If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal

If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal
Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964,

In deciding Haug v State University of New York at Potsday [Potsdam], a case involving student discipline, the Court of Appeals commented on some issues relevant to the  standard of proof required to support an administrative tribunal's decision.

The Appellate Division had concluded that Potsdam's determination was not supported by substantial evidence and vacated its decision. The Court of Appeals disagreed,*explaining:

1. Upon judicial review, the Appellate Division "must accord deference to the findings of the administrative decision-maker" noting that "neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact;" and

2. Courts have no right to review the facts generally as to weight of evidence beyond seeing to it that there is substantial evidence.

The substantial evidence standard is a minimal standard said the court, requiring only that a given inference be reasonable and plausible, "not necessarily the most probable." In other words, said the Court of Appeals, "[r]ationality is what is reviewed under the substantial evidence rule" and substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Further, the court opined, "[w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" and if substantial evidence supports the administrative decision being challenged, that determination must be sustained "irrespective of whether a similar quantum of evidence is available to support other varying conclusions."

In addition, the Court of Appeals noted that hearsay is admissible as competent evidence in an administrative proceeding, "and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds."

Ultimately, said the court, it was the province of Potsdam to resolve any conflicts in the evidence and make credibility determinations and ruled that the Appellate Division had improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those made by Potsdam. It then reversed the Appellate Division's order and remitted the matter it "for consideration of issues raised but not determined on the appeal."

* Judge Fahey dissented, stating that he would have sustained the majority opinion of the Appellate Division.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06964.htm

Employment of persons with disabilities and employment of veterans with disabilities

Employment  of persons with disabilities and employment  of  veterans  with  disabilities

Source: New York State Department of Civil Service

The New York State Department of Civil Service's Division of Staffing Services [DSS] has published the following Policy Bulletins:

1. Policy Bulletin 18-01 provides guidelines and procedures for appointing applicants for employment with disabilities pursuant to §55-b of the Civil Service Law by the State.*

The text of Policy Bulletin 18-01 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2018-01.htm

A printable version of Bulletin 18-01 in PDF format is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb18-01.pdf

2. Policy Bulletin 18-02, providing program guidelines and procedures for the employment of disabled  veterans  and  veterans  with   disabilities pursuant to §55-c of the Civil Service Law by the State.

The text of Policy Bulletin 18-02 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2018-02.htm

A printable version of Bulletin 18-02 in PDF format is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb18-02.pdf

** §55-a of the Civil Service Law provides for the employment  of applicants with disabilities by political subdivisions of the State.

N.B. §55 of the Civil Service Law addresses the "Examination  of  blind  or physically handicapped applicants."

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