Administrative disciplinary proceedings via electronic means proposed by the NYS Liquor Authority

In an effort to modernize "outdated administrative disciplinary procedures" the New York State Liquor Authority has proposed amending 9 NYCRR §§54.1, 54.2, 54.3, 54.6 and 80.6 to provide for the service of pleadings via electronic means [see New York State Register I.D. No. LQR-36-21-00002-P] pursuant to Alcoholic Beverage Control Law §119, subdivisions (2) and (3) and §§201 and 203 of the State Administrative Procedure Act. 

Text of the proposed rule and any required statements and analyses may be obtained from Paul Karamanol, Esq., Senior Attorney, State Liquor Authority, 80 South Swan St., Suite 900, Albany, NY 12210, (518) 486-6743.

Data, views or arguments may be submitted Mr. Karamanol and public comment will be received until five days after the last scheduled public hearing.

Matters of public concern alleged to be defamatory uttered by a public official are entitled to a qualified privilege of immunity from liability if they involve the discharge of a public duty

In deciding this action brought by an individual [Plaintiff] alleging he had been defamed by a public officer, the Appellate Division observed that the elements of a cause of action to recover damages for defamation are the making of [1] a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace; [2] published without privilege or authorization to a third party; [3]  amounting to fault as judged by, at a minimum, a negligence standard; and [4] either causing special harm or constituting "defamation per se".*

However, as the Court of Appeals said in Stega v New York Downtown Hosp., 31 NY3d 661, an allegedly defamatory "statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned." Further, a plaintiff may defeat the claimed qualified privilege by showing either common-law malice - "spite or ill will", or may show actual malice, - "knowledge of the falsehood of the statement or a reckless disregard for the truth."

The Plaintiff in this action sought to recover damages for alleged defamatory statements about the Plaintiff by a county executive officer [Respondent] to the media and in a written press release, which Plaintiff claimed, among other things, had injured Plaintiff's reputation.

Respondent moved for summary judgment dismissing the complaint contending that the allegedly defamatory statements were subject to a qualified privilege. Supreme Court agreed and granted Respondent's. Plaintiff appealed but the Appellate Division sustained the lower court's ruling.

The court explained that Respondent had established that his statements "constitute a matter of public concern and are thus entitled to a qualified privilege of immunity from liability" and that Plaintiff "failed to raise a triable issue that the statements were motivated by either common-law or actual malice."

Accordingly, said the Appellate Division, "Supreme Court properly granted the [Respondent's] motion for summary judgment dismissing the complaint."

* The defamation per sein New York are statements which: charge the plaintiff with a serious crime; state false facts that tend to injure the plaintiff in his or her business trade or profession; allege that the plaintiff has a loathsome disease; or impute that the plaintiff is unchaste.

Click HERE to access the Appellate Division decision.

 

An injury suffered by a firefighter that was incurred in the course of a training exercise held a risk inherent in the performance firefighter duties

The basic rule in resolving the denial of an application for accidental disability retirement is that [1] the applicant has the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law and [2] the retirement systems denial of such benefits will be sustained if supported by substantial evidence.

Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division observed that "[f]or purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "an injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

As the injured firefighter bringing this action [Petitioner] was granted performance of duty disability retirement benefits, the Appellate Division opined that the sole issue "to be resolved at the administrative hearing" that resulted in the denial of Petitioner's application for accidental disability retirement benefits was whether incident underlying Petitioner's application constituted an accident.

Petitioner testified that, on the day in question, he and two other firefighters were engaged in a routine training exercise involving the simulated rescue of an injured firefighter. Petitioner, with the assistance of his fellow firefighter, began to lift the victim from the floor and as he did so, "the other firefighter apparently lost his grip, causing [Petitioner] to 'jerk forward' under the weight of the victim and his gear (approximately 285 pounds), which, in turn, caused injury to [Petitioner's" back."

There was no dispute that Petitioner was injured during a training exercise that, in turn, simulated a task that was part and parcel of his routine employment duties. The Appellate Division opined that while Petitioner asserted that the precipitating event, i.e., his fellow firefighter losing his grip on the victim, was unforeseeable, the fact "[t]hat a fellow employee might for some reason be unable to fully hold up his [or her] side of the load is by no means unexpected. It is, rather, an integral risk of lifting and carrying heavy objects" or, in this case, another firefighter.

Under the circumstances, the court concluded that substantial evidence supports "the [Retirement System's] finding that Petitioner was injured during the course of a routine training exercise and as the result of the ordinary risks arising therefrom," and confirmed the Retirement System's determination.

Click HERE to access the Appellate Division's decision.

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

New York State's Mass Vaccination Sites are now open to eligible for walk-in vaccination on a first-come, first-serve basis

 All New York State mass vaccination sites are now open to eligible New Yorkers for walk-in vaccination on a first-come, first-serve basis. People who would prefer to schedule an appointment at a state-run mass vaccination site can do so on the Am I Eligible App or by calling 1-833-NYS-4-VAX. People may also contact their local health department, pharmacy, doctor or hospital to schedule appointments where vaccines are available, or visit vaccines.gov to find information on vaccine appointments near them.

On September 2, 2021, 33,410 New Yorkers received their first vaccine dose, and 28,127 completed their vaccine series.

The COVID-19 Vaccine Tracker Dashboard is available to update New Yorkers on the distribution of the COVID-19 vaccine. 

The New York State Department of Health requires vaccinating facilities to report all COVID-19 vaccine administration data within 24 hours; the vaccine administration data on the dashboard is updated daily to reflect the most up-to-date metrics in the state's vaccination effort. New York State Department of Health-reported data from NYSIIS and CIR differs slightly from federally-reported data, which is inclusive of federally-administered doses and other minor differences.

Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

A school secretary [Plaintiff] formerly employed by the New York City Department of Education [DOE] told her union she had  been subjected to alleged harassment by her DOE supervisors. The union informed Plaintiff that it would not file a "special complaint" with DOE on her behalf. Plaintiff then filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the union had violated of its duty of fair representation within the meaning of Civil Service Law §209-a by failing to file the "special complaint" with DOE.

A PERB administrative law judge held a hearing and subsequently dismissed Plaintiff's improper practice charge. Plaintiff next initiated a CPLR Article 78 action naming DOE and PERB as respondents. Supreme Court granted the Respondents' separate motions to dismiss Plaintiff's petition "for failure to exhaust her administrative remedies", and dismissed Plaintiff's Article 78 petition. Plaintiff appealed the Supreme Court's rulings.

Generally, a party who objects to the determination of an administrative agency is required to exhaust all available administrative remedies before seeking judicial review. As was noted by the Appellate Division in Amorosano-LePore v Grant, 56 AD3d 663, "... there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies." The Amorosano-LePore court then opined that Amorosano-LePore failed to prove that efforts to exhaust her administrative remedies would have been "an exercise in futility."

In Plaintiff's case the Appellate Division said that administrative review of the ALJ's decision dismissing the charge of improper practice by PERB was available.*  Citing Jardim v New York StatePub. Empl. Relations Bd., 265 AD2d 329, the Appellate Division sustained the Supreme Court's rulings, explaining that Plaintiff, having failed to seek a review of the ALJ's decision by PERB, had failed to exhaust her administrative remedies.

The Appellate Division held that the Supreme Court had properly granted the  separate motions submitted by DOE and PERB to dismiss Plaintiff's petition insofar as asserted against each of them for failure to exhaust her administrative remedy by failing to appeal the ALJ's ruling to PERB and dismissed Plaintiff's appeal "with one bill of costs."

* See 4 NYCRR 213.2, 213.10.

Click HEREto access the Appellate Division's decision in instant case.