Firefighter's application for accidental disability retirement benefits rejected based on substantial evidence that the injuries were not the result of an accident

A firefighter [Plaintiff] filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained during seven different incidents occurring between 2006 and 2017. ERS, however, denied Plaintiff's application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law §363. Ultimately Plaintiff withdrew four of the seven incidents, and the sole issue to be resolved was whether these incidents "qualified as accidents."

The ERS Hearing Officer denied Plaintiff's application, finding, among other things, that the cited incidents occurred during the course of Plaintiff's routine employment duties and were risks inherent in the performance of those duties. The Comptroller sustained the Hearing Officer's determination and Plaintiff initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

"As the applicant, [Plaintiff] bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law ... [the Appellate Division said that the Comptroller's] determination on that point will be upheld if supported by substantial evidence in the record as a whole. Further, said the court, "for the purposes of §363, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," citing Matter of Kenny v DiNapoli, 11 NY3d 873 and other court decisions. In contrast, opined the Appellate Division, "[a]n injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

The decision reports that Plaintiff "does not dispute, and the record indeed establishes, that [Plaintiff] was engaged in the performance of his ordinary firefighting duties during each of the incidents at issue" which involved encountering smoke, water, tangled hose lines, reduced visibility and debris, falling ice that 'could have been reasonably anticipated' as well as the corresponding threat of tripping or falling due to such conditions."

Concluding that substantial evidence supported ERS's finding that the incidents at issue did not constitute accidents within the meaning of §363, the Appellate Division declined to disturb the Comptroller's decision.

Click HERE to access the Appellate Division's decision. 

Former town clerk to serve six months in county jail after pleading guilty to stealing public funds

New York State Comptroller Thomas P. DiNapoli reported that a former town clerk [Clerk] was sentenced to six months in County jail for stealing nearly $27,000 in public funds for her personal use after she pled guilty to a number of criminal charges including "grand larceny in the third degree/public servant (a class C Felony); two counts of tampering with public records in the first degree (a class D felony); scheme to defraud in the first degree (a class E felony) and official misconduct (a class A misdemeanor)."

Clerk's thefts, which were discovered during a joint investigation by the State Comptroller's office, Yates County District Attorney Todd Casella’s office and Yates County Sheriff Ronald Spike’s office, consisted of cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits and building permits. The Comptroller said the funds stolen were used by Clerk "to support her personal lifestyle, including trips to casinos and gambling websites."

Comptroller DiNapoli opined that “[w]hen a public servant steals taxpayer funds, it damages the public’s trust in government.” "A public office is a public trust and regrettably this town clerk acted contrary to their oath,” said Yates County Sheriff Spike. “I thank all involved in this criminal investigation, prosecution, and conviction, especially the New York State Comptroller’s office for their forensic work.”

Such misconduct by a public officer is referred to as "Jobbery" -- using one's public office or position of trust for ones' personal gain or advantage. Having taken advantage of the trust placed in her, Clerk will pay $26,729 in restitution as part of her plea agreement, of which she has already paid $20,000. 

Click HEREto access the full text of the Comptroller's statement.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at, investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Establishing a prima facie case of unlawful discrimination

In Joseph v. Leavitt, 465 F.3d 87, the United States Circuit Court of Appeal held that "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."

In the instant case, the Circuit Court indicated that only certain prongs of Plaintiff's prima facie case were in dispute, i.e., the extent to which Plaintiff suffered the alleged adverse employment action or actions and whether those actions occurred under circumstances that give rise to an inference of discrimination. Here, said the court, Plaintiff's employment was terminated, "which itself is, of course, an adverse employment action."

Noting that there were factual issues regarding whether the New York Police Department's [NYPD] investigating personnel's pre-termination conduct constituted an adverse employment action, the Circuit Court opined that "[v]iewing the evidence in a light most favorable to Plaintiff, a reasonable juror could infer that the investigators' consulted with certain NYPD units "not because of information linking [the Plaintiff to] terrorism but because of [Plaintiff's] national origin, ancestry, or religion. Further, the court indicated that under the circumstances, "[a] reasonable juror could also infer that, after the ... investigator did so, it resulted in a more searching investigation and harsher discipline than had [the NYPD] applied its standard investigative and disciplinary procedures.

The Circuit Court also concluded that Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred giving rise to an inference of discrimination, i.e., statements made by NYPD personnel in which "they noted [Plaintiff's] national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct." Further, the decision states that Plaintiff had set forth evidence that NYPD launched an investigation into Plaintiff and his family involving the NYPD personnel, which, arguably, "was a departure" from the NYPD's normal investigative procedures.

Accordingly, the Circuit Court concluded that Plaintiff provided "admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive" and Plaintiff's factual claims under the New York City Human Right Law must be analyzed "more liberally" than his federal discrimination claims.

Considering the fact that Plaintiff advanced sufficient facts to carry the heavier burden of establishing his federal claims, the Circuit Court said it had "no trouble concluding that he set forth sufficient facts to carry the lesser burden on his city claims," and remand the matter to the federal district court "for further proceedings consistent with this order." 

Click HEREto access the Second Circuit's decision.

Determining legislative intent in interpreting a statute

In a consolidated proceeding pursuant to Election Law Article 16, petitioners [Plaintiffs] sought judicial review a determination of the Suffolk County Board of Elections denying Plaintiffs' objections to a petition designating Kate M. Browning as a candidate in a primary election and sought a court order to compel the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot in that primary election and other relief.

Supreme Court granted Plaintiffs' petition and issued a "final order" compelling the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot. Supreme Court had concluded that Ms. Browning was ineligible to serve as a Suffolk County Legislator as a term limits provision in the Suffolk County Charter*  provided that "[n]o person shall serve as a County Legislator for more than 12 consecutive years".

Ms. Browning appealed and the Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division, noting that "[T]he plain language of the statute ... is the clearest indication of legislative intent," opined that Article II, §C2-5[B] does not expressly impose any total or lifetime term limit. Rather, said the court, "the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years." Citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, the Appellate Division said that in construing a statute, "words must be 'harmonize[d]' and read together to avoid surplusage."**

Accordingly, the court declared that the provision set out in the County Charter relied upon by Petitioners seeking the removal of Ms. Browning's name from the ballot in the primary election "should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term."

Thus, said the Appellate Division, Supreme Court should have denied the Plaintiffs' petitions and dismissed the proceeding.

* See Article II, §C2-5[B].

** Courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant. 

Click HERE to access the Appellate Division's decision.

A request for reconsideration of a final administrative determination does not extend or toll the running of the statute of limitations

The Petitioner [Plaintiff], a retiree, in this CPLR Article 78 challenged the appointing authority's [Town] decision denying his request to change his health insurance provider. The Town moved to dismiss Plaintiff's action, contending that it was untimely.

Supreme Court granted Town's motion for summary judgment and, in effect, dismissed the proceeding. Petitioner appealed but the Appellate Division affirmed the lower court's ruling, with costs.

In affirming the lower court's ruling, the Appellate Division:

1. Noted that an Article 78 proceeding must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner;

2. Explained that an administrative determination "becomes final and binding when 'the agency ... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ... the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'";

3. Pointed out that the party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the proceeding was commenced; and

4. Observed that "... a request for reconsideration of an administrative determination does not extend or toll the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration."

Here, said the court, the Town's determination denying Plaintiff's request to change his health insurance provider became final and binding no later than February 8, when the Plaintiff received notice of the denial by telephone and email. Accordingly, the Appellate Division concluded that Plaintiff's petition, filed in September, was untimely.

Click HERE to access the Appellate Division's ruling.