The effective date of a final administrative determination triggers the running of the statute of limitations to challenge the determination

A New York City police officer [Officer] retired from the New York City Police Department [Department] while serving "without firearms privileges." Officer subsequently filed a CPLR Article 78 petition seeking to annul the Department's issuing Officer a retirement identification card containing the words "no firearms." Supreme Court dismissed the proceeding and Officer appealed.

Unanimously affirming the Supreme Court's ruling, the Appellate Division said that the Department "reached a final and binding determination on May 31, 2018," the date on which Officer, then on modified duty status, retired from the Department and the date on which the Department issued Officer a retirement identification card bearing the words "no firearms." In addition, the Department declined to provide Officer with "a good guy letter" that was necessary for Officer to obtain a firearms license.*

The New York City Police Department License Division's "INSTRUCTIONS FOR NYPD RETIREES" states: "A retired law enforcement handgun license will not be issued to you if your [sic] did not receive a Pistol License Inquiry Response form (PD 643-155) a.k.a “good-guy letter, of [sic] if your ID card is stamped “No Firearms.” To obtain a retired law enforcement license, you must have the restriction lifted prior to receiving a license". 

Citing Matter of Baloy v Kelly, 92 AD3d 521, the Appellate Division opined that the possibility of Officer obtaining administrative relief was exhausted when Officer retired without a change in his modified status. Thus, the court concluded, the four-month statute of limitations began to run on May 31, 2018, and Officer's petition, filed in September 2019, was untimely.

Another impediment to Officer's right to challenge the administrative decision was that, as Supreme Court correctly determined, Officer's post-retirement letter "was merely a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations."

* The decision noted that the Department's policy of declining to issue a "good guy letter" in the event an officer retires without firearms privileges.

Click HERE to access the text of the Appellate Division's decision.

 

Municipality's motion for summary judgment based its claim of qualified immunity rejected by United States Circuit Court of Appeals, Second Circuit

In this appeal before the Second Circuit Court of Appeals, the Municipal Defendants [Defendants] ask the Appellate court to "exercise pendent jurisdiction" over the matter and reverse the district court’s denial of Defendant's motion for summary judgment on Plaintiff's state law claims of false arrest, malicious prosecution, intentional infliction of emotional distress, and indemnification, claiming that the Defendants were entitled to "qualified immunity."

The Circuit Court said that public officials performing discretionary functions are entitled to qualified immunity barring §1983 claims unless such officials “violated a statutory or constitutional right” and that right “was ‘clearly established’ at the time of the challenged conduct, citing Ricciuti v. Gyzenis, 834 F.3d 162.

The Circuit Court said it had jurisdiction to review an "interlocutory order denying qualified immunity so long as defendants pursue the appeal ‘on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.’” In contrast, the Circuit Court said it did not have jurisdiction to review a denial of qualified immunity to the extent it was based on a district court’s finding that there is enough evidence in the record to create a genuine issue as to factual questions that are material to the resolution of the Defendants' qualified immunity claim.

In this instance the Circuit Court held that it lacked jurisdiction to consider the federal law claims at issue here because the Defendant police officers’ qualified immunity defense turns on disputed fact and the Defendants have not shown that they would be entitled to qualified immunity as a matter of law under Plaintiff’s version of the facts.

Rejecting  Defendants' argument that the Defendant's police officers were entitled to qualified immunity on Plaintiff's false arrest claim and her equal protection claim, the court said that the resolution of these claims turn on the sufficiency of such claims to create an issue for the jury, "a contention that ... cannot[be] entertain on interlocutory review."

The Circuit Court of Appeals then explained that having concluded that it lacked jurisdiction to consider the question of qualified immunity as to Plaintiff's federal law claims, it also lack any basis to exercise pendent jurisdiction over Plaintiff's state law claims.

Click HERE to access the text of the Second Circuit Court of Appeals' decision.

Free webinar on Payroll Reconciliation offered by the Internal Revenue Service

The IRS invites NYPPL readers to click registerto sign up for a free webinar on Payroll Reconciliation hosted by the Office of Federal, State and Local Governments on October 14, 2021 at 2:00 PM (ET).

This webinar will cover when your payroll should be reconciled and what payroll amounts to use. It will also explain reconciling gross payroll to taxable income for federal income tax and FICA.

 

Claimant found ineligible for unemployment insurance benefits because she had resigned from her position without good cause

In this appeal the Appellate Division addressed a decision by the Unemployment Insurance Appeal Board that rejected of a claim for unemployment insurance benefits filed by a probationary teacher [Claimant].

Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. In her application for unemployment insurance benefits Claimant said that she had resigned from her position for safety reasons because she had been caught in the middle of an incident involving two students in which she had been "jostled around" in mid-December 2019.

The Appellate Division's decision reports that Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. Claimant subsequently applied for unemployment insurance benefits, but the Department of Labor held that Claimant was disqualified from receiving benefits because she had voluntarily separated from her employment without good cause.

Claimant requested a hearing in the course of which she testified that she resigned for safety reasons in response to a "verbal fight between students in mid-December 2019 and the general misbehavior of students" and that security had responded to the incident and that she had filed an incident report with school administrators. In contrast to Claimant's testimony, the principal and one of the assistant principals testified that they never received an incident report nor was any other administrator or security personnel ever informed of a December 2019 incident involving a physical confrontation between students and a teacher, "which would have triggered certain protocols and student suspensions."*

The Administrative Law Judge [ALJ] sustained the Department of Labor's determination, discrediting Claimant's testimony that she feared for her safety and filed an incident report, ruled that Claimant did not have good cause for resigning from her position. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ's decision and Claimant appealed the Board's ruling.

The Appellate Division, finding that substantial evidence supported the Board's decision that Claimant had "voluntarily separated from her employment without good cause," dismissed Claimant's appeal. The court, citing Matter of Vargas [Mason ESC LLC-Commissioner of Labor, 185 AD3d 1339, explained "Whether a claimant has voluntarily left his or her employment without good cause is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence."

Considering the conflicting testimony and the fact that Claimant waited six weeks after the December 2019 incident to resign, the Appellate Division opined that the question as to whether Claimant genuinely feared for her safety, officially reported the incident or sought assistance to address problems in her classroom "presented a credibility issue that the Board was free to resolve in the employer's favor." In the words of the court, it found "no basis upon which to disturb the Board's finding that [Claimant] voluntarily left her employment without good cause while continuing work was available, and she was therefore not entitled to unemployment insurance benefits."**

* The Appellate Division's decision indicates although Claimant continued to work in her position until the end of January 2020, she did not attempt to discuss the incident with the school principal or assistant principals, nor did she file a grievance with her union.

** The court also held that the Board's determination that Claimant received benefits to which she was not entitled, thereby allowing for recoverable overpayments, was also supported by substantial evidence.

Click HERE to access the Appellate Division's decision.

An injury resulting from the failure to follow proper safety protocols held "sudden, unexpected and not a risk inherent the duties of the position"

A member of the New York State Employees' Retirement System applying for accidental disability retirement benefits has the burden of establishing that the injury he sustained during the incident giving rise to the disability in question was the result of an accident within the meaning of the Retirement and Social Security Law.

Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division, in the instant appeal challenging the denial of a firefighter's application for accidental disability retirement benefits, said that the Court of Appeals has defined an accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact."

As the court held in Matter of Kelly v DiNapoli, 30 NY3d 674, "an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed, but the focus of the determination must be on the precipitating cause of [the] injury, rather than on the petitioner's job assignment."

In this appeal the Appellate Division considered a number of incidents suffered by a firefighter [Petitioner] at various time in the course of his performing firefighting duties cited his application for accidental disability retirement benefits.

Petitioner's application was initially denied, which decision was upheld by a Hearing Officer, who concluded that none of the incidents described by Petitioner constituted an accident within the meaning of the Retirement and Social Security Law. The Comptroller adopted the Hearing Officer's decision, and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller's ruling with respect to all but one incident ... an incident in which Petitioner "was struck by the master stream of water while fighting a fire inside an automotive garage."

Petitioner testified that the master stream of water that struck him and resulted in his disability:

a. was then being pumped at an average rate of 1,500 gallons per minute;

b. it was against standard operating procedure to spray a master stream of water into a burning structure while firefighters were inside because the force could be lethal; and

c. he had no warning that the master stream of water was being utilized to fight the fire until he "actually saw it a split second before getting hit."

The Appellate Division, noting that there "is no record support for the Hearing Officer's finding that [Petitioner] knew in advance that a master stream was being operated ... such that he could have left the building," concluded that "[u]nder these circumstances, the event that precipitated [Petitioner's] injuries was sudden, unexpected and not a risk inherent in [Petitioner's] regular duties as the incident would not have occurred if proper safety protocols had been followed."

Accordingly, the court opined that this event constituted an accident within the meaning of the Retirement and Social Security Law, thus entitling Petitioner to accidental disability retirement benefits and ruled  "that part of the [Comptroller's] determination finding otherwise must be annulled" and the matter remitted to Comptroller "for further proceedings not inconsistent with this Court's decision".

Click HERE to access the text of the Appellate Division's decision.