Application for accidental disability retirement benefits rejected on finding that the alleged disability was not suffered in the performance of the applicant's duties.

Plaintiff in CPLR Article 78 action appealed Supreme Court's dismissal of her petition seeking to have the court annul the New York City Employees' Retirement System's [NYCERS] determination denying Plaintiff's application for accidental disability retirement [ADR]. Plaintiff appealed.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division sustained Supreme Court's ruling, concluding that the denial of Plaintiff's application for ADR was "not arbitrary and capricious, but [was] based on credible evidence in the record."

The court noted NYCERS' findings that:

[1] Plaintiff was neither physically nor mentally incapacitated based on her medical and mental health records, an independent psychiatric examination, and her interview before NYCERS' Medical Board;

[2] There was no contemporaneous evidence showing the circumstances of a physical assault on Plaintiff by her coworker as described by the Plaintiff during the administrative proceeding on the date she set out in her application for ADR; and

[3] The alleged physical and psychological injuries caused by the alleged physical assault did not result from an accident or arise in the course of Plaintiff's performance of her duties.

As to Plaintiff's claim that she was deprived of due process, the Appellate Division said that allegation "is belied by the record showing that she was given an adequate opportunity to present her case before [the NYCERS]."

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2020/2020_06229.htm.

 

Governor Cuomo releases guidelines on testing protocol for schools to reopen in red or orange micro-cluster zones

On October 31, 2020, Governor Andrew M. Cuomo released guidelines for schools to reopen in red and orange micro-cluster zones in order to help keep schools in focus areas open to in-person instruction. The guidelines require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily. Impacted schools can reopen as early as Monday. However students and faculty must be able to provide a negative COVID-19 test result prior to going back to the classroom.  

New York State will provide rapid test kits for schools wishing to participate.

"In the micro-cluster zones, we've been working with schools in the red and the orange zones. The schools, private schools, Catholic schools, yeshivas, want to be open in the red and orange zones, and we've been working with them to try to find ways to keep people safe but allow children to go to school," Governor Cuomo said. "We have agreed with them on a protocol that keeps people safe and allows children to be educated."

In order for a school to reopen in a red or orange micro-cluster zones, schools must:

Remain closed for at least 4 calendar days after the zone designation is announced (48 hours to ensure lack of infectious contact in the school, and additional time for testing), and may re-open as early as the 5th calendar day.

Ensure that no person may attend in-person on the campus without first receiving a negative test result, this applies to faculty/staff as well as students.

Schools may reopen after these steps are taken, with students and faculty/staff who are positive or close contacts of positive cases appropriately excluded from school grounds. Additionally, the test result must be no more 7 days past the date of specimen collection on the day in-person learning reopens and date of specimen collection must be after date the zone was established.

After a school reopens in a red or orange micro-cluster zone, vigilant symptom and exposure screening must be conducted daily and must follow the below guidelines:

25% of the in-person learning school community (both students and faculty/staff) must be tested per week.

The school should ensure that it provides opportunities to test on school grounds, or otherwise facilitates testing and accepts test results from healthcare providers.

If the school does not hold a testing event or provide testing on school grounds, test results provided to the school as part of the 25% testing of the population must be received within 7 days from the date of specimen collection and specimen collection must be after the school reopens.

Each week the 25% of the school population tested must be composed of unique individuals who have not previously been tested for the surveillance screening, as part of the weekly 25% testing until the fifth week of weekly testing at which point the individuals who participated in the first week of testing should be tested again.

Members of the school community who test positive must isolate according to established guidelines.

Contact tracing must be performed to ensure that contacts to newly identified positive individuals are quarantined according to established guidelines.

New York State will provide schools with rapid test kits if requested. The schools must provide certified personnel (with necessary laboratory permits) to do the tests, and all results must be entered into ECLRS and reported on the school survey to the NYS COVID-19 Report Card.

Schools that cannot meet the reopening requirements must remain in remote learning for the duration of the zone designation. If the 25% of the school population random sampling generates a minimum of 9 cases, or if for a sample size of more than 300 weekly tests, achieves a positivity rate of 2% (6 cases or more depending on size) in New York City, or 3% (9 or more cases) outside of the city, then the school will be required to close. Reopened schools that fail to comply with these requirements could be subject to Section 16 orders, or other fines and penalties.

Qualified privilege in an action seeking damages for alleged defamation

 In this action to recover damages for alleged defamation, the several defendants [jointly "Respondents"] separately appealed from an order of Supreme Court denying their separate motions to dismiss the complaint insofar as asserted against each of them.

The president [Plaintiff] of a local branch of a labor union representing the workers of the Respondent private sector employer [Company] commenced this action to recover damages for defamation, alleging that the Company, together with the Company's owner [Owner]  and the Company's attorney [Attorney] made certain defamatory statements about Plaintiff, which were then widely distributed to the Company's employees in an effort to influence the outcome of an affiliation contest between the Plaintiff's union and a rival union.

Plaintiff further alleged, among other things, that the several Respondents made the defamatory statements with knowledge of their falsity and for the purpose of damaging the Plaintiff's reputation among the Company's employees and impugning his ability to continue acting as president of the union's local branch. The Plaintiff also alleged that, as a result of the conduct of the several Respondents he suffered actual, compensable damage to his reputation.

Affirming the decision of the Supreme Court, the Appellate Division explained that where, as here, either party to a labor dispute is alleged to have circulated false and defamatory statements during the course of labor negotiations, "a qualified privilege attaches," which renders the action preempted by federal law. In order to overcome this qualified privilege and retain state court jurisdiction over the matter, the court said that the plaintiff's pleadings must allege both that the statements were made with malice and that they injured the plaintiff. *

Holding that contrary to their contention, and with respect to "the appellants appearing separately and filing separate briefs," the court opined that Plaintiff's pre-answer motions must be assumed to be true and are sufficient to overcome the qualified privilege relied upon by these appellants.

Accordingly, the Appellate Division affirmed the Supreme Court's determination denying the separate motions of the appellants appearing separately to dismiss the complaint insofar as asserted against each of them, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

* See O'Neil v Peekskill Faculty Assn., 120 AD2d 36 at 42

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06090.htm

Employee's failure to the give employer give due notice of the accident and other factors defeats employee's claim for a benefit arising from the collective bargaining agreement

Petitioner [Plaintiff] filed a petition pursuant to CPLR Article asking the Supreme Court  to annul the New York City Transit Authority's [NYCTA] decision to deny her differential pay for an injury she allegedly sustained while flying to Nevada for a training course. Plaintiff had traveled to Nevada on September 25 and attended the training course through September 28. On the evening of September 28, she sought treatment for bilateral calf pain and was diagnosed with deep vein thrombosis [DVT], which was allegedly caused by the long flight. Plaintiff notified her supervisor of the diagnosis on September 29, and ultimately received Worker's Compensation benefits for her injury.

On the following January 9, Plaintiff submitted a request for "differential pay," a benefit available to NYCTA employees under the collective bargaining agreement between Plaintiff's union and NYCTA. NYCTA denied Plaintiff's request contending [1] Plaintiff had reported the injury late and [2] Plaintiff was not engaged in a workplace activity when she sustained the injury.

The Appellate Division affirmed Supreme Court's determination that NYCTA's decision denying Plaintiff's request for the "differential pay" benefit was supported by a rational basis noting that "[t]he rules for receiving differential pay state that the employee must have sustained an accidental injury while engaged in the performance of his/her assigned duty for NYCTA, and such accidental injury was the direct cause of the employee's incapacity for work." Further, said the court, the rules require, among other things, "that the employee give due notice of the accident" and NYCTA reasonably found that Plaintiff "failed to provide timely notice of her injury, as she reported it four days after her flight." Nor did she specify that her injury was work-related but stated only that her  medical condition required time off from work.

In addition, the Appellate Division opined that Plaintiff failed to meet the other requirements for the "differential pay" benefit as there was "uncertainty regarding whether she was engaged in an assigned work activity when the injury occurred, since traveling to work is not considered a workplace activity," citing Greene v City of New York Dept. of Social Servs., 44 NY2d 322, and Plaintiff's "medical records showed that she had a personal history of DVT and other comorbidities."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05131.htm

 

An arbitrator's determination may be based on hearsay testimony

Supreme Court confirmed an arbitration award terminating petitioner's [Educator] employment as a tenured teacher.

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the  arbitrator's determination that Educator's teaching performance and judgment were poor during the relevant three-year period has a rational basis in the record and was not arbitrary and capricious.

The record, said the court, includes 10 substantiated written observational reports and testimony from multiple school administrators demonstrating inadequate teaching, efforts at remediation, and lack of improvement over the three-year period. In addition there was evidence that the Educator behaved unprofessionally toward a student.

Although Educator argued that there was no direct evidence substantiating certain of the charges against her, the Appellate Division noted that "an arbitrator's determination may be based on hearsay,"* citing Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568. Further, opined the court, "courts may not reweigh the evidence or substitute their own credibility determinations for those of the arbitrator."

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that under the circumstances, the arbitrator's imposing the penalty of termination did not shock its sense of fairness.

* Concerning the use of hearsay evidence in administrative proceedings, it is well established that "[h]earsay evidence can be the basis of an administrative determination" [see Gray v Adduci, 73 NY2d 741]. Notwithstanding the admissibility of hearsay as competent evidence, an employee may not be found guilty of charges solely on the basis of hearsay; some real evidence is required [Brown v Ristich, 36 NY2d 183; Carroll v Knickbocker Ice Co., 218 NY 435].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05586.htm