The Civil Service Law §58(1)(a) age requirements for appointment as a provisional or permanent police officer are within the law enforcement exception of the ADEA

 

Kelly v State of New York

2022 NY Slip Op 03952

Decided on June 16, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 16, 2022

529638

[*1]James F. Kelly, Appellant,

v

State of New York, Respondent.

Calendar Date:April 25, 2022
Before:Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

James F. Kelly, Hyde Park, appellant pro se.

Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from an order of the Court of Claims (McCarthy, J.), entered June 3, 2019, which granted defendant's motion to dismiss the claim.

Claimant, born in 1964, is a part-time police officer. In 2016, seeking to become a full-time officer, claimant applied to take the relevant open competitive civil service exam sponsored by Ulster County. In November 2016, claimant was informed that he was ineligible to sit for the examination, as he exceeded the age limitation imposed by Civil Service Law § 58. Claimant administratively appealed, and the decision was upheld on review by the County.

Claimant then commenced this action in the Court of Claims, setting forth a general disparate treatment claim and alleging specific violations of the following: the Fourteenth Amendment of the US Constitution; the federal Age Discrimination in Employment Act of 1967 (29 USC chapter 14 [hereinafter ADEA]); NY Constitution, article I, § 11 and article V, § 7; Human Rights Law §§ 291 and 296; and Civil Service Law § 54. Defendant moved pre-answer to dismiss the claim due to lack of subject matter jurisdiction and failure to state a cause of action, and the court granted dismissal. Claimant appeals.^[FN1]

Claimant contends that, contrary to its conclusion, the Court of Claims had subject matter jurisdiction over his federal constitutional causes of action, under Court of Claims Act § 8 and 42 USC § 1983. We disagree. "[F]ederal constitutional claims may not be asserted in the Court of Claims, given that the statutory basis for such claims, 42 USC § 1983, authorizes claims only against a 'person' and defendant is not a person within the meaning of this statute" (Oppenheimer v State of New York, 152 AD3d 1006, 1008 [2017]; accord Moreland v State of New York, 200 AD3d 1362, 1365 [2021], lv denied 38 NY3d 906 [2022]; see Will v Michigan Dept. of State Police, 491 US 58, 64 [1989]). Thus, the Court of Claims correctly dismissed the claims alleging violations of the US Constitution for lack of subject matter jurisdiction.

Turning to the Court of Claims' dismissal of claimant's ADEA claim, claimant argues that defendant's enforcement of Civil Service Law § 58 violates the federal act. The ADEA protects workers over the age of 40 from discrimination in hiring due to the worker's age. Crucially, however, it contains an exception for law enforcement, which provides that states may lawfully refuse to hire, on the basis of age, "an individual as a . . . law enforcement officer . . . pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [29 USC chapter 14]" (29 USC § 623 [j] [2]). Pursuant to this exception, defendant "need not prove that age is a [bona fide occupational qualification] for its police officers" (Kopec v City of Elmhurst, 193 F3d 894, 902 [7th Cir 1999]; see Feldman v Nassau County, 434 F3d 177, 182 n 5 [2nd Cir 2006]). Civil Service Law § 58 (1) (a) states that "no person shall be eligible for provisional or [*2]permanent appointment in the competitive class of the civil service as a police officer . . . unless he or she shall satisfy" the requirement that "he or she is not less than [20] years of age as of the date of appointment nor more than [35] years of age as of the date when the applicant takes the written examination."

Claimant does not allege that defendant's age limitation hiring plan is a subterfuge to evade the purposes of the ADEA; rather, claimant contends that the exception does not apply here, where claimant worked as a part-time officer and attempted to transfer into full-time employment. However, courts have regularly interpreted alleged violations of the ADEA under similar circumstances, where a claimant seeks to reclassify from part-time to full-time employment, as failure to hire claims (see e.g. Kopec v City of Elmhurst, 193 F3d at 896, 904; Weiner v City College of City Univ. of New York, 1997 WL 381799, *1, *4, 1997 US Dist LEXIS 9705, *2, *13 [SD NY, July 9, 1997, No. 95 Civ 10892 (JFK)]).^[FN2]The instant claim does not require a different analysis. As claimant's contentions constitute a failure to hire claim, they are unavailing; Civil Service Law § 58 (1) (a) falls squarely within the law enforcement exception of the ADEA (see Feldman v Nassau County, 434 F3d at 184; Petrelli v City of Mount Vernon, 9 F3d 250, 253 [2nd Cir 1993]; Ruderman v Police Dept. of City of New York, 857 F Supp 326, 329 [SD NY 1994]). The Court of Claims therefore properly dismissed claimant's ADEA claim for failure to state a cause of action.

Claimant contends that the age requirement of Civil Service Law § 58 also violates Civil Service Law § 54 and that the Court of Claims erred in dismissing this claim. However, Civil Service Law § 54 contains the caveat that "[n]othing herein contained . . . shall prevent the adoption of reasonable minimum or maximum age requirements for open competitive examinations for positions where it is determined by the department and approved by the commission that such age requirements would be reasonable minimum qualification for such position"; thus, Civil Service Law § 54 does not prohibit the enforcement of § 58 (see Matter of Beloten v Diamond, 276 AD2d 438, 439 [2000]; Timerman v Bence, 176 AD2d 1220, 1221 [1991]). Accordingly, this claim must also be dismissed for failure to state a cause of action.

Claimant's remaining contentions have been considered and are without merit.

Garry, P.J., Aarons, Pritzker and Fisher, JJ., concur.

ORDERED that the order is affirmed, without costs.

Footnotes

Footnote 1: To the extent that claimant appeals the dismissal of his claims pursuant to NY Constitution, article V, § 7 and Human Rights Law § 296, he has not advanced any arguments relevant thereto on appeal; thus, these claims are deemed abandoned (see Prendergast v Swiencicky, 183 AD3d 945, 946 n 1 [2020], lv denied 36 NY3d 944 [2020]; Matter of Micklas v Town of Halfmoon Planning Bd., 170 AD3d 1483, 1485 [2019]).

Footnote 2: Claimant's challenge to an earlier denial of the opportunity to sit for the same exam, brought in federal court, was denied under the same analysis (Kelly v County of Ulster, 2018 WL 5811423, *4, 2018 US Dist LEXIS 189724, *9-*10 [ND NY, Nov. 6, 2018, 1:18-CV-00240 (BKS/DJS)]). His contention that defendant is not an employer, but a labor organization, was also rejected in that case (id.). We too reject that contention.

 

Links to decisions of the United States Supreme Court from December 21, 2021 through and including June 24, 2022

June

R-	Date	Docket	Name	Revised	J.	Pt.
59	6/24/22	20-1312	Becerra v. Empire Health Foundation, For Valley Hospital Medical Center		EK	597/1
58	6/24/22	19-1392	Dobbs v. Jackson Women’s Health Organization		A	597/1
57	6/23/22	21-248	Berger v. North Carolina State Conference of the NAACP		NG	597/1
56	6/23/22	21-439	Nance v. Ward		EK	597/1
55	6/23/22	21-499	Vega v. Tekoh		A	597/1
54	6/23/22	20-843	New York State Rifle & Pistol Assn., Inc. v. Bruen		T	597/1
53	6/21/22	20-1641	Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.		BK	596/2
52	6/21/22	20-1459	United States v. Taylor		NG	596/2
51	6/21/22	21-404	United States v. Washington		B	596/2
50	6/21/22	21-511	Shoop v. Twyford		R	596/2
49	6/21/22	20-1088	Carson v. Makin		R	596/2
48	6/15/22	20-1775	Arizona v. City and County of San Francisco		PC	596/2
47	6/15/22	21-234	George v. McDonough		AB	596/2
46	6/15/22	20-1114	American Hospital Assn. v. Becerra		BK	596/2
45	6/15/22	20-493	Ysleta del Sur Pueblo v. Texas		NG	596/2
44	6/15/22	20-1034	Golan v. Saada		SS	596/2
43	6/15/22	20-1573	Viking River Cruises, Inc. v. Moriana		A	596/2
42	6/13/22	21-401	ZF Automotive U. S., Inc. v. Luxshare, Ltd.		AB	596/2
41	6/13/22	20-7622	Denezpi v. United States		AB	596/2
40	6/13/22	19-896	Johnson v. Arteaga-Martinez		SS	596/2
39	6/13/22	20-322	Garland v. Gonzalez	6/17/22	A	596/2
38	6/13/22	21-5726	Kemp v. United States		T	596/2
37	6/08/22	21-147	Egbert v. Boule		T	596/1
36	6/06/22	21-441	Siegel v. Fitzgerald		SS	596/1
35	6/06/22	21-309	Southwest Airlines Co. v. Saxon		T	596/1
34	6/06/22	20-1263	Gallardo v. Marstiller	6/17/22	T	596/1

May

R-	Date	Docket	Name	Revised	J.	Pt.
33	5/23/22	21-328	Morgan v. Sundance, Inc.		EK	596/1
32	5/23/22	20-1009	Shinn v. Martinez Ramirez		T	596/1
31	5/16/22	20-979	Patel v. Garland		AB	596/1
30	5/16/22	21-12	Federal Election Comm’n v. Ted Cruz	5/16/22	R	596/1
29	5/02/22	20-1800	Shurtleff v. Boston		B	596/1

April

R-	Date	Docket	Name	Revised	J.	Pt.
28	4/28/22	20-807	LeDure v. Union Pacific Railroad Co.		PC	596/1
27	4/28/22	20-219	Cummings v. Premier Rehab Keller		R	596/1
26	4/21/22	20-1472	Boechler v. Commissioner		AB	596/1
25	4/21/22	20-303	United States v. Vaello Madero	4/28/22	BK	596/1
24	4/21/22	20-826	Brown v. Davenport		NG	596/1
23	4/21/22	20-1566	Cassirer v. Thyssen-Bornemisza Collection Foundation		EK	596/1
22	4/21/22	20-1029	City of Austin v. Reagan National Advertising of Austin, LLC		SS	596/1
21	4/04/22	20-659	Thompson v. Clark		BK	596/1

March

R-	Date	Docket	Name	Revised	J.	Pt.
20	3/31/22	20-1143	Badgerow v. Walters		EK	596/1
19	3/24/22	20-804	Houston Community College System v. Wilson		NG	595/2
18	3/24/22	21-5592	Ramirez v. Collier		R	595/2
17	3/23/22	21A471	Wisconsin Legislature v. Wisconsin Elections Commission		PC	595/2
16	3/07/22	20-5279	Wooden v. United States	3/08/22	EK	595/2
15	3/04/22	20-828	FBI v. Fazaga		A	595/2
14	3/04/22	20-443	United States v. Tsarnaev	3/04/22	T	595/2
13	3/03/22	20-601	Cameron v. EMW Women’s Surgical Center, P. S. C.	3/04/22	A	595/2
12	3/03/22	20-827	United States v. Zubaydah	3/07/22	B	595/2

February

R-	Date	Docket	Name	Revised	J.	Pt.
11	2/24/22	20-915	Unicolors, Inc. v. H&M Hennes & Mauritz, L. P.		B	595/2

January

R-	Date	Docket	Name	Revised	J.	Pt.
10	1/24/22	19-1401	Hughes v. Northwestern Univ.		SS	595/1
9	1/20/22	20-637	Hemphill v. New York	1/21/22	SS	595/1
8	1/13/22	21A244	NFIB v. OSHA		PC	595/1
7	1/13/22	21A240	Biden v. Missouri		PC	595/1
6	1/13/22	20-480	Babcock v. Kijakazi		AB	595/1

December

R-	Date	Docket	Name	Revised	J.	Pt.
5	12/10/21	21-588 (21A85)	United States v. Texas		PC	595/1
4	12/10/21	21-463	Whole Woman’s Health v. Jackson	12/10/21	NG	595/1

 

 

Selected decisions by New York Courts posted on the Internet during the week ending June 17, 2022

New York Botanical Garden sues its insurance company for its "business interruption losses" resulting from an order by a government body closing its facilities in response to COVID-19

New York Botanical Garden v Allied World Assur. Co. (U.S.) Inc.

2022 NY Slip Op 03871

Decided on June 14, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 14, 2022
Before: Webber, J.P., Gesmer, Oing, Singh, Kennedy, JJ.

Index No. 803872/21E Appeal No. 16127 Case No. 2021-04319

[*1]New York Botanical Garden, Plaintiff-Respondent,

v

Allied World Assurance Company (U.S.) Inc., Defendant-Appellant.

Clyde & Co US LLP, New York (Kevin M. Haas of counsel), for appellant.

Beveridge & Diamond P.C., New York (John H. Kazanjian of counsel), for respondent.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered October 22, 2021, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

Plaintiff is a non-profit organization which conducts research and education about plant science, and maintains a 250 acre botanical garden in the Bronx open to the public. Defendant Allied World Assurance Company (U.S.) Inc. (AWA) issued a Pollution Legal Liability policy to plaintiff. Under the policy, "contingent business interruption" is defined as "the necessary suspension of your business operations at a location owned or leased to you as a result of an order by a government body or authority denying access to the location . . . provided that" the suspension and the order must be "caused solely and directly by a pollution incident on, at or under an independent location." "Independent location" is defined as "a location that is not and was not at any time a location owned, leased, managed, operated or used by an insured."

Plaintiff sought coverage under the policy for "contingent business interruption" loss which it claimed resulted from governmental orders shutting down its operations in response to COVID-19. Defendant denied the claim in full, although it acknowledged that "COVID-19 constitutes a 'pollution incident' as defined in the Policy." Plaintiff then sued, seeking a declaration that AWA was required to pay its business interruption losses. It also asserted a breach of contract claim, premised on AWA's denial of coverage, and a cause of action for breach of implied covenant of good faith and fair dealing. The motion court denied defendant's motion to dismiss pursuant to CPLR 3211(a)(1) and (7).

Defendant failed to establish that, under the terms of the insurance policy it issued to plaintiff, contingent business interruption coverage was available only if plaintiff was completely denied access to its property. The policy contemplates coverage for periods when plaintiff would have some temporary access to the property, including periods involving potential partial resumption of operations to mitigate damages, which for plaintiff included maintaining its extensive plantings (see generally Matter of Viking Pump., Inc., 27 NY3d 244, 257 [2016]; Westchester Fire Ins. Co. v Schorsch, 186 AD3d 132, 140 [1st Dept 2020], appeal withdrawn 37 NY3d 990 [2021]). The cases relied upon by defendant, which involve civil authority coverage in property liability policies and periods of complete denial of access due to physical damage are inapposite (see e.g. 54th St. Ltd. Partners v Fidelity & Guar. Ins. Co., 306 AD2d 67, 67 [1st Dept 2003]). Defendant also failed to establish that the executive orders denying access were not solely and directly the result of a pollutant at an "independent location," within the meaning of that term of the policy.

The complaint states a cause of action for breach of the implied covenant of good faith [*2]and fair dealing by alleging that defendant did not conduct a complete or fair investigation of its claim, had no meritorious basis for denying the claim, and simply denied it in accordance with a business policy of denying COVID-related business interruption claims (see Bi-Economy Mkt., Inc. v Harleysville Co. of N.Y., 10 NY3d 187, 195 [2008]; East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d 881, 885 [2d Dept 2021]; Prospect St. Ventures I, LLC v Eclipsys Solutions Corp., 23 AD3d 213, 213 [1st Dept 2005]). The breach of the implied covenant claim is not duplicative of the breach of contract claim, since, although there is some overlap in the facts alleged, it relies upon different facts and seeks different damages from the contract claim (see Bi-Economy, 10 NY3d at 191-192; D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 168 AD3d 505, 507 [1st Dept 2019]; Bostany v Trump Org. LLC, 73 AD3d 479, 481 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 14, 2022