Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department

Rudolph W. Giuliani, Esq. challenged the Attorney Grievance Committee for the First Judicial Department's seeking a court order pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending him from the practice of law based upon his alleged violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC).

Concluding that there was uncontroverted evidence that Mr. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020, the Appellate Division opined that "These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client."

Conceding that interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent's violation of the Rules, the Appellate Division held that Mr. Giuliani's conduct "immediately threatens the public interest and warrants interim suspension from the practice of law." 

Accordingly, the court granted the Attorney Grievance Committee's motion and suspended Mr. Giuliani from the practice of law in the State of New York "until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court."

Click Here to access the court's decision.

Employee's workers' compensation claim for alleged work-related stress and post-traumatic stress disorder rejected

A police officer [Claimant] responded to a call that resulted in the arrest of three individuals. Several weeks later Claimant was interviewed concerning that incident as part of an Internal Affairs investigation. The following day Claimant was suspended from his position and informed that he would receive a written notification of charges.

Claimant thereafter sought mental health treatment stemming from the incident and his resulting suspension. Ultimately Claimant filed a workers' compensation claim alleging his stress, anxiety and post-traumatic stress disorder was caused by an allegedly unlawful disciplinary action.

A Workers' Compensation Law Judge determined that the claim was not compensable as Claimant's psychological injury was "a direct consequence of a lawful personnel decision involving a disciplinary action."*

Claimant then submitted an administrative appeal in which he contended "the disciplinary action was unlawful." The Workers' Compensation Board [Board] affirmed the decision of the Workers' Compensation Law Judge.

Claimant next initiated a judicial appeal in which he contended that the Board's decision was not supported by substantial evidence because his suspension did not constitute a disciplinary action, or another personnel action, within the meaning of §2(7) of the Workers' Compensation Law.

The Appellate Division sustained the Board's determination, noting that the record indicated that the Claimant argued, both at the administrative hearing and at the subsequent administrative review that followed, that his suspension was a disciplinary action.

The court explained that to the extent that Claimant "now advances a contrary argument for the first time on appeal," that claim "is unpreserved for [its] review."

* See https://publicpersonnellaw.blogspot.com/2011/09/depression-resulting-from-being-served.html

Click HERE to access the Appellate Division's ruling.

 

Judicial review of a denial of an application for accidental disability retirement benefits

In this appeal challenging the denial of the Plaintiff's application for accidental disability retirement benefits, the Appellate Division noted that:

1. In order to be entitled to accidental disability retirement benefits, "the burden is on the applicant to demonstrate that his or her incapacitation was the natural and proximate result of an accident sustained while in service";

2. The law is settled that the Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld"; and

3. The determination with respect to whether an applicant was in service at the time he or she suffered the injury turns on whether "he or she was performing job duties at the time of the injury."

The situation before the Appellate Division in this action involved a police officer [Plaintiff] on limited duty as the result an incident that occurred in 2000 that led to her being assigned to desk duty at her precinct.

In 2011, and still on "limited duty," the Plaintiff accompanied a fellow officer to pick up breakfast for the precinct. Returning to the precinct after picking up the breakfast meals, Plaintiff was injured when she slipped on ice in the precinct parking lot.

Plaintiff applied for accidental disability retirement benefits as the result of the injuries sustained in 2011 and the 2000 incident that triggered her "limited duty" assignment. Her application for accidental disability retirement benefits was initially denied as the Retirement System's determined that neither the 2000 incident* nor the 2011 incident constituted an accident within the meaning of Retirement and Social Security Law §363.

Ultimately a Hearing Officer sustained the Retirement System's denial of Plaintiff's application for accidental disability retirement benefits, finding that the Retirement System had already determined that the 2000 incident did not constitute an accident and that Plaintiff was not in service at the time of the 2011 incident.

The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law whereupon Plaintiff initiated a CPLR Article 78 proceeding  challenging the Comptroller's determination.

Addressing the merits of Plaintiff's claim, the Appellate Division said:

The record indicated that a fellow officer in the precinct at the time volunteered to go to get the breakfast and asked Plaintiff to accompany him to help carry the large order. With the permission of her supervisor Plaintiff and the other officer went for the breakfast order and Plaintiff testified that she slipped on ice in the precinct parking lot while returning with the food for the precinct staff.

The Appellate Division said that, in its view, in going out to pick up a breakfast order for the precinct "at the behest of her supervisor, Plaintiff was performing a work duty rather than engaged in a personal activity at the time she suffered her 2011 injury." 

However, as the Comptroller did not reach the issue as to whether the 2011 incident constituted an accident within the meaning of Retirement and Social Security Law §363, the court remitted the matter for the Comptroller's consideration of that element of Plaintiff's claim.

* As Plaintiff's brief did not address Comptroller's finding with respect to the 2000 incident, the Appellate Division deemed that claim abandoned by the Plaintiff. 

Click HERE to access the Appellate Division's decision.

 

Administrative Law Judge recommended the employee's termination as the appropriate disciplinary penalty under the circumstances

New York City Office of Administrative Trials and Hearings Administrative Law Judge Kevin Casey recommended that a laboratory supervisor [Supervisor] at a New York City Hospital [Employer] be terminated from employment following a hearing on disciplinary charges filed against the Supervisor by the Employer.

Evidence in the disciplinary hearing record described more than 50 acts of misconduct spanning a 16-month period that the Employer alleged justified Supervisor being terminated from his employment at the facility.

The disciplinary charges and specification included allegations that the employee:

1. Repeatedly refusing to perform assigned tasks;

2. Falsified time-sheets;

3. Sent discourteous emails to[other] supervisors;

4. Was guilty of "excessive absence and lateness;"

5. Ignored orders;

6. Failed to attend scheduled meetings;

7. Changed shifts without approval; and

8. Had been absent without leave.

In recommending termination of Supervisor's employment, ALJ Casey noted that Supervisor had earlier been disciplined by the Employer and found guilty of charges alleging "similar misconduct."

Click HERE to access Judge Casey's decision. 

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