the City that it intended to terminate providing Vassenelli  with services on March 20, 2016unless the City agreed to the increased level of care and cost. The City and Dignity were unable to reach a new agreement, and Vassenelli brought this action alleging that the City wrongfully denied the payment of and obstructed him from receiving certain medical care.

Supreme Court scheduled a hearing on Vassenelli's application for a preliminary injunction and granted a TRO, requiring the City "to continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home."

At the conclusion of the hearing on a preliminary injunction, Vassenelli made an oral motion alleging that the City had failed to provide him with the nursing services required by the TRO and requesting "that the [the City therefore] be found in contempt." After the hearing, the Supreme Court granted the preliminary injunction on the condition that Vassenelli post an undertaking pursuant to CPLR 6312 and stated that the City was entitled to a hearing on the oral motion alleging contempt.

Vassenelli then filed another order to show cause seeking a waiver of the undertaking and, in accordance with the prior oral motion alleging contempt, a finding that the City  had willfully disobeyed the TRO.

The City cross-moved seeking leave to reargue Vassenelli 's prior application for a preliminary injunction, denial of that application upon reargument and vacatur of the TRO to the extent necessary. Supreme Court issued an order denying the relief sought in Vassenelli 's second order to show cause and granting that part of the City's cross-motion seeking vacatur of the TRO.

The Appellate Division affirmed the Supreme Court's action, explaining that "[i]nasmuch as [Vassenelli] expressly requested injunctive relief under CPLR Article 63 based on the alleged failure of the City to act in accordance with the General Municipal Law,** [it] conclude that the [Supreme] court properly applied CPLR §6312(b)." The Appellate Division said the lower court "did not improvidently exercise its discretion in fixing the amount of the undertaking."

Addressing Vassenelli motion to hold the City in contempt, the Appellate Division, noting that the TRO required the City to "continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home," opined that "[i]nasmuch as the City had never previously paid for or provided [Vassenelli] with 24-hour skilled nursing care in his home, that language was unclear and equivocal, and it therefore could not serve as the basis for a finding of contempt."

* Subdivision 2 of §207-c of the General Municipal Law provides that "Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed."

** Subdivision 1 of §207-c of the General Municipal Law, with respect to the payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties, in pertinent part, provides as follows: "1. Any ... member of a police force ... who is injured in the performance of his [or her] duties or who is taken sick as a result of the performance of his [or her] duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness. Provided, however, ... the municipality shall not be liable for salary or wages payable to such policeman, or for the cost of medical treatment or hospital care furnished after such date as [certain] health authorities or physician shall certify that such injured or sick policeman has recovered and is physically able to perform his regular duties. Any injured or sick policeman who shall refuse to accept medical treatment or hospital care or shall refuse to permit medical inspections as herein authorized, including examinations pursuant to subdivision two of this section, shall be deemed to have waived his [or her] rights under this section in respect to expenses for medical treatment or hospital care rendered and for salary or wages payable after such refusal.... Notwithstanding any provision of law to the contrary, a provider of medical treatment or hospital care furnished pursuant to the provisions of this section shall not collect or attempt to collect reimbursement for such treatment or care from any such policeman ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02957.htm

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

New York Office of Administrative Trials and Hearings, OATH Index No. 181/18

A correction captain was charged with using unauthorized force against an inmate and making false statements.

The inmate claimed that he was secured and not resisting when the captain jabbed him with his baton; the captain and the escort officer contended that the inmate was unsecured and struggling with the officer when the captain jabbed him. A surveillance video of the incident was not produced at trial because the Department failed to preserve it and it was purged.

The investigator, based upon review of the video and witness statements, concluded that the inmate was not resisting and the force used by the captain was unauthorized.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls, however,  recommended dismissal of the charges, finding that the captain’s testimony was more credible than the inmate’s, which contained unsubstantiated allegations regarding his injuries and of being placed in a chokehold. Further, the ALJ found that the investigator’s report contained significant inconsistencies, inaccuracies and omissions, which called its reliability into question. Judge McGeachy-Kuls viewed the department for failing to preserve the video as a "negative inference"

The employer's failure to preserve the video tape referred to in this decision might be viewed as an aspect of "spoliation of evidence." Spoliation of evidence is the destruction or alteration of evidence that makes it unavailable for use in a judicial or quasi-judicial proceeding. Spoliation is presumed to be damaging to the spoliator's interest with respect to proving its claims or defenses when it is intentionally changed, modified, deleted or destroyed.

In Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, the Appellate Division addressed allegations of spoilation of evidence, noting that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed."

In contrast, in Thomas v Mt. Vernon P.D., 249 A.D.2d 483, motion to appeal denied, 94 N.Y.2d 763, the employee contended that the appointing authority  failed to preserve tape recordings of telephone calls that an employee believed would helpful to the employee's defense in a disciplinary hearing.

The Appellate Division found that the record failed to show that the loss of this tape was due to bad faith on the part of the appointing authority and that the tapes in question were routinely reused after 30 days, which was “well before any disciplinary charges were brought against the individual." The court also noted that “contrary to [the employee's] contention that the tape recording was the best evidence as to whether the subject telephone call was ever made, direct evidence on that issue was offered at the hearing from the alleged parties to the conversation."

Addressing the false statement charge brought against the correction captain, the ALJ said that the charge was based upon the captain’s report on the number of jab strikes against the inmate as “one or two” in one instance and “several” in another. At the disciplinary hearing the captain explained that he believed several to mean an unspecified number. ALJ McGeachy-Kuls recommended dismissal of the charge, finding the language to be imprecise, but not false or misleading.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-181.pdf

A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]

A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]
Sullivan v New York State Div. of Human Rights, 2018 NY Slip Op 02947, Appellate Division, Fourth Department 

Citing Matter of Mambretti v New York State Div. of Human Rights, 129 AD3d 1696, the Appellate Division addressed the issue of "probable cause" raised in this appeal. The court said the "[P]robable cause exists only when, after giving full credence to complainant's version of the events, there is some evidence of unlawful discrimination."

Following her involuntary transfer from a high school to an elementary school, Margaret Sullivan filed a complaint alleging unlawful discrimination with New York State Division of Human Rights [SDHR] the  pursuant to Executive Law §298, New York State's Human Rights Law.  SDHR, based on it investigation of Sullivan's complaint,  found that there was no probable cause to believe Sullivan's transfer was the result of unlawful discrimination on the part of Orchard Park Central School District [School District] based upon Sullivan's age, disability or gender in effecting the transfer of her work site. 

In additions Sullivan contended that the School District retaliated against her when she complained of those alleged unlawful discriminatory practices, but again SDHR, based on its investigation, found that there was no probable cause to support that allegation.

Sullivan's challenge to SDHR's determination by bringing an action in Supreme Court. The court sustained SDHR's determination and Sullivan appealed that ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that where, as here, SDHR renders a determination of no probable cause without holding an administrative hearing and relies only on the finding of investigation, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis."

Further, explained the court, "probable cause" is demonstrated only when, after giving full credence to a complainant's version of the events, "there is some evidence of unlawful discrimination."

Accepting Sullivan's version of the events underlying her complaint as true, the Appellate Division said that it concluded that "there is no evidence of unlawful discrimination based upon age or gender arising from the District's involuntary transfer of petitioner from the high school to an elementary school."   

Although the court noted that the transfer was "personally objectionable" to Sullivan, the Appellate Division held that the transfer did not constitute an adverse employment action.

Further, said the Appellate Division, "even if transfer was an adverse employment action," it found that "a rational basis supports SDHR's conclusion that the transfer did not occur under circumstances giving rise to an inference of discrimination based on age or gender."

In addition, the Appellate Division noted that SDHR's determination that there was no probable cause to believe that the District failed to provide assistance or reasonable accommodations for Sullivan's alleged disabilities as Sullivan failed to allege that she requested assistance that the District refused to provide, or proposed reasonable accommodations that the School District refused to provide.

In short, the court held that Sullivan "failed to identify any adverse employment action taken by the [School District]" and thus a rational basis supports SDHR's conclusion that there was no probable cause to believe that the District engaged in unlawful discrimination or in unlawful acts of retaliation. 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2018/2018_02947.htm

Discrimination claims not supported by a memorandum of law or oral argument in Supreme Court deemed abandoned

Discrimination claims not supported by a memorandum of law or oral argument in Supreme Court deemed abandoned

Schwertfager v New York State Div. of Human Rights, 2018 NY Slip Op 03289, Appellate Division, Fourth Department

Sharon Schwertfager, commenced a proceeding pursuant to Executive Law §298, New York State's Human Rights Law, in Supreme Court seeking to annul the determination of New York State Division of Human Rights [SDHR] that there was no probable cause to believe that Schwertfager 's employer, State University of New York at Fredonia, unlawfully discriminated and retaliated against her.

Supreme Court dismissed dismissing Schwertfager's petition and she appealed the court's decision.

In the course of considering her appeal, the Appellate Division noted that Schwertfager failed to address her discrimination claims in her memorandum of law or at oral argument in the motion court, nor did she address them in her brief on appeal.

Accordingly, said the court, any issues with respect to those claims advanced by Schwertfager were deemed to have been abandoned.

Addressing the merits of Schwertfager's arguments, the Appellate Division found that "the determination of SDHR is supported by a rational basis and is not arbitrary and capricious." Further, said the court, contrary to Schwertfager 's contentions regarding the nature and extent of SDHR's investigation of her complaint, the Appellate Division concluded that SDHR " properly investigated [Schwertfager's} complaint . . . and provided [Schwertfager] with a full and fair opportunity to present evidence on [her] behalf and to rebut the evidence presented by [Fredonia]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03289.htm

A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim

A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim
Love v Village of Pleasantville, 2018 NY Slip Op 03794, Appellate Division, Third Department

The genesis of the appeal was the Workers' Compensation Board's [Board] ruling, among other things, that the employer and its workers' compensation carrier [jointly "Carrier"] waived their defenses to the injured Town employee's [Claimant] workers' compensation claim.

Carrier had controverted the claim by filing a prehearing conference statement, which it served on Claimant and a law firm that did not represent Claimant. On the same day Claimant's counsel filed with the Board, and served on Carrier, an attorney/representative certification indicating that he had been retained by Claimant to represent him in the matter.

Subsequently a notice of a scheduled prehearing conference date was sent to the parties by the Board, a copy of which sent to Claimant's counsel and which notice included Claimant's counsel's address.

Carrier next filed an amended prehearing conference statement the day before the conference hearing, again serving Claimant and a law firm that did not represent Claimant.

Ultimately, the Board ruled, among other things, that Carrier waived its defenses to the claim because it did not serve a prehearing conference statement on Claimant's counsel.

In response to Carrier's appeal, the Appellate Division sustained the Board's determination noting that §25(2-a)(d) of the Workers' Compensation Law requires that a prehearing conference statement be filed 10 days prior to the conference. This directive is also set forth in 12 NYCRR 300.38(f)(1) and in the notice of prehearing conference sent to the parties by the Board. Further, 12 NYCRR 300.38 states that a "Failure by the insurance carrier to timely serve upon all other parties . . . the [prehearing] conference statement . . . shall result in a waiver of defenses to the claim."

Observing that [1] the pre-conference statement was not filed within the requisite statutory time period; [2] Carrier failed to serve Claimant's counsel with a prehearing conference statement; nor [3] did Carrier attempt to correct its erroneous service upon the wrong law firm, the Appellate Division said it found Carrier's argument that because "no prejudice to Claimant resulted from these omissions," its failure to properly serve Claimant's counsel should be excused.

Such conduct, said the court, can only be excused where the legal representative of the insurance carrier submits an affidavit that the error was due to good cause and that the insurance carrier exercised good faith and due diligence. In this instance the Carrier did not submit such an affidavit.

Accordingly, the Appellate Division said it found no reason to disturb the Board's finding that Carrier waived its defenses to the claim by failing to properly serve Claimant's counsel.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03794.htm