Establishing regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19

New York State Senator Sue Serino has introduced a bill, Senate 8996, that would require the New York State Health Department to submit a plan to establish regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19, or any other sickness related to a pandemic, to a nursing home, adult care facility or assisted living residence where such individual would reside in safety. 

The bill provides that the Department of Health, in consultation with organizations representing hospitals, nursing homes, adult care facilities and assisted living residences, shall develop a plan to establish regional step-down facilities in the event of a second wave of COVID-19 or another pandemic and requires the Health Commissioner to submit such plan to the governor and legislative leaders of the Senate and Assembly by no later than October 15, 2020.

Senator Serino's Memorandum in Support of Bill states that "[one] of the biggest lessons learned from [the COVID-19 crisis was] that New York, along with many other states and countries, [was] simply unprepared to handle a pandemic of this magnitude. While concern that hospitals would be overwhelmed at the height of the pandemic was justified, sending COVID-19 positive patients into nursing homes among our most vulnerable population defied commonsense.

"OVID-19, and many believe this to be a serious undercount as New York State, contrary to the practices of other states with major COVID-19 outbreaks, only count residents who died in the facilities and excluded those who contracted the virus in the facility but later died in the hospital. Many within nursing homes have compared the spread of COVID-19 within the facility once it has entered to wildfire. This analogy is particularly troubling given that more than 6,300 hospital patients were released into nursing homes." 

The Commissioner would also be required to review and update the regional step-down facility plan biennially, or more frequently if the Commissioner it deems necessary. The plan would be posted publicly on the Department of Health's website.

No companion bill has yet been introduced in the New York State Assembly.

 

 

Crediting service for certain benefits base on employment in another jurisdiction

In this CPLR article 78 proceeding, an employee of the City of New York [Plaintiff] sought judicial review of a New York City Department of Environmental Protection [DEP] determination that she was not entitled to leave-time credits based on her 17 years service with the City University of New York [CUNY]. Supreme Court denied Plaintiff's petition and dismissed the proceeding, explaining that “employees in the classified service of the City University of New York have not been employees of an agency of the City of New York but have been employees of a separate civil service jurisdiction, the City University of New York.”

According, the court held that DEP's decision that Plaintiff was not a City employee who was covered by the Leave Regulations during the times that she was employed by CUNY "was legally correct and not arbitrary and capricious."

Nonetheless, opined Supreme Court, "if the Plaintiff could show that CUNY and the City had an agreement or MOU [Memorandum of Understanding] permitting the City to recognize her accrued CUNY leave credits, she might be entitled there such credit, noting that "the State has promulgated regulations recognizing a State employee’s right to the transfer of leave credits accrued in the course of other public employment where the prior public employer entered into a reciprocal agreement or MOU with the State for recognition of such leave credits," citing 4 NYCRR 24.1.* 

Insofar as Plaintiff's claim was concerned, CUNY and the City had not entered into such a reciprocal agreement or MOU. Thus, said the court, DEP rationally concluded that there was no basis for crediting the Plaintiff any of her service as a CUNY employee in connection with her City-service leave benefits, or the rate of accrual of those benefits.** In contrast, where an employee resigns one position with the City that was covered by the Leave Regulations and takes another position with the City also covered by the Leave Regulations, the employee does not lose any leave rights or balances, regardless of whether the new position carries the same or a different title, or is in the same or a different agency.

With respect to Plaintiff's contentions, in the words of the court, "A review of applicable law and the administrative record reflects that, since July 1, 1979, CUNY employees have not been employees of the City, and CUNY and the City never entered into an agreement or MOU covering this subject matter." Accordingly, an employee’s length of City service determines his or her rate of accrual of leave balances and the length of such service also is considered in connection with seniority for layoff purposes, and may affect the level of recurring benefits under a collective bargaining agreement.

In other words, should an employee resigns a position with the City that was covered by the Leave Regulations and takes a position with a public employer other than the City, or a City position not covered by the Leave Regulations, "the employee may indeed lose leave rights, including any favorable rates of leave accrual that were in effect as the time of resignation" nor may the employee carry over leave balances in the event that he or she returns to City service in the future.

Accordingly, Supreme Court held that DEP had properly concluded that the Plaintiff's leave-time credits and rate of accrual must be based on a start date of November 2, 2014, when she began her employment with DEP. 

* 4 NYCRR 24.1 is applicable to employees of State executive agencies as the employer. See, also, 22 NYCRR 24.12, which provision is applicable to nonjudicial employees of the State Unified Court System. 

** See Kaslow v City of New York, 23 NY3d 78.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_32931.pdf

Certain teachers employed by the New York City Department of Education seek court order permitting them to "telework remotely"

A number of teachers [Petitioners] employed by the New York City Department of Education [DOE] initiated a CPLR 78 action seeking a court order permitting them to "telework remotely" rather then report to work in person. The Petitioners:

(1) Challenged as arbitrary and capricious the July 15, 2020, DOE's remote teaching policy for the 2020-2021 school year issued in response to the Covid-19 pandemic; and

(2) Sought a court order compelling DOE to allow Petitioners “and all others similarly situated" to telework remotely on full salary or without loss of leave.

Essentially Petitioners’ motion sought a temporary restraining order [TRO] prohibiting DOE from forcing Petitioners to report to work in person, charging their "Cumulative Absence Reserve and sick leave days" as the result of "telework" related absences, if any, and compelling DOE to permit Petitioners to teach remotely.

Supreme Court, after oral argument, opined that "In evaluating the balance of equities on a motion for a preliminary injunction, courts must weigh the interests of the general public as well as the interests of the parties to the litigation,” citing Amboy Bus Co., Inc. v Klein, 2010 NY Slip Op 31356[U]. To obtain an injunction, said the court, a plaintiff is “required to show that the irreparable injury to be sustained is more burdensome to him than the harm that would be caused to the defendant through the imposition of the injunction.”

Explaining that ".... several Petitioners have already been granted leave to work remotely until at least September 21, 2020, or have simply declined to return in-person until further notice," the court held that "the balance of the equities — by an exceedingly thin margin — favors Petitioners."

Supreme Court then granted the TRO solely to the extent that DOE may not, "until further order of the Court:"

a. Compel the named Petitioners to report to work in person;

b. Deny the named Petitioners the ability to work remotely; and

c. With respect to the named Petitioners, deny or deduct salary and/or leave time for remote work.

Supreme Court then ordered the parties to telephone the court to discuss the logistics of an expedited hearing on the preliminary injunction and Petition.

The Supreme Court's decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_33016.pdf

 

 

Termination for ordinary disability pursuant to §73 of the Civil Service Law

§73 of the Civil Service Law, "Separation for ordinary disability," in pertinent part provides that in the event an employee on leave for ordinary disability pursuant to §72 of the Civil Service Law has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "his employment status may be terminated and his position may be filled by a permanent appointment."

The Town terminated a police sergeant [Petitioner] employed by the Town's Police Department pursuant to Civil Service Law §73. Petitioner, contending that the determination to terminate his employment was made in violation of lawful procedure and was affected by error of law, challenged the Town's action. Supreme Court denied Petitioner's CPLR Article 78 petition and dismissed the proceeding.

The Appellate Division subsequently affirmed the Supreme Court's ruling, opining that although an administrative determination may be annulled when it "was made in violation of lawful procedure [or] was affected by an error of law" there were no relevant issues of fact that would have necessitated a post-termination hearing, citing Prue v Hunt , 78 NY2d 364.* 

However, a §73 termination is not pejorative and a former employee may, within one year after the termination of the disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. 

If the former employee is found medially qualified to perform the duties of his former position he is to be reinstated. In there is no vacancy to which he may be appointed, the former employee's name is to be placed on a preferred list. Further, the individual is eligible for appointment to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. 

* NYPPL's summary of the Court of Appeals' decision in Prue is posted on the Internet at https://publicpersonnellaw.blogspot.com/2012/02/pre-termination-hearings-required-when.html 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_04944.htm

 

 

Attorney disciplined after pleading guilty to misprision of felony

Misprision of felony" originated in English common law and constitutes a crime  wherein an individual having knowledge that a felony has been committed fails to inform the appropriate authorities of that event. 

This Appellate Division decision reports that an attorney [Respondent] "pleaded guilty, in the United States District Court for the Western District of New York to misprision of a felony* in violation of 18 USC §4." Respondent had served as the settlement attorney representing "The Funding Source" [TFS] in a number real estate transactions that involved loans insured by the Federal Housing Administration [FHA].

In the course of his participation in a number of New York State real estate transactions the Appellate Division found that Respondent had learned that his co-defendants were engaged in a scheme to fraudulently obtain mortgages on behalf of unqualified borrowers that were insured by the FHA. This involved the submission of certain documents knowing that certain information in those documents was false.** 

The Appellate Division's decision reports that although Respondent did not know the full extent of the scheme, he "became aware he was being used to defraud financial institutions and he failed to notify authorities of his codefendants' use of fraud to obtain funds from TFS." The decision also notes that "Respondent also took affirmative steps to conceal the fraud by signing, or having his paralegal sign, documents sent to the banks."

Respondent, said the court, had received fees in transactions in which he served as settlement attorney. In other transaction, in which Respondent was one of the three sellers and also represented the purchaser, the Appellate Division noted that he had received his initial investment plus a profit. 

With respect to such monies, the Appellate Division observed that "Respondent has paid restitution ... for the seven transactions in which he had served as settlement attorney."

Ultimately the Appellate Division granted the parties' in the instant action joint motion for discipline by consent and Respondent was "suspended from the practice of law in the State of New York for a period of two years, effective ... April 18, 2019, and until further order of this Court." 

* Citations to selected New York State decisions referencing "Misprision of Felony" are set out below. Click on the text highlighted in colorto access the text of the decision.

Matter of Fishman, 22 A.D.3d 100, 2005 NYSlipOp 06802

Matter of Calonge v Calonge, 52 AD3d 1111, 2008 NYSlipOp 05630;

Matter of Marino, 73 A.D.3d 5, 2010 NYSlipOp 01800;

Matter of McKenzie, 177 AD3d 134, 2019 NYSlipOp 06729;

People v Jenkins, 55 Misc 3d 1207(A), 2017 NYSlipOp 50449(U); and

People v Williams, 20 AD3d 72, 2005 NYSlipOp 04317.

** Respondent stipulated that [1] he stands convicted of a "serious crime" (see 179 AD3d 19);  [2] he violated the New York Rules of Professional Conduct; and [3] he is subject to discipline by the Appellate Division pursuant to 22 NYCRR 1240.12(c)(2). 

The instant decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04813.htm