Medical records related "solely to an employer's hiring practices" are not available to the applicant pursuant to New York's Public Health Law §18 unless necessary to make informed decisions concerning medical treatment

In this Article 78 proceeding the Plaintiff asked Supreme Court to [a] annul the New York-New Jersey Port Authority's [Authority] determination that he was not qualified to serve as a police officer in its public safety department in consideration of the results of his psychological evaluation and [b] to direct the Authority to provide him copies of all of its records related to his psychological evaluation.

Ultimately Supreme Court [a] granted the Authority's motion to dismiss that portion of Plaintiff's petition seeking to annul the Authority's rejection of Plaintiff for appointment as a police officer but [b] granted that portion of Plaintiff's petition seeking a court order requiring the Authority to provide him with "his psychometric testing results related to his psychological evaluation" pursuant to New York's Public Health Law §18.

The Authority appealed and the Appellate Division reversed that portion Supreme Court's judgment that ordered the release of the documents related to Plaintiff's psychometric testing results related to his psychological evaluation. The court explained that Plaintiff was not entitled to his psychometric testing results pursuant to §18 because §18 was intended to give individuals access to their medical records "to obtain necessary information about their medical treatment and condition and to make fully informed choices about their medical care."

Here, however, the court said that in this instance Plaintiff was not seeking to procure these psychological testing results as "necessary information about [his] medical treatment and condition . . . to make fully informed choices about [his] medical care."

Rather, opined the Appellate Division, the Authority's psychological testing results related "solely to its hiring practices," a wholly internal matter, which the Authority characterized as part of "the process used to recruit, screen, and evaluate candidates seeking to serve as police officers." The Appellate Division agreed with this characterization, commenting that this was "a quintessential example of an internal operation and a core employer-employee relations matter."

The court also took note that the Authority, as an interstate compact agency, is not subject to New York legislation governing its "internal operations," e.g. employer-employee relations, "unless both New York and New Jerseyhave enacted legislation providing that the same is applicable to The Port Authority, which is not the case here."

In contrast, however, the Appellate Division, citing Salvador-Pajaro v Port Auth. of N.Y. & N.J., 52 AD3d 303, pointed out that although a bi-state entity, the Authority "is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02661.htm

Employee terminated "for failing to maintain a minimum qualification of her employment"

An employee [Petitioner] of the Office for Persons with Developmental Disabilities [OPWDD] was suspended from her employment without pay and thereafter charged with six charges alleging misconduct and, or, incompetence related to alleged criminal conduct. Petitioner, was subsequently indicted on a number of criminal charges related to her employment with OPWDD and notified by the Office of the Medicaid Inspector General  that, "based on the pendency of felony charges against her," she was excluded from participation in the State's Medicaid program."

Notified by OPWDD that her employment was subject to termination, Petitioner failed to attend two scheduled meetings for the purpose providing with an opportunity to present documentary evidence showing that she "was not an excluded provider" whereupon OPWDD wrote to Petitioner that her employment was terminated as of close of business on November 1, 2016. On October 26, 2016, following a jury trial, Petitioner was acquitted of all criminal charges for which she had been indicted. Notwithstanding her acquittal of the criminal charges, OPWDD terminated Petitioner effective November 1, 2016. 

In February 2017 Petitioner initiated a CPLR Article 78 proceeding against OPWDD seeking, among other things, reinstatement to her former position, contending that her termination was made without administrative due process and "was otherwise arbitrary and capricious." Supreme Court dismissed her petition and Petitioner appealed.

The Appellate Division affirmed Supreme Courts ruling, rejecting her contention that she was denied due process when OPWDD failed to follow the disciplinary procedures mandated by the Civil Service Law Section 75 and set forth in the relevant collective bargaining agreement.

The court explained that Petitioner not been terminated from employment by OPWDD based upon any allegation of incompetence or misconduct but was terminated "for failing to maintain a minimum qualification of her employment" - continued eligibility for the Medicaid program -- and, therefore, "the disciplinary procedures mandated by the Civil Service Law and the collective bargaining agreement were not applicable in this instance."

Further, opined the Appellate Division, it saw no violation of Executive Law §296, New York State's Human Rights Law, as Petitioner had been terminated for failing to possess a minimum qualification of employment that was "expressly set forth in OPWDD's employee handbook, which indicates that an offer of employment may not be made until a potential candidate has been screened against both the state and federal databases of Medicaid excluded individuals."* This requirement was also set out in a state regulation, a special advisory bulletin and during a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program.

Accordingly, the Appellate Division rule that Petitioner received all the due process to which she was entitled as "it is not disputed that she received notice of the charge that led to her termination and was provided an adequate opportunity to contest same." Further, said the court, the fact the Petition allegedly regained her eligibility to participate in the Medicaid program based on her subsequent acquittal of the criminal charges brought against her "did not render irrational OPWDD's determination to terminate [Petitioner's] employment in the first instance" and affirmed Supreme Court's dismissal of her Article 78 petition.

*This requirement "was also set forth in a state regulation, a special advisory bulletin and a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08993.htm

________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

________________

Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention

The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception. 

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.

Health insurance benefits set out in collective bargaining agreement found to have survived expiration of agreement and the employee's resignation

The plaintiff [Petitioner] in this action was initially employed by the City of Lockport [Lockport] in a position in a collective bargaining unit represented by the American Federation of State, County and Municipal Employees [AFSCME]. Lockport subsequently promoted Petitioner to a position in a collective bargaining unit represented by the Civil Service Employees Association [CSEA]. In 2008 Petition later left Lockport's employ and commenced working for Niagara County [County]. In 2016, Petitioner asked Lockport provide him medical benefits set out in the relevant collective bargaining agreements [CBAs] between Lockport and AFSCME and between Lockport and CSEA.

When Lockport refused to do so, Petitioner commenced an action for breach of contract and sought a court order declaring that Lockport was required to provide him with the medical benefits set out in the relevant CBA. Ultimately Supreme Court granted Plaintiff's motion for summary judgment, ruling that Lockport was obligated to provide Petitioner with medical benefits under the Lockport and AFSCME CBA. The Appellate Division, in response to Lockport's appeal challenging the Supreme Court's decision, affirmed the lower court's ruling.

The court explained that "[a]s a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement .... However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement . . . , and [the court] must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right."

Citing Kolbe v Tibbetts, 22 NY3d 344, the Appellate Division observed that whether a provision in a collective bargaining agreement "is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous. In contrast, said the court, where the language in the collective bargaining agreement "is 'reasonably susceptible of more than one interpretation, extrinsic or parol evidence may be then permitted to determine the parties' intent as to the meaning of that language,'" referencing Fernandez v Price, 63 AD3d 672 quoting Chimart Assoc. v Paul, 66 NY2d 570.

In this instance the Appellate Division concluded that Supreme Court "properly determined that the plain meaning of the provisions at issue in the AFSCME CBA establishes that [Petitioner] has a vested right to medical benefits, [that] those rights vested when he completed his 20th year of service, and [Petitioner] became eligible to receive said benefits when he reached retirement age."

Further opined the Appellate Division, Petitioner's right to medical benefits "vested when he satisfied the criteria in the AFSCME CBA, and there is no language in the AFSCME CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age." Accordingly the court concluded that Supreme Court's interpretation of the AFSCME CBA "give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized ... and does not leave one of its provisions substantially without force or effect."

N.B. Motion to dismiss appeal granted, Motion #CA 18-00924 [see
http://www.nycourts.gov/reporter/motions/2018/2018_66476.htm]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08792.htm

Property owner liable if a firefighter is injured in the line of duty due to the owner's failure to comply with law, rule or regulation that resulted in the injury

General Municipal Law §205-a "gives a firefighter . . . a right of action against any person whose negligent failure to comply with a government provision either  directly or indirectly results in injury" suffered in the "line of duty."

A city firefighter, who had sustained injuries in the course of performing firefighting duties when he "stepped onto a roof, slipped on the snowy surface and fell to the ground," and his spouse [Plaintiffs] sued the owner, [Defendant] alleging the Defendant was liable, citing General Municipal Law §205-a and General Obligations Law §11-106. Supreme Court granted the Defendant's motion and Plaintiffs appealed.

The Appellate Division ruled that Supreme Court properly granted Defendant's motion for summary judgment, explaining that while General Municipal Law §205-a "gives a firefighter . . . a right of action," to successfully make out such a claim, a plaintiff:

1. Must identify the statute or ordinance with which the defendant failed to comply;

2. Describe the manner in which the firefighter was injured; and

3. Set out the facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter.

In contrast, to succeed on a motion for summary judgment dismissing the plaintiff's action in this context, a defendant must show either:

1. Defendant did not violate any relevant governmental provision or;

2. If a relevant government provision was violated, that such violation did not directly or indirectly cause [the firefighter's] injuries."

Defendant had submitted his deposition testimony and the affidavit of an expert opining that Defendant's house contained no building code violations that contributed to the firefighter's injuries.

Plaintiffs contended that Defendant had violated statutory and building code provisions requiring all multifamily dwellings to contain fire-resistant enclosures at the base or top of stairways or both and that the lack of such enclosures contributed to the firefighter's injuries.

The court, however, observed that Plaintiffs' expert contended that Defendant violated provisions of these laws, but his opinions were based on assumptions without any explanation of how these laws were applicable in this instance.

Further, although Plaintiffs also assert that Defendant violated local ordinances by failing to obtain permits when certain work was performed inside the house, the Appellate Division noted that record does not indicate that any of those alleged violations caused or contributed to the firefighter's injuries.

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that Defendant was entitled to summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02604.htm

____________

Disability Benefits for fire, police and other public sector personnel - This e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

_________