Sick leave abuse

Sick leave abuse

People v Robert Patino, Nassau County Court, affirmed, 259 A.D.2d 503

Robert Patino, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work. Patino was charged with sick leave abuse and falsifying his application for Retirement and Social Security Law §207-c disability benefits.

Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

Charges filed against Patino: (1) Offering a False Instrument for Filing in the First Degree (Penal Law §175.35); (2) Attempted Grand Larceny in the Third Degree (§110/155.35); (3) Grand Larceny in the Third Degree (§155.35) and (4) Defrauding the Government (§195.20).

Among his defenses, Patino argued that because he was the first police officer to be prosecuted on such charges, this constituted his being "selectively and vindictively prosecuted in violation of his Fourteenth Amendment Rights." This, he contended, required that the indictment be dismissed "in the furtherance of justice." He did not prevail. The penalty imposed: 5 years probation plus a $5,000 fine. In addition, the Court ordered Patino to reimbursing Nassau County the $17,500 it incurred while investigating the matter as restitution.

On the issue of selective prosecution, the parties agreed that Patino was the first Nassau County police officer to be prosecuted for filing allegedly fraudulent disability applications or for the alleged fraudulent use of sick leave.

This, said the Court, "while meaningful, is not controlling." There exists no per se ban on one or another type of new prosecution. In other words, the fact that no one had been prosecuted for similar offenses in the past did not preclude the County from prosecuting Patino.

The decision comments that in order to sustain a claim of selective prosecution, it must be proven that a law has been (a) "applied and administered by a public authority with an evil eye and (b) an unequal hand," a standard set out by the U.S. Supreme Court in Yick Wo v Hopkins [118 US 356].

In other words, said the Court, "(T)here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some arbitrary classification," citing 303 West 42nd Street Corp. v. Kelly, 46 NY2d 684.

The Court further noted that the Nassau County District Attorney, not the Nassau County Police Department, was prosecuting the case. Although the Police Department did the initial investigation and fact-gathering concerning Patino, it was the District Attorney's Office that subsequently reviewed and evaluated the information and decided to prosecute.

Another argument made by Patino was that criminal action could not be taken against him until he had been given a General Municipal Law "§207-c hearing."  The Court said that there is nothing to indicate that utilization of such a civil, administrative procedure in any way precludes the District Attorney from proceeding criminally against Patino.

The Court refused to dismiss the action against Patino, holding that "[a] dismissal in furtherance of justice would have a significant impact upon the public's confidence in our justice system. When a police officer, sworn to enforce the law, is charged with a crime, the public's confidence in the system is eroded. An outright dismissal of the charges prior to trial would damage this confidence still further."

Proper service of an arbitration award starts the running of the statute of limitations for perfecting an appeal

Case v Monroe Comm. College, 224 A.D.2d 952, affirmed, 89 N.Y.2d 438, Motion to amend opinion denied, 89 N.Y.2d 1081

In order to challenge an arbitration award, the aggrieved party must commence a timely Article 75 action [Article 75, Civil Practice Law and Rules]. Case v Monroe County Community College considers this issue in the context of an employee personally filing an action to vacate or modify an arbitration award pursuant to Article 75 should his or her union decline to do so.

Significantly, the Court of Appeals ruled that service of an arbitration award upon the union representing an aggrieved member constitutes service upon that individual member, for purposes of measuring the timeliness of an appeal from the award.

This, said the Court, is true regardless of whether the union elects to pursue an appeal on behalf of its member. The operative date is the date the arbitrator served the individual's agent, here Case's  union, with a copy of the award.

Further, the high court said that it did not make any difference if the party upon whom the award was served was not an attorney.

The case arose after a student charged Robert W. Case, Monroe Community College's Director of Athletics, with sexual harassment. When the  College's attempts to resolve the matter to the satisfaction of both parties proved fruitless, Case was notified that his term appointment would not be renewed for the subsequent academic year.

Case filed a grievance under the collective bargaining agreement between the College and the faculty union alleging that the College's non-renewal of his appointment violated certain procedural steps set out in the agreement.

Eventually Case's grievance was submitted to arbitration. The arbitrator decided that because Case held a non-tenured term appointment, there was no basis under the terms of the collective bargaining agreement for arbitration of the non-renewal of his employment and denied his grievance. The arbitrator mailed copies of the award to the union and the College -- each acknowledged receipt of the award the following day.

Case told the union that he was dissatisfied with the award. The union, however, decided not to attempt to vacate it. When Case brought an Article 75 action to vacate or modify the award, the College moved to dismiss his petition, citing two reasons in support of its motion:

(1) Case lacked standing to bring a proceeding on the award because he was not a party to the arbitration; and

(2) his petition was untimely under CPLR 7511(a) since it was filed after the 90-day statutory period for commencing the action had passed.

Although the Appellate Division concluded that CPLR 7511(a) requires that an application to vacate or modify an arbitration award "be made by a party within ninety days after its delivery to him" this meant that when the individual was not represented by an attorney  "... nothing less than personal service upon the aggrieved individual ... triggers the 90-day appeal period".

Accordingly, the Appellate Division ruled that Case's application to vacate or modify the award, even though filed approximately six months after the award was served on his union, was timely because the 90-day statute of limitations first began to run "when the award was delivered to petitioner."

The Court of Appeals said it disagreed with this analysis, commenting that it had previously recognized that "basic procedural dictates" and "fundamental policy considerations" contemplate that "once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

The Court said that the Appellate Division's holding that this principle applies in cases where a party is represented by an attorney and not where a lay union representative "unschooled in the law" was the grievant's agent was incorrect.

Rather, when an individual has designated an agent to represent him, service on the agent, whether an attorney or not, starts the running of the statute of limitations. In such a situation, once a grievant is represented by a designated agent, that entity or individual becomes the agent for service of awards, orders or documents relevant to the proceeding.

Once service is effected on the individual's agent in accordance with the prescribed rules, the aggrieved individual is deemed to have been served with the award or order.

Note: As to the issue of Case having standing to bring the Article 7f5 action, the Court of Appeals said that he could do so that even though he was not individually named as a party in the caption of the arbitration proceeding and was initially represented by a union attorney, citing Diaz v Pilgrim State Psychiatric Center, 62 NY2d 693. 

In Diaz the Court of Appeals said that where the provisions of the collective bargaining agreement specifically provide that an aggrieved employee is entitled to "representation at each step of the disciplinary procedure by the union or any attorney selected by an employee or to represent himself or herself," nothing bars the aggrieved employee's self-representation subsequent to the designated representative's declination to proceed further.

What does this decision mean? Simply put, it means that an individual will be deemed to have been served with an arbitration award on  the same day his or her attorney, union or other representative is served even if he or she does not personally receive a copy until some later date. 

As Case learned, if an individual fails to file his or her Article 75 motion to vacate or modify an arbitration award within 90 days after service of the award on his or her agent, or after personally receiving a copy, which ever is the earlier date, the petition will be dismissed as untimely.

Challenging the provisional appointment of a co-worker

Challenging the provisional appointment of a co-worker

Kirmayer v State Civil Service Commission, 236 A.D.2d 705*   

May an employee challenge the provisional appointment of a coworker and if so, what standards must he or she meet to pursue the action? This was the central issue in Kirmayer v New York State Civil Service Commission.

David Kirmayer, a Computer Systems Programmer with the State Office of Mental Health [OMH], asked the Civil Service Department to revoke OMH's provisionally appointing Catherine Dryden as Supervisor of Revenue Operations. Kirmayer contended that Dryden's appointment violated §65.4 of the Civil Service Law.** When the Department of Civil Service refused to revoke Dryden's appointment, Kirmayer filed an Article 78 seeking to compel the revocation of her appointment.

A New York State Supreme Court judge dismissed Kirmayer's action on the grounds that he lacked standing to commence the proceeding. On appeal, the Appellate Division affirmed the Supreme Court's ruling.

The Appellate Division said that in order to challenge an administrative determination, Kirmayer had to show:

a. interest protected by statutory or constitutional provisions;

b. The administrative determination being challenged had a harmful effect on him; and

c. There was no clear legislative intent barring judicial review of the matter.

Kirmayer contended the appointment did hurt him, even though he made no claim that he was qualified for Dryden's position. Instead he contended that had an individual in his "promotional unit" been appointed as the provisional Supervisor of Revenue Operations, he could have applied for the vacancy created by the appointment.

The Appellate Division said that Kirmayer "so-called injury ... stemming from his purported inability to apply for an unspecified position that might have become vacant through the promotion of some unknown individual" constituted pure speculation.

In other words, the Court decided that Kirmayer "simply has not demonstrated the special type of damage necessary to confer standing for the purpose of pursuing the litigation."

* See, also, Kirmayer v State Civil Service Commission, 42 AD3d 848

** §65.4 generally bars "successive provisional appointments" to the same position. Presumably the approval of Dryden's provisional appointment by Civil Service was authorized under one or more of the exceptions allowed by §65.4.

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail

2018 NY Slip Op 07701, Appellate Division, Second Department

The tort of defamation may refer to an alleged false statement, communicated orally [slander] or in a writing [libel], that injures an individual's "reputation" or his or her "good name" in the community.

The Plaintiff in this action contended that the Defendant sent an email to the Plaintiff''s adult children in which Defendant alleged Plaintiff, a teacher, had engaged in an act of "professional misconduct" and "communicated the [D]efendant's opinion of the character of the [P]laintiff" to the children.

Supreme Court granted Defendant's motion to dismiss the action and Plaintiff appealed. The Appellate Division sustained the lower court's action.

The court, citing Mann v Abel, 10 NY3d 271, explained that a defamatory statement constituting "pure opinion" is not actionable under New York State Law because expressions of opinion, in contrast to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

Here, however, the Appellate Division observed that although the subject email communicated the Defendant's opinion of the character of the Plaintiff, the email also set forth disputed allegations of fact that had a precise meaning which were readily understood and which were capable of being proven true or false, and in context, the email could be reasonably understood to proffer assertions of fact. Thus, said the court, the subject email communication contained potentially actionable statements of fact.

In a defamation action the plaintiff must allege that he or she suffered special damages - the loss of something having economic or pecuniary value unless the statement is defamatory per se. Plaintiff in this action, however, did not allege special damages nor did the subject email did not "charge the [P]laintiff with any serious crime" or having any "loathsome disease."

Noting that "one statement in the email referred to alleged professional misconduct by the [P]laintiff," a teacher, the Appellate Division concluded that "under these circumstances that allegation of a single instance of professional misconduct is not actionable" and the email did not contain any other statements that could be deemed defamatory per se.

With respect to statements deemed "defamatory per se", in Geraci v Probst, 15 NY3d 336, the Court of Appeals sustained a trial court's instruction to the jury that Probst's statement was defamatory per se because it alleged that Geraci had committed a crime, in this instance "a violation of the General Municipal Law related to the exercise of [Geraci's] public office" and that the statement was false.

In Golub v Enquirer/Star Group, 89 NY2d 1074, the court opined that "Generally, a written statement may be defamatory 'if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'", quoting Mencher v Chesley, 297 NY 94. Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business. 

In this action, however, Appellate Division, for the reasons indicated above, sustained the Supreme Court's determination to grant Defendant's motion to dismiss Plaintiff's cause of action alleging defamation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07701.htm

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Aiello v Bratton, 236 A.D.2d 319

May two individuals be promoted following the resolution of disciplinary action, one with "back salary and seniority" and the other denied "back salary and seniority?" As the Aiello decision indicates, this could be lawful under certain conditions.

Richard J. Aiello and another police officer serving with the New York City Police Department were promoted to lieutenant and detective respectively following the resolution of disciplinary charges that had been filed against them. Their respective appointments had been held up while these disciplinary actions were pending.

The detective was appointed retroactively, with back salary and "retroactive seniority." Aiello, on the other hand, was neither given back salary nor "retroactive seniority" when he was promoted.

Aiello sued, contending that the Department had violated his right to "equal protection" by not making his promotion retroactive and awarding him back salary and seniority as well. The Appellate Division rejected Aiello's arguments and dismissed the appeal.

The Court decided that situation underlying Aiello's  promotion to lieutenant and the other officer's promotion to detective were not exactly the same.   

It seems that Aiello's promotion was made from an eligible list for lieutenant and subject to the "rule of one of three" [§61.1, Civil Service Law]. Accordingly, his appointment was subject to the discretionary authority of the Commissioner of Police. As Aiello did not have a vested right to the promotion, he could not claim that he had any right to back salary or seniority upon his promotion from the eligible list.

The appointment of the police officer to detective, however, was quite different. The Court ruled that officer had "a vested right to his promotion to detective under NYPD Directive #27."

Why was this so? It appears that the officer had performed investigatory duties for more than 26 months and thus became entitled to permanent status in the position in accordance with the provisions of Directive #27. When he was reinstated following the resolution of the disciplinary action, his promotion, which had been "placed on hold," had to be made retroactive and thus he was entitled to back pay and seniority as detective.

The automatic permanent appointment of a police officer to the position of detective by NYPD after the officer performed detective or investigatory service for the minimum period prescribed by Directive #27 was upheld by the Court of Appeals in Scotto v Dinkins, 85 NY2d 209. In contrast, the high Court held unconstitutional a statute, §58.4(c) of the Civil Service Law, mandating automatic promotion to detective in other jurisdictions [see Wood v Irvine, 85 NY2d 238, decided the same day].

Finding that the two individuals were not "similarly situated" insofar as the procedures dealing with their advancement in title and grade were concerned, the Court ruled that Aiello had not been denied equal protection and dismissed the appeal.