Exceptions to the "going and coming" rule in determining if an injured employee was performing his job duties at the time he suffered an injury

A state park police officer [Claimant] filed an application for performance of duty disability retirement benefits with the New York State and Local Police and Fire Retirement System [System] alleging that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises.

The System denied Claimant’s application, finding that he failed to establish permanent incapacitation. Claimant requested a hearing and redetermination of the Systems determination. The designated Hearing Officer sustained the System’s the denial of Claimant’s application, finding that the Claimant was not in service at the time he suffered his injuries. The Comptroller accepted the Hearing Officer’s findings and conclusions and the Claimant filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division commenced it review of Claimant’s appeal by noting that the claimant bears the burden of proving that he was "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service" and the individual “was performing job duties at the time of the injury.”*

The court then noted that at the hearing Claimant testimony “made apparent that he was actually on his way into work at the time of his injury, not ‘on duty and at work’ as he stated in his application for benefits.” In the words of the Appellate Division, “[Claimant’s] own testimony establishes that he slipped and fell on icy stairs on his way into work prior to the start of his shift, and we have upheld findings that an employee who is injured before reporting for work and commencing his or her duties is not ‘in service’ when the injuries were sustained.”

Thus, said the court, the Comptroller's determination that claimant was not in service at the time he sustained his injury is accordingly supported by substantial evidence, and it declined to disturb it.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

In Neacosia v NY Power Authority, 85 NY2d 471, the Court of Appeals affirmed the Workers’ Compensation Board’s decision that a security officer [Officer], who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Officer was employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Officer was driving home after completing his shift. Under the facts giving rise to Officer’s claim, which were stipulated, the Administrative Law Judge [ALF] found the Officer’s travel had a dual purpose that served to extend the scope of his employment as he was leaving a designated cleaning establishment after leaving his uniforms to be cleaned.

The Workers’ Compensation Board affirmed the ALJ’s determination, illustrating one of the exceptions to the general rule that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law. Here the Board found that Officer was engaged in a "special errand" for the employer. The Court of Appeals sustained the Workers’ Compensation Board's ruling that Officer was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

* See Retirement and Social Security Law §363-c[b][1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

Employer's evidence in disciplinary hearing found to have failed to prove the alleged misconduct

Three correction officers and a captain, [Respondents], wearing with helmets which had visors and side flaps, responded to an incident between another correction officer and an inmate. The appointing authority, relying on a video of the incident, alleged one of the Respondents punched the inmate "in retaliation for being spat upon," and charged the Respondents of having filed false reports concerning the incident by not reporting a "use of force."

At the disciplinary hearing Respondents testified that as they were escorting the inmate, he turned and spat at an officer. Two individuals who were beside the inmate "immediately took him down," causing the inmate's face to hit a row of chairs.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended dismissal of the disciplinary  charges, finding that appointing authority’s evidence neither established that the inmate was struck by the other officer nor that Respondents witnessed a use of force which they failed to report.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2526.pdf 

Searching for abandoned property being held by the New York State Comptroller

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

Periodically NYPPL provides a sample listing of abandoned property being held by the New York State Comptroller. Below are some randomly selected “New York State” governmental entities currently listed on the Comptroller’s “abandoned property” website. Searching the site requires some “detective skills,” however, as the name of the property owner is not always accurately identified by the entity depositing the property with the Comptroller.

For example, the entity may be reported merely as:

EDUCATION DEPARTMENT

HEADS AND HORNS BUILDING BRONX NY 10460

FLEET BANK N A

 However, more often the names are more accurately reported, such as:

BOCES ADIRONDACK EDUC CTR	711 RT 3 BLOOMINGDALE RD SARANAC LAKE NY 12983	CONAGRA FOODS LAMB WESTON INC
BOCES ADULT & CONTIN UING	0 WILSON ST GOUVERNEUR NY 13642	NIAGARA MOHAWK POWER CORP
BOCES BROOME TIOGA	36038 MAIN STREET BINGHAMPTON NY 13905	NCS PEARSON INC
BOCES CATTARAUGUS AL	1825 WINDFALL ROAD OLEAN NY 14760	ADVISORY SERVICES CORP

SCHOOL DISTRICT 25	30-48 LINDEN PL FLUSHING NY 11354	PEARSON EDUCATION INC
SCHOOL DISTRICT ARDSLEY UNION FREE	500 FARM ROAD ARDSLEY NY 10502	STERLING LIFE INSURANCE CO
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
SCHOOL DISTRICT OF ERIE PA DIEHL ELMNTRY	ATTENTION: REBECCA POWIERZA 148 WEST 21S T STREET ERIE NY 16502	OFFIC

COUNTY OF NEW YORK	60 LAFAYETTE STREET NEW YORK NY 10013	UBS SECURITIES LLC
COUNTY OF NIAGARA	10 ECKERSON AVENUE AKRON NY 14001	EXAMINATION MGMT SERVICES INC
COUNTY OF NY	31 CHAMBERS ST NEW YORK NY 10007	SABRE HOLDINGS CORP
COUNTY OF ONEIDA	DPW DIV OF ENGINEERING 6000 AIRPORT RD ORISKANY NY 13424	DELL USA LP
COUNTY OF ONONDAGA	421 MONTGOMERY ST SYRACUSE NY 13202	ONONDAGA COUNTY DEPT OF FINANCE
CITY OF BINGHAMTON	38 HAWLEY ST CITY HALL BINGHAMTON NY 13901	NATIONWIDE MUTUAL INSURANCE CO
CITY OF BINGHAMTON POLICE DEPT	38 HAWLEY ST BINGHAMTON NY 13901	RELX INC & AFFILIATES
TOWN OF BERGEN HIGHWAY DEPT	PO BOX 591 BERGEN NY 14416	FASTENAL COMPANY
TOWN OF BERLIN	PO BOX 307 BERLIN NY 12022	ACUITY SPECIALITY PRODUCTS INC
TOWN OF BETHLEHEM DPW	143 NEW SALEM RD S VOORHEESVILLE NY 12186	COCA COLA REFRESHMENTS USA INC
TOWN OF BIG FLATS	476 MAPLE ST LOWER FLOOR BIG FLATS NY 14814	SYSTEMAX INC

TOWN OF BINGHAMTON	279 PARK AVE BINGHAMTON NY 13903	OFFICE EQUIPMENT SOURCE INC
VILLAGE OF ALBION	35 E BANK ST # 37 ALBION NY 14411	SAFETY KLEEN SYSTEMS INC
VILLAGE OF ALEXANDRIA BAY	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF ALEXANDRIA BAY MUNICIPAL POLI	110 WALTON ST ALEXANDRIA BAY NY 13607	AMBIT HOLDINGS LLC
VILLAGE OF AMITYVILLE	C/O ATTN DEIRDRE PARKER OFFICE HIGHWAY E MPLOYEES AMITYVILLE NY 11701	AFLAC OF NEW YORK
VILLAGE OF AMITYVILLE	21 IRELAND PLACE AMITYVILLE NY 11701	FIRST AMERICAN TITLE CO

  

Interested entities [including individuals] may begin searches via  http://www.osc.state.ny.us/ouf/index.htm

New York's workplace safety statutes control with respect to work-related injuries suffered working in a building owned by the NY NJ Port Authority

Supreme Court denied the motion of  Port Authority of New York and New Jersey [Authority] to dismiss the New York State's Labor Law §§240(1) and 241(6) claims as against it.

In response to the Authority's appeal, the Appellate Division unanimously affirmed the lower court's ruling, explaining that the lower court had properly rejected the Authority's arguments that as "a bistate entity created by a federally approved compact cannot be held liable under Labor Law §§240(1) or 241(6) for injuries the plaintiff allegedly sustained while working in a building owned by the Authority.

The Compact Clause of the United States Constitution, said the court, is not implicated by the application of such New York workplace safety statutes to the Port Authority work site located in New York, which does not encroach on federal supremacy (see Cuyler v Adams, 449 US 433,

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00365.htm

Seeking a court order limiting the scope of a public official's inquiry

The Nassau County Comptroller' issued a press release announcing the audit of the "finances and operation" of the Town of Hempstead's  animal shelter. The press release indicated that the audit was "precipitated after receiving alarming complaints" alleging "animal neglect, unnecessary deaths, unsanitary conditions, and unqualified staff."

In a proceeding pursuant to CPLR Article 78 characterized as being in the "nature of prohibition,"* the Town's counsel had argued that "any authority of the County Attorney to audit the Town or its departments was limited to an examination of financial affairs." The County Comptroller, on the other hand, contended that he was authorized to undertake not only financial audits, but also "performance audits" as well.

Supreme Court's ruling prohibited the Comptroller him from "acting in excess of his jurisdiction" and quashed certain subpoenas issued by him served on the Town of Hempstead Animal Shelter.

Finding that the County Comptroller's authority to audit the Animal Shelter was limited to "a fiscal examination only," and that the subpoenas, to the extent they sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures," fell outside the scope of his authority, ruled that the County Comptroller's authority to audit the animal shelter was limited to "a fiscal examination only" and quashed the subpoenas that sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures."

The Comptroller appealed and the Appellate Division said that it disagreed with the Supreme Court's conclusion that certain of the materials which were the subject of the subpoenas fell outside of the County Comptroller's subpoena and audit authority.

The court explained that the Nassau County Charter provides that the County Comptroller shall "examine and audit of his own motion or when directed to do so by resolution of the County Legislature, the accounts and records of any town or special district and make reports from time to time when requested by the County Executive or County Legislature on the financial condition of the county or any [and] all of its political subdivisions."

Further, the Appellate Division noted that the Charter provided that several County officials, including the County Comptroller, "shall have the power to . . . compel the attendance of witnesses and the production of books and papers." Notwithstanding the Town's contentions to the contrary, the Appellate Division said that "under the plain language of the Charter, the County Comptroller's general authority to "examine and audit . . . accounts and records," citing Charter §402[6], "which may be exercised sua sponte, is not restricted by the subsequently stated authority to make reports on financial conditions upon request."

The court opined that "the broad language of the Charter" signifies that the powers and duties conferred upon the County Comptroller "go beyond the verification of financial records and internal controls" and, citing McCall v Barrios-Paoli, 93 NY2d 99, concluded that the Town "failed to demonstrate that the County Comptroller was proceeding in excess of his authority or jurisdiction."

* The writ of prohibition is one of number of the ancient “common law” writs and is 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."  Other such ancients writs include the writ of injunction - a judicial order preventing a public official from performing an act; the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform; "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” [by what authority]. 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/2020/2020_00284.htm