Seeking a writ of mandamus to compel a public entity to perform a certain action

For many years, Binghamton City Court [City Court] used docket books maintained in hard copy used by the plaintiff to personally compile lists of adjudicated summary eviction proceedings. However, at some point, City Court discontinued their use of hard copy docket books and began maintaining court records electronically. Beginning in 2015, Plaintiffs made several written requests to City Court for all summary eviction proceedings that had been adjudicated since January 1, 2014.

Plaintiff was advised that City Court did not maintain its records in the specific manner that he was requesting and that he could access the electronically-stored court records by providing a case name or index number. In addition, the Town of Union Court [Town Court] similarly notified Plaintiff that it did not maintain a running list of summary eviction proceedings in a form that he had requested.

Ultimately Plaintiff commenced a CPLR Article 78 proceeding in the nature of mandamus seeking to compel City Court and Town Court to, among other things, "maintain all court records in a written form . . . [l]ike the old docket books" and, since the records were maintained electronically, to provide the requested information "on a disk in a form that could be easily used by the public."

City Court answered Plaintiff's petition and alleged that Plaintiff had failed to state a claim. Town Court submitted an affidavit in opposition to Plaintiff's petition, requesting that the petition be dismissed, indicating that, although under no obligation to do so, it had employed an outside information technology company to create the list sought by Plaintiff. Supreme Court ultimately dismissed the petition and Plaintiff appealed.

The Appellate Division, citing Matter of County of Chemung v Shah, 28 NY3d 244, affirm the lower court's ruling, explaining that a "writ of mandamus"* is an extraordinary remedy that lies only to compel the performance of "an administrative act positively required to be done by a provision of law." In the words of the Appellate Division, "[s]uch a writ will not be awarded to compel the performance of an act involving the exercise of judgment or discretion or to direct the manner in which a public official carries out his or her legal duty to complete a ministerial act."

Finding that the records demonstrated that both City Court and Town Court were satisfying their duties under Judiciary Law §§255 and 255-b by maintaining an electronic docketing systems that was available for search and examination by members of the public with the assistance of court staff, the Appellate Division ruled that neither City Court nor Town Court were statutorily required to maintain their respective court dockets "in the particular manner requested by Plaintiff or create the list that Plaintiff desires."

Finding that City Court and Town Court cannot be compelled to perform their ministerial duties in the specific manner sought by Plaintiff, the Appellate Division ruled that Supreme Court had properly dismissed the Plaintiff's Article 78 petition.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_03863.htm

Under certain circumstances a court may order the New York State Public Employment Relations Board to issue determinations on pending improper practice charges

Petitioner in the Article 78 action had filed two improper practice charges with the Public Employment Relations Board [PERB] in 2014. Contending that PERB had yet to issues its determinations concerning these charges, in 2018 Petitioner initiated a CPLR Article 78 proceeding, seeking a court order compelling PERB to issue determinations on these two improper practice charges then pending before it, naming PERB and the State of New York [State] as respondents,.

In lieu of filing an answer to Petitioner's complaint, PERB moved to dismiss the petition for, among other reasons, Petitioner's alleged failure to exhaust administrative remedies. State, in lieu of filing an answer to Petitioner's complaint, separately moved to dismiss the petition with respect to it, alleging that it "was not a proper party to the proceeding."

The Supreme Court [1] granted the State's motion to dismiss it from the proceedings on the ground that it was not a proper party to the proceeding; [2] denied PERB's motion to dismiss the action on the grounds that petitioner "had failed to exhaust" administrative remedies; and [3] granted Petitioner's petition on the merits, directing PERB to issue determinations on Petitioner's improper practice charges within 60 days of the serving of the court's order, with notice of entry, on PERB.

PERB appealed the Supreme Court's ruling to the Appellate Division, thereby "invoking an automatic stay of Supreme Court's judgment."*

While the appeal was pending in the Appellate Division, however, PERB issued it's decisions on Petitioner's improper practice charges, thus providing Petitioner with all of the relief that he requested in his CPLR petition. 

The Appellate Division, observing that "the rights of the parties would not be affected by a determination" of PERB's appeal"on the merits," rejected PERB's contention that exceptions** to the mootness doctrine applied in this action. The court explained that the controversy presented by this case "evaded its review solely because PERB issued the requested determination during the pendency of the appeal."

Holding that the controversy between Petitioner and PERB had been resolved as the result of PERB's issuing the determinations demanded by Petitioner, the Appellate Division dismissed PERB's appeal as moot.

* See CPLR §5519[a][1], which, in pertinent part, provides for a stay of the enforcement of a court decision without a court order upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal where "the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state."

** Claims of exception to the mootness doctrine typically require the court to consider three issues: [a] is the question presented of a substantial public nature; [b] is there is a need for an authoritative determination for the future guidance of public officers; and [3] is there a likelihood of future recurrence of the question [see Hearst Corp. v Clyne, 50 NY2d 707].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03858.htm

Adjudicating claims filed against an employer alleging disability discrimination and retaliation pursuant to the Americans with Disabilities Act

The Federal District Court dismissed an employee's [Petitioner] claim that his public employer [City] had unlawfully discriminated against him and took retaliatory actions against in violation of the Americans with Disabilities Act [ADA] and the New York State Human Rights Law [NYSHRL].

Petitioner appealed the district court's ruling to the United States Circuit Court of Appeal, challenging three conclusions of the District Court that Petitioner:

[1] was not disabled after he returned to work;

[2] failed to show the existence of an accommodation that would allow him to

perform the essential functions of his employment; and

[3] did not produce evidence sufficient to show discrimination or retaliation.

Deciding that it need not consider Petitioner's first challenge, i.e., did the District Court erred in determining that Petitioner was disabled after he returned to work as, assuming, but not deciding that Petitioner was disabled after he returned to work,* the Circuit Court held that Petitioner's "claims fail as a matter of law" as he did not meet his burdens of "both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment.”

The Circuit Court explained that Petitioner failed to provide evidence of a reasonable accommodation, which “may include modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” Thus, said the court, Plaintiff's failure to accommodate claim fails as a matter of law, citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131.

Turning to Plaintiff's claim that he suffered discrimination and retaliation based on his three-day and subsequent termination from his position. Plaintiff argued that the City's discriminatory or retaliatory intent was demonstrated by "[a] the temporal proximity between his placement on light duty and his suspension the following business day and [b] the failure of the employer "to engage with him in an interactive process to identify a potential reasonable accommodation."

The City rebutted these allegations by explaining that Petitioner's suspension and later termination resulted from Petitioner's "numerous disciplinary infractions, several of which pre-date the time of his first injury."

Conceding that “A plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action” and that “an employer’s failure to engage in a good faith interactive process [to identify a reasonable accommodation] can be introduced as evidence tending to show disability discrimination,” the Circuit Court opined that "temporal proximity alone is 'insufficient to satisfy [plaintiff’s] burden' at the third stage of the McDonnell Douglas analysis." Considering his "prolific and longstanding disciplinary record," the court held that Plaintiff had not adduced sufficient evidence for a reasonable jury to conclude that the City had suspended or terminated Plaintiff for discriminatory or retaliatory reasons rather than as a result of his disciplinary problems.

Finally, said the court, "for the same reasons stated above, even assuming without deciding that an ADA mixed-motive discrimination claim under the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 ... is still viable after Gross v. FBL Fin. Servs., Inc., 557 U.S. 167," Plaintiff failed to produced evidence warranting a shift in burden under Price Waterhouse.

The Circuit Court explained that “[T]o warrant a mixed motive burden shift, the plaintiff must be able to produce a smoking gun or at least a thick cloud of smoke to support his [or her] allegations of discriminatory treatment.”

Accordingly, the Circuit Court of Appeals affirmed the judgment of the District Court.

* The Circuit Court of Appeals noted that Petitioner did not argued that the District Court erred by dismissing his NYSHRL claims for the same reasons as his ADAclaims.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4603613/molina-v-city-of-rochester/

An attorney admitted to the New York State Bar is subject to the State's registration requirements as long as he or she remains "duly admitted to the bar"

22 NYCRR 118.1 [a]-[c] provides that the registration requirements for attorneys applies "for as long as the attorney remains duly admitted to the New York bar" and such registration may only be terminated by the attorney's death, disbarment or formal resignation upon order of the Appellate Division.* Attorneys once admitted to practice law in New York State are required to register with the Office of Court Administration biennially.

An attorney was admitted to practice in New York State in 1982 and listed his business address as being in another state. When the attorney sought to leave to resign from the New York State bar for nondisciplinary reasons as permitted by 22 NYCRR 1240.22 [a], the Attorney Grievance Committee [AGC] opposed the attorney's application because the attorney was not current in his New York attorney registration requirements, having failed to timely register for his biennial period registration period, which commenced in 2018.

The Appellate Division found that "[i]nasmuch as [the attorney] was subject to potential disciplinary action as a result of such failure to register, the attorney was ineligible for nondisciplinary resignation and his application must be denied.

The court, citing Matter of Frank, 146 AD3 1228, opined that any future application by the attorney to resign from the New York State Bar must be supported by proof of his full satisfaction of the requirements of Judiciary Law §468-a and 22 NYCRR 118.1.**

In contrast, an attorney admitted to practice in New York State by the Appellate Division in 1996 and whose business address was on record with the Office of Court Administration, as being in another state, applied for leave to resign from the New York State bar for nondisciplinary reasons.

The AGC opposed the application, contending that attorney was ineligible for nondisciplinary resignation because he has failed to fulfill his New York State attorney registration requirements for the most recent biennial period, which began on his date of birth in 2018. However, Office of Court Administration records establish that the attorney had, in fact, become current in his New York State attorney registration obligation and cured any preexisting registration delinquency.

Accordingly, as the AGC had advanced no other substantive objection to the attorney's application seeking to resign from the New York State Bar, the Appellate Division determined that the attorney was then eligible to resign from the New York State Bar for nondisciplinary reasons and granted his application and accepted his resignation. ***

* See Rules for Attorney Disciplinary Matters, 22 NYCRR 1240.22 [a].

** This decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03877.htm

*** This decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03878.htm

If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public.

The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, the Appellate Division sustained a Supreme Court's ruling that a report prepared by an outside consultant for the agency was not shown to be eligible for the "intra-agency materials exemption" permitted by FOIL.

Public Officers Law §87 sets out the "ground rules" for a party accessing government records. Certain records, however, may be exempt from such disclosure including inter-agency or intra-agency materials other than statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; and iv. external audits, including but not limited to audits performed by the State Comptroller and the federal government.

In this instance the Appellate Division found that the agency failed to establish that it retained its outside consultant "for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant." In the words of the Appellate Division, " Supreme Court correctly held that [the agency] failed to meet its burden of showing that the intra-agency materials exemption applies, and properly directed [the agency] to produce an unredacted copy of the subject report."

The Appellate Division, however, remanded the matter to Supreme Court for further proceedings, explaining that Supreme Court failed to address the Petitioners' request for an award of reasonable attorneys' fees.

As the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67,FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Further, in a FOIL proceeding, the court shall provide for the agency to pay "reasonable attorney's fees and other litigation costs" reasonably incurred by a plaintiff where "such person has substantially prevailed" and, or, when the agency failed to respond to a request or appeal within the statutory time.

Further, noted the Appellate Division, the attorneys' fees provision of FOIL was amended to provide that the court "shall" award counsel fees where the agency has no basis for denying access to the material sought," and that an award of attorney's fees is intended to "encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding."**

* Examples of laws prohibiting the release of certain public records pursuant to a FOIL request include Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** Chapter 453, Laws of 2017

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03295.htm