Court holds a video of the event, together with the testimony given at his disciplinary hearing, was substantial evidence that the Petitioner was guilty of misconduct

A former New York City police officer [Petitioner] appealed his dismissal from his position with the New York City Police Department [Department] after a disciplinary hearing in which the hearing officer found that Petitioner wrongfully took money in the course of a police operation, concealed his actions from his fellow officers, and then twice made false statements in the course of an investigation into the incident.

The Appellate Division unanimously confirmed the Department's decision and dismissed Plaintiff's petition. The court noted that the Department's determination that Petitioner was guilty of misconduct was supported by substantial evidence as, in addition to video evidence of the incident, Petitioner's own testimony established that he took money and pocketed it during the course of a police operation and then failed to give the money to the arresting officer at the scene.

As the arresting officer had testified that Petitioner never subsequently gave the money in question to him, the Appellate Division said that the Department  "rationally concluded that [Petitioner's] actions as depicted on video, including turning away from the other officers while he pocketed the money, were inconsistent with [Petitioner's  claim he was attempting] merely to safeguard the money."

In addition, the court opined that the Department also rationally concluded that Petitioner's other explanations for his actions were not credible.

Addressing Petitioner's contention that the Department was bias against him, the Appellate Division explained that this argument was unavailing "in the absence of any proof that the outcome of the proceeding flowed from the alleged bias."

The court concluded that, under the circumstances, the dismissal of Petitioner from his employment with the Department did not shock its judicial conscience, citing Matter of Kelly v Safir, 96 NY2d 32, among other decisions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03472.htm

Filing a claim for workers' compensation benefits death benefits in cases where the cause of death was suicide

An employee [Decedent] sustained a work-related injury to his head and his claim for workers' compensation benefits was thereafter established. Subsequently his family feared that Decedent had attempted suicide and had him hospitalized. Discharged from the hospital, Decedent died by suicide five days later.

Decedent's surviving spouse [Petitioner] filed a claim for workers' compensation death benefits. After conducting a hearing, a Workers' Compensation Law Judge [WCLJ] granted the claim. The Workers' Compensation Board [Board] affirmed the WCLJ's findings and determination. The Appointing Authority, and its third-party administrator [hereinafter collectively [Employer] appealed the Board's decision.

Initially addressing a procedural issue, the Appellate Division rejected the Employer's contention that the Board violated Workers' Compensation Law §23 when it adopted the findings of the WCLJ without a statement setting forth the facts upon which it had relied*.

Turning to the merits of Employer's appeal, the court, citing Matter of Delacruz v Incorporated Vil. of Freeport, 175 AD3d 1739, noted that "[i]t is well settled that workers' compensation death benefits may not be awarded 'when the injury has been solely occasioned ... by wil[l]ful intention of the injured employee to bring about the injury or death of himself [or herself].'" Further, opined the Appellate Division, "[W]orkers' compensation death benefits may be awarded for a suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury."

In Workers' Compensation claims cases involving a suicide the Appellate Division said that the rule is that "the causal relationship between an industrial accident and a resulting mental condition need not be direct and immediate. It is sufficient that the industrial accident is a contributing cause, even if it precipitated [the] decedent's preexisting mental condition."

Finding that the Board's determination that Decedent's suicide was causally related to his work injury was supported by substantial evidence, the Appellate Division said it would not disturb the Board's determination.

* §23 of the Workers' Compensation Law provides that Board decisions shall include "a statement of the facts which formed the basis of its action on the issues raised."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04222.htm

Appeal to the Commissioner of Education dismissed where Petitioner initiated litigation raising substantially similar claims and seeks substantially similar relief

Interim Commissioner of Education Shannon Tahoe* dismissed Petitioner's appeal challenging the  Board of Education's appointing a new Superintendent founded on allegations that the Board violated certain of its own policies in appointing the Superintendent. Without addressing the merits of Petitioner's appeal, the Commissioner dismissed the appeal "given the pendency of a related civil action."

Commissioner Tahoe explained that Petitioner commenced an action in Supreme Court, Westchester County raising substantially similar claims, and seeking substantially similar relief, as in the instant appeal.** In the civil action, Petitioner asked the court, among other things, to [1] vacated the Board's appointment of a new superintendent and [2] compel the Board to follow its own policies and procedures in the appointment of a new superintendent.

Citing Appeal of Moriarty, 57 Ed Dept Rep, Decision No. 17,265, among other decisions of the Commissioner of Education, Commissioner Tahoe said "Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that [P]etitioner has elected to raise in Supreme Court, particularly where she seeks the same relief that she seeks in this proceeding," and dismissed Petitioner's appeal.

* Commissioner Tahoe has submitted her resignation as interim Commissioner, to take effect August 13, 2020, to the Board of Regents.

** See Minaya v. City School District of New Rochelle., et. al., Index. No. 67873/2019, filed Oct. 26, 2019.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume60/d17879

Nonfeasance by a public official

A decision by New York State’s highest court sustained the conviction of a police officer who had taken part in a plot to prevent the arrest of a teenager accused of burglary and whose father had personal connections to the officer's Police Department.

The Court of Appeals said that it is not “discretionary” for government officials to abdicate their responsibility to pursue wrongdoing if that decision is being made to benefit someone personally.

The court explained that “... a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance,” in upholding the police official’s conviction. In the words of the court, “... when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance.”

Other such transgressions include misfeasance in office, acting unlawfully, and malfeasance in office, performing official acts badly.

The decision is posted on the Internet at: 
https://www.leagle.com/decision/innyco20170209276

The anatomy of an application for accidental disability retirement benefits

The genesis of this case was the determination by the Medical Board of the New York City Fire Department Pension Fund [Medical Board] that although the applicant [Plaintiff] for accidental disability retirement benefits [ADR] was disabled, his disabling condition was not the result of a work-related injury. The Medical Board's decision was adopted by the Board of Trustees of the New York City Fire Department Pension Fund [Board of Trustees] adopted the recommendation of the Medical Board and denied the petitioner's application for ADR in a tie vote.

Plaintiff commenced a CPLR Article 78 proceeding to review the determination of the Board of Trustees. Supreme Court denied Plaintiff's petition and dismissed the proceeding, finding that the determination was supported by credible medical evidence and thus was not arbitrary and capricious. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division said agreed with the Supreme Court's determination rejecting Plaintiff's petition and dismissing the proceeding, explaining that in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Court of Appeals, indicating that a New York City firefighter is entitled to ADR benefits after a medical examination and investigation shows that the firefighter is physically or mentally incapacitated for the performance of city-service "as a natural and proximate result of an accidental injury received in such city-service."

The Appellate Division then described the procedure following in evaluating an application for ADR as involving a two-step process:

1. A medical examination of the applicant for ADR followed by a three-physician member pension fund Medical Board, "charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application"; and

2. If the Medical Board concludes that the firefighter is disabled, it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

The court opined that the Board of Trustees is entitled to rely on the advisory opinion of the Medical Board regarding causation. However, the burden of establishing that a disability is causally related to a line-of-duty accident rests with the applicant for ADR benefits in the event the firefighter ADR benefits are denied.

In the event a vote by a Board of Trustees to retire a city service member under ADR results in a tie, the Board of Trustees is required to retire the member under Ordinary Disability Retirement [ODR] with ODR benefits. Significantly, in the event the firefighter challenges being placed on ODR by initiating a CPLR Article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless the court determines that "as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Under this standard, said the Appellate Division, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand."* Further, as the Appellate Division noted in Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, courts "cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board."

The court said that the Medical Board's determination that the Plaintiff's disability was causally related to chronic degenerative joint disease was supported by credible evidence consisting of the operative report and other relevant medical records including an MRI report." The decision also notes that "the Medical Board provided an 'articulated, rational, and fact-based medical opinion' for how it came to its conclusion."

Although the Medical Board's findings differ from those of Plaintiff's surgeon, who found that it was likely that Plaintiff's condition "was causally related to work injuries and that [Plaintiff] may have exacerbated a pre-existing condition," the Appellate Division observed that "[w]here conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Further, opined the Appellate Division, "It was not arbitrary or capricious for the Board of Trustees to find that [Plaintiff] did not establish that his disability was the natural and proximate result of his line-of-duty accident" and the Board of Trustees was entitled to rely on the Medical Board's recommendation in voting to deny ADR benefits to the petitioner, and found that "there is no basis herein to disturb the Board of Trustees' determination."

* Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03910.htm