Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to have jurisdiction over the claim

Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to havejurisdiction over the claim

2018 NY Slip Op 06844, Appellate Division, Third Department

Claimant, acting pro se, appealed an order of the Court of Claims which granted defendant employer's motion to dismiss the claim.

The Appellate Division's decision indicates that Claimant was placed on involuntary leave due pursuant to Civil Service Law §72 to after being found to be unfit to perform her duties and a danger to her coworkers, Claimant was ultimately terminated from her employment in July 2009 and had filed multiple employment-related discrimination complaints with the Equal Employment Opportunity Commission and commenced subsequent federal actions, each of which was dismissed.

In February 2016, Claimant filed a petition with the Court of Claims seeking damages as the result of alleged adverse and discriminatory employment actions taken by, among other government officials and personnel, various employees of her former employer [Defendant]. In lieu of answering, Defendant moved to dismiss the claim, asserting, among other things, that the Court of Claims lacked subject matter jurisdiction because the claim failed to comply with the substantive pleading requirements of Court of Claims Act §11(b).

The Court of Claims granted defendant's motion and Claimant appealed.

The Appellate Division affirmed the Court of Claims' ruling, explaining that §11(b) of the Court of Claims Act requires that "a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed" in sufficient detail to permit a defendant to investigate and promptly ascertain the existence and extent of its liability."

In contrast, the Court of Claims Act does not require a defendant "to ferret out or assemble information that §11(b) obligates the claimant to allege." Further, said the court, "[s]trict compliance with the pleading requirements contained in Court of Claims Act §11(b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect."

The Appellate Division characterized the claim consisted of "88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim" that would permit Defendant to investigate and promptly ascertain the existence and extent of its liability. As a result, the Appellate Division ruled that Claimant failed to satisfy the pleading requirements of Court of Claims Act §11(b).

Accordingly, said the Appellate Division, the Court of Claims lacked subject matter jurisdiction and properly granted Defendant's motion to dismiss the claim.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06844.htm

Recent disciplinary determinations by the New York State Commission on Judicial Conduct

Recent disciplinary determinations by the New York State Commission on Judicial Conduct

Matter of Astacio, 2018 NY Slip Op 06850, Court of Appeals

Matter of O'Connor, 2018 NY Slip Op 06852, Court of Appeals

The New York State Commission on Judicial Conduct, following hearings, sustained certain charges of alleged misconduct brought against two members of the judiciary and recommended that the jurists be removed from their respective offices. 

The Court of Appeals accepted the Commission's findings and recommended sanctions and removed the jurists from office.

The court's decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06850.htm[Matter of Astacio, Opinion Per Curiam]

http://www.nycourts.gov/reporter/3dseries/2018/2018_06852.htm[Matter of O'Connor, Opinion Per Curiam]

Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"

Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"

Santangelo v Seaford U.F.S.D., 2018 NY Slip Op 06838,

Workers' Compensation Law §114-a, "Disqualification  for  false  representation," provides for the disqualification of a claimant from receiving future wage replacement benefits pursuant to §15 of said law if he or she is found to have made any "false representation" with respect to his or her claim for benefits.

In 2007, Lawrence Santangelo [Claimant] sustained a work-related injury to his "back and right leg" and underwent surgery. Claimant, however, continued to complain of chronic back pain and reported that he experienced numbness and weakness in his "left leg," which necessitated that he walk with the use of a cane or knee brace. The Workers' Compensation Board ultimately classified Claimant as having a "permanent total disability."

In 2016, the Claimant's former employer's workers' compensation carrier reopened the case, raising the issue of whether Claimant violated WCL §114-a.

Claimant's medical records indicated that "he was in constant pain, required use of a cane or knee brace on a daily basis and was severely impacted in his ability to stand and walk — at times grabbing the wall for stability."

However, surveillance videos of Claimant between August 2015 and March 2016 showed Claimant "walking without a limp, standing and driving for extended periods of time, bending over to do repair work under the hood of a vehicle, and lifting items, such as a car battery, a floor jack and an automobile tire, from the bed of his truck."

In addition, "the only time during the surveillance period that Claimant was observed using a cane or knee brace was during a medical appointment" although later that same day Claimant was observed "walking normally without any assistive device."

The carrier's medical expert testified that Claimant's unrestricted movements and activities depicted on the surveillance videos were inconsistent with complaints of pain and reported limitations expressed by Claimant during the examinations.

After reviewing surveillance video and hearing testimony, a Workers' Compensation Law Judge [WCLJ] ruled that Claimant had violated WCL §114-a and disqualified him from receiving future benefit payments. The Workers' Compensation Board affirmed the WCLJ's decision and denied Claimant's subsequent request for full Board review and, or, reconsideration. Claimant appealed both decisions.

The Appellate Division sustained the Board's decisions, finding that Claimant made false representations regarding material facts and that the Board's ruling was supported by substantial evidence.

The court also rejected Claimant's argument that the Board's decision sustaining the WCLJ's ruling was inconsistent with its 2009 decision, noting  "that the 2009 decision was superseded by a 2012 decision and, in any event, is irrelevant to the issue as to whether [C]laimant subsequently violated WCL §114-a."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06838.htm

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06738, Appellate Division, Second Department, [Decided with Matter of Yonkers Firefighters v City of Yonkers, Appellate Division Docket No. 2016-02470]

[See, also, City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06750, Appellate Division, Second Department and City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06751, Appellate Division, Second Department]

On December 4, 2014, Yonkers Firefighters, Local 628, International Association of Fire Fighters, AFL-CIO, [Local 628], filed a demand for arbitration alleging that Christopher Giardini had been improperly terminated from the position of firefighter in violation of a collective bargaining agreement with the City of Yonkers [City]. Two weeks later, Local 628 commenced a proceeding pursuant to CPLR Article 78 to review the determination of the City terminating Giardini's employment.

Local 628 actively prosecuted both arbitration and the Article 78 action. On September 26, 2015, an arbitration award*in favor of Local 628 and the on December 23, 2015, the City commenced proceeding pursuant to CPLR Article 75 to vacate the September 26, 2015, arbitration award, alleging, among other things, that the arbitrator lacked authority to arbitrate the dispute because Local 628 had waived arbitration of the dispute by commencing and prosecuting the CPLR Article 78 proceeding it initiated in December 2014.

Supreme Court granted the City's petition and vacated the arbitration award. Local 628 appealed Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, noting that a right to arbitration may be modified, waived or abandoned "[w]here a party affirmatively seeks the benefits of litigation, in a manner clearly inconsistent with [its] claim that the parties were obligated to settle their differences by arbitration...." Further, said the court, "[O]nce waived, the right to arbitrate cannot be regained, even by [a] respondent's failure to seek a stay of arbitration."

Here, said the court, Local 628, by commencing an action at law involving arbitrable issues, it waived whatever right it had to arbitration. Accordingly, ruled the Appellate Division, because Local 628 commenced the CPLR Article 78 proceeding during the pendency of the arbitration the City correctly argued that Local 628 waived its right to arbitration as a result and the arbitrator should not have conducted the arbitration. As a result the award exceeded the arbitrator's authority and the Appellate Division concurred with the Supreme Court's determination granting the petition and vacating the arbitration award. 

* The arbitrator ruled that that Giardini's employment as a probationer had become permanent prior to the termination of his employment notwithstanding interruptions in his performance of his firefighter duties during his probationary period due to injuries suffered in the line of duty and directed his reinstatement to the position of firefighter with back pay. However, it should be noted that in the event an employee injured on the job is given a "light duty assignment," as was the case with respect to Giardini, the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes. In Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601, the court held that an injured firefighter may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of "light duty."

A NYPPL Note: The Boyle court reversed a decision which had granted Boyle, and another New York City firefighter, tenure one year after the effective date of their respective permanent appointments. The reversal of the earlier ruling was based on the concept that the probationary period is designed to determine the fitness of the employee for tenure on the basis of his or her job performance. A worker who is absent because of a disability, work-connected or not, or one who is performing "light duty," is not able to satisfy this requirement as he or she cannot be evaluated with respect to his or her actual performance of the duties of the position. Although the firefighters had been in service for one year, they had spent only two or three months performing the full duties of their positions. They were absent on sick leave or assigned light duty for the balance of the time. The opinion concludes with the following observation: "To be sure, any probationer who is injured in service should be granted the protections to which he or she is entitled, such as sick-leave benefits and the opportunity to apply for disability retirement. The grant of tenure, however, to an employee who does not successfully complete a probationary period frustrates the function of probation, and undermines the constitutional requirement that appointments be based on merit and fitness."

The Local 628 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06738.htm

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Appellate Division, Second Department

Anthony Johansmeyer and others [Petitioners] sued the New York City Department of Education and the City of New York [jointly DOE] and Child Center of New York [CC] to recover damages for negligent hiring, supervision, and retention of a member of CC's staff [Employee] alleged to have inflicted acts of sexual abuse and molestation on an infant student. The defendants' motions for summary judgment dismissing the complaint as asserted against each of them was denied by Supreme Court, which ruling was sustained by the Appellate Division.

The Appellate Division explained that "Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business," citing Fernandez v Rustic Inn, Inc., 60 AD3d 893, an employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.

However a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and the employer's negligence lies in having " placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention'" of the employee.

With respect to DOE, the Appellate Division said DOE "failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision" of Employee and its submissions in support of its motion for summary judgment "raised a triable issue of fact as to whether the DOE took the appropriate measures" to evaluate Employee's "employment and fitness at the time he was allowed to intern at the school." In addition, said the court, there was a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Employee "placed [Employee] in a position to cause foreseeable harm."

The court also noted that, in general, liability may not be imposed on school authorities where all of the improper acts against a student occurred off school premises and outside school hours. Here, however, the Appellate Division said that DOE's submissions demonstrated that, although the sexual abuse ultimately occurred in the infant's home," it was preceded by time periods when the infant was alone with Employee during school hours on a regular basis. Thus, triable issues of fact exist as to whether the DOE knew or should have known of such behavior and Employee's propensity for sexual abuse.

The Appellate Division also agreed with Supreme Court's denial CC's cross motion for summary judgment, noting that although CC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring by submitting the deposition transcript of its administrative director, Plaintiffs had raised a triable issue of fact by submitting Employee's Child Center employee records which indicated that Child Center never checked references, clearances, proof of education, or New York State Sex Offender Registration records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06518.htm