As the employee bears the burden of proving the existence of a reasonable accommodation permitting the employee to perform the essential functions of the position, the employer engaging in an "interactive process" is not an issue where the evidence demonstrates that no reasonable accommodation is possible

Gibbons v State of New York

2022 NY Slip Op 04153

Decided on June 29, 2022

Appellate Division, Second 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 on June 29, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
LINDA CHRISTOPHER
LARA J. GENOVESI
DEBORAH A. DOWLING, JJ.

2019-09593
(Index No. 601894/15)

[*1]Michael Gibbons, appellant,

v

State of New York, et al., respondents.

Daniel M. Bauso, Jamaica, NY, for appellant.

Letitia James, Attorney General, New York, NY (Steven C. Wu and Amit R. Vora of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for discrimination in employment on the basis of disability in violation of the New York State Human Rights Law, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Martha L. Luft, J.), entered May 24, 2019. The judgment, upon a jury verdict, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff began working for the defendant New York State Unified Court System Office of Court Administration (hereinafter OCA) as a court officer on April 16, 2001, and initially was assigned to Queens County Family Court. At the time, the plaintiff had already been diagnosed with Crohn's disease and primary sclerosing cholangitis, a related liver condition. In October 2009, the plaintiff was charged with pointing his gun at another officer, pursuant to which he entered into a stipulation providing that a formal letter of reprimand indicating he engaged in this conduct was to be placed in his file. He was subsequently transferred to Kings County Family Court.

The plaintiff's medical condition allegedly worsened following the incident, and in July 2012, the plaintiff moved his residence from Queens County to Suffolk County, which lengthened his commute. The plaintiff claimed he made several requests to his supervisors, which they deny receiving, as well as to the OCA, to be transferred to a court closer to where he lived to shorten his commute, but was never transferred. Eventually, the plaintiff's condition worsened to the point that he could no longer perform his job. The plaintiff applied for sick leave bank benefits on September 24, 2014, which were granted based on his obtaining disability retirement and social security disability.

In February 2015, the plaintiff commenced this action against the defendants to recover damages for discrimination on the basis of disability in employment in violation of the New York State Human Rights Law (Executive Law § 290 et seq.) (hereinafter the State HRL). The action proceeded to a jury trial. Following the trial, the jury returned a verdict finding that the plaintiff demonstrated that he had a disability and that he requested an accommodation to move to another court, but that his accommodation request was not reasonable. Judgment was entered upon [*2]the verdict, and the plaintiff appeals.

The plaintiff contends that the Supreme Court erred in failing to give the jury additional instructions concerning the defendants' obligation to engage in a good faith interactive process to determine whether a reasonable accommodation could be provided. Contrary to the plaintiff's contention, the court properly charged the jury on the essential elements of a claim of discrimination based on disability under the State HRL (see Executive Law § 296[3][a]). A good faith interactive process is not an independent element of the disability discrimination analysis under the State HRL, and an employer may not be held liable based solely on its failure to engage in an interactive process with an employee (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 838; Hayes v Estee Lauder Cos., Inc., 34 AD3d 735, 737). "At a trial on a State HRL claim, the plaintiff employee still bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 838). Here, whether the defendants engaged in an interactive process was not an issue, as the evidence demonstrated that no reasonable accommodation was possible (see generally Whitney v Bronx-Lebanon Hosp. Ctr., 150 AD3d 587, 588; Pimentel v Citibank, N.A., 29 AD3d 141, 147-148; McBride v BIC Consumer Products Mfg. Co., Inc., 583 F3d 92, 100 [2d Cir]; Soto-Ocasio v Federal Exp. Corp., 150 F3d 14, 19 [1st Cir]). Based on the record, the jury fairly determined that the OCA could not have reasonably accommodated the plaintiff's request for a transfer.

Since the charge given by the Supreme Court adequately conveyed the "sum and substance of the applicable law," there is no basis for reversal (Hayes v Estee Lauder Cos., Inc., 34 AD3d at 737 [internal quotation marks omitted]).

CONNOLLY, J.P., CHRISTOPHER, GENOVESI and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

Where a clear explanation of proposed rules and its requirements are provided by the adopting public entity, the entity's provided a full rationale for adopting the rule is not required at the time of its promulgation if the record reveals that the rule had a rational basis

Matter of Lynch v New York City Civilian Complaint Review Bd.

2022 NY Slip Op 04122

Decided on June 28, 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 28, 2022
Before: Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ.

Index No. 154653/21 Appeal No. 16202 & M-02131 Case No. 2021-04687

[*1]In the Matter of Patrick J. Lynch etc., et al., Petitioners-Appellants,

v

New York City Civilian Complaint Review Board et al., Respondents-Respondents. The New York Civil Liberties Union Foundation and The American Civil Liberties Union, Women's Rights Project, Amici Curiae.

Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Matthew C. Daly of counsel), for appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Kevin Osowski of counsel), for respondents.

Guadalupe Victoria Aguirre and Christopher Dunn, New York, for the New York Civil Liberties Union Foundation, amicus curiae.

Sandra S. Park, New York, for the American Civil Liberties Union, Women's Rights Project, amicus curiae.

 

Judgment, Supreme Court, New York County (Laurence Love, J.), entered on or about November 9, 2021, to the extent appealed from as limited by the briefs, denying the petition brought pursuant to CPLR article 78 to the extent it sought declarations that changes to the rules of the Civilian Complaint Review Board (CCRB), approved by vote on February 10, 2021, were void under Public Officers Law § 107, that the CCRB's Statement of Basis and Purpose for the rules was defective, and that the CCRB's definition of "abuse of authority" was invalid; and to the extent it sought an award of costs and attorneys' fees under Public Officers Law § 107(2), unanimously affirmed, without costs.

In a prior proceeding, this Court determined that a resolution from the CCRB, announcing that it would begin investigating allegations of sexual misconduct by civilians against police officers, was a nullity because the CCRB did not follow the public vetting processes required by the City Administrative Procedure Act (CAPA) for adopting new rules (Matter of Lynch v New York City Civilian Complaint Review Bd., 183 AD3d 512, 518 [1st Dept 2020], lv denied 36 NY3d 901 [2020]).

Following 0ur order, the Chair of the CCRB issued a statement that the CCRB was "committed to pursuing the rulemaking process expeditiously" so that an independent entity could review NYPD sexual misconduct. The CCRB's General Counsel drafted a set of proposed revisions to the CCRB's rules and a statement of purpose, which he shared with the members of the CCRB. On July 1, 2020, the General Counsel advised the CCRB's members on the process for revising the CCRB's rules after our decision. The CCRB's members voted to authorize the rulemaking process but did not discuss the substance of the revised rules.

On December 1, 2020, the CCRB issued a notice of public hearing and opportunity to comment. Among the proposed changes to the CCRB's rules was a definition of "abuse of authority." This term was defined as "misusing police powers," including certain specified conduct (see Rules of City of NY Civilian Complaint Review Bd [38-A RCNY] § 1-01). As relevant here, the specified conduct included "intentionally untruthful testimony and written statements made against members of the public in the performance of official police functions, and sexual misconduct." Sexual misconduct was further defined elsewhere in the revised rules (see id.).

The CCRB held a public hearing (by videoconference) on January 13, 2021. After responding to all questions and comments, the CCRB members voted to enter executive session. The only planned discussion of the rulemaking, which lasted less than 10 minutes, was the General Counsel's legal advice. Comments about the substance of the revised rules were not invited. Although a few brief comments were made, these did not address particular comments or text of the rules or propose any changes. One CCRB member expressed some concern about the revised rules but declined to specify the [*2]nature of that concern during an executive session.

The CCRB did not discuss the proposed rules in any other executive session. On February 10, 2021, the CCRB publicly voted to approve the revised rules in their entirety. On February 24, 2021, the CCRB issued a notice of adoption. The statement of basis and purpose summarized the revised rules and indicated that they would "incorporate the Charter changes, comply with the court ruling, modify the Board meeting schedule, and clarify certain language to make the rules more understandable."

Supreme Court properly denied petitioners' request for a declaration that the CCRB's enactment of the revised rules was invalid based upon an allegedly defective statement of basis and purpose. While the statement of basis and purpose for the revised rules was succinct, it satisfied the requirements set forth in New York City Charter § 1043(d)(1)(iv) by stating the purpose of the rules, and by providing a clear explanation of those rules and the requirements they would impose. New York City Charter § 1043(d)(1)(iv) does not require that the agency fully explain its rationale for adopting a rule, nor is there any requirement that the agency articulate its rationale at the time of promulgation as long as the record reveals that the rule had a rational basis (see Matter of Tri-City, LLC v New York City Taxi & Limousine Commn., 189 AD3d 652, 652-653 [1st Dept 2020]).

As to the content of the revisions, petitioners have "failed to meet their heavy burden" of showing the revised rules to be "so lacking in reason that [they were] essentially arbitrary" (id. at 652). Given the CCRB's expertise in studying and investigating police disciplinary matters, we defer to its interpretation of the term "abuse of authority," unless that definition is irrational, unreasonable, or inconsistent with the governing statute (see Matter of Toys "R" Us v Silva, 89 NY2d 411, 418-419 [1996]). The CCRB's interpretation of that term—defining "abuse of authority" as "misusing police power," which encompasses both sexual misconduct by officers against civilians and the making of false statements against civilians—is consistent with the plain language of the governing statute (see New York City Charter § 440[c][1]). Moreover, the record before the CCRB provided ample basis to conclude that sexual misconduct against civilians and making false statements against civilians both fall within the meaning of the term "abuse of authority."

Contrary to petitioners' contention, the governing statute does not prohibit the CCRB from investigating matters that may touch upon criminal conduct (seeNew York City Charter § 440[f]). While the CCRB had a prior practice of referring such matters to the Police Department's Internal Affairs Bureau, that prior practice does not render the CCRB's current interpretation arbitrary, especially where the CCRB has set forth a rational basis for changing its approach (see Matter of Juarez v New York State Off. of Victim [*3]Servs., 36 NY3d 485,496 [2021]; Matter of Mount Bldrs., LLC v Perlmutter, 200 AD3d 616, 616 [1st Dept 2021] lv denied 38 NY3d 906 [2022]; Matter of Punnett v Evans, 26 AD2d 396, 398 [1st Dept 1966]).

Although petitioners established that the CCRB violated the Open Meetings Law (see Public Officers Law § 103), courts are vested with discretion to grant remedial relief, and not every violation of the Open Meetings Law requires sanctions (see Public Officers Law § 107; Matter of New York Univ.v Whalen, 46 NY2d 734, 735 [1978]). Here, the court providently exercised its discretion in denying remedial relief.

The Open Meetings Law prohibits public bodies from conducting business in executive session, outside of public view (see Public Officers Law § 103; Matter of Lancaster v Incorporated Vil. of Freeport, 22 NY3d 30, 40 [2013]). Its purpose is to prevent governments from deciding, in private, matters which should be subject to debate and decided in public (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 686 [1996]; Public Officers Law § 100). If a court finds that an agency violated the Open Meetings Law, it may, "in its discretion, [and] upon good cause shown," void the agency's action (Public Officers Law § 107[1]). Courts also have the discretion to award costs and attorney's fees (id. at [2]). A showing of "good cause" generally requires intentional wrongdoing or, at least, a showing that petitioners were aggrieved or prejudiced by the violation (see Matter of Fichera v New York State Dept. of Envtl. Conservation, 159 AD3d 1493, 1498 [4th Dept 2018]; Matter of Chenkin v New York City Council, 72 AD3d 548, 549 [1st Dept 2010], lv denied 16 NY3d 703 [2011]; Matter of Specht v Town of Cornwall, 13 AD3d 380, 381 [2d Dept 2004]).

 

Petitioners have not demonstrated that the CCRB intentionally excluded them from its meetings (see Fichera, 159 AD3d at 1498; Chenkin, 72 AD3d at 549). Neither have petitioners demonstrated that they were aggrieved or prejudiced by the CCRB's executive sessions, at which it did not discuss the substance of the revised rules (see Fichera, 159 AD3d at 1498; Specht, 13 AD3d at 381). Therefore, petitioners have not established good cause to void the CCRB's actions (see Whalen, 46 NY2d at 735).

We have considered petitioners' remaining arguments and find them unavailing.

M-02131 — Matter of Lynch v New York City

Civilian Complaint Review Bd.

Motion by The American Civil Liberties Union, Women's Rights Project, and the New York Civil Liberties Union Foundation, to file an amicus curiae brief, granted.

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

ENTERED: June 28, 2022

 

U.S.Supreme Court limits the authority of the EPA to regulate greenhouse-gas emissions that cause climate change

In its ruling in West Virginia v. Environmental Protection Agency, the United States Supreme Court limited the authority of the EPA to regulate greenhouse-gas emissions that cause climate change. 

Peter Iwanowicz, Executive Director of Environmental Advocates NY, issued the following statement in response to the Court's decision.

“Six Justices on the Supreme Court just decided that the federal government must unilaterally disarm in its fight against climate change—capping off a series of rulings that will significantly harm Americans now and into the future. Make no mistake, today’s decision is a gift to polluters that will make people sick, some of whom will die prematurely. Fortunately, the ruling does nothing to affect our state’s climate law or efforts. New York must respond to this ruling swiftly and with bold climate leadership.”

Audits and reports issued by the New York State Comptroller during the week ending June 23, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending June 23, 2022:

Click on the text highlighted in colorto access the complete audit report.

School District Audits

Brookhaven-Comsewogue Union Free School District – Extra-Classroom Activity (ECA) Funds (2021M-181)  

Unapproved ECA clubs were operating in the district and officials did not establish an adequate accounting system for the district’s funds. As a result, district officials cannot ensure that collections are properly collected, submitted, and deposited, and disbursements are for valid purposes. As a result, 72 of 90 transactions tested totaling $321,554 were not properly accounted for. Officials did not ensure collections and disbursements were always supported or that nine of the 38 deposits tested totaling $12,635 were deposited timely.

East Moriches Union Free School District – Financial Condition Management (2022M-1)  

District officials overestimated appropriations, which made it appear that the district needed to increase taxes and use appropriated fund balance to close projected budget gaps, but the appropriated fund balance was not used to finance operations. The surplus fund balance has continuously grown over the past five fiscal years. As of June 30, 2021, it was over $7.1 million, or 24.3% of the next year’s budget, exceeding the 4% statutory limit. The district’s budgeted appropriations from 2016-17 through 2020-21 exceeded actual expenditures by $6.3 million, or 4.5%. Officials did not use the retirement contribution reserve to pay annual retirement contributions. Its excessive balance is enough to cover annual retirement contributions for nine years.

 

Franklin Central School District – Information Technology (2022M-19)  

District officials did not adequately manage network user accounts, periodically compare installed software to an authorized software inventory or develop an IT contingency plan. Nine of the district’s network user accounts (8%) were not needed. This created additional network entry points that, if accessed by attackers, could be used to inappropriately access, and view sensitive information and compromise IT resources. District staff did not have sufficient documented guidance or plans to follow to recover data and resume essential operations in a timely manner.

Port Chester-Rye Union Free School District – Information Technology User Accounts (2021M-209)  

District officials did not adequately manage non-student network user accounts to ensure unnecessary accounts were disabled. Specifically, district officials did not establish comprehensive written procedures to periodically review all network user accounts, identify unnecessary network user accounts, and notify the IT vendor to disable them. Nine former employees’ user accounts and 120 unneeded generic user accounts were not disabled on the network.

 

Valhalla Union Free School District – Network User Accounts (2022M-26)  

District officials did not adequately manage the district’s network user accounts to help prevent unauthorized use, access and/or loss. Auditors found district officials should have disabled 67 unneeded network user accounts. These unnecessary accounts had last log-on dates ranging from Jan. 3, 2012, to Sept. 3, 2021, and account for 15% of the district’s network user accounts.

 

 Municipal Audits

Town of Charlton – Procurement (2022M-5)  

Town officials did not always seek competition when procuring goods and services. Town officials made 17 purchases totaling $67,808 without seeking competition and spent $4,820 on snowplow blades and shoes but could have saved town taxpayers $2,244, if purchased off the state contract. The town also did not always retain copies of other government contracts used to procure goods and services.

 

Village of Hagaman – Claims Auditing (2022M-11)  

Claims were not properly audited and approved before payment. The board did not date their signatures on claims upon review and approval or ensure claims had department head approval.

 

Village of Hewlett Bay Park – Financial Management (2022M-30)  

The board did not adopt realistic budgets, or monitor and effectively manage fund balance. As a result, more taxes were levied than needed to fund operations. For example, about $6,000 was needed to balance the budget in 2020-21; however, the property tax levy was $209,000. For the four fiscal years reviewed, the board maintained an excessive level of unassigned surplus fund balance in the general fund and balances ranged between $273,348 and $348,648 or between 45% and 61% of the ensuing year’s budget. The village also underestimated revenues by a total of $420,341 and overestimated expenditures by a total of $608,117 and budgeted for a large operating deficit each year, ranging between $260,003 and $293,105. However, the actual deficits for that period ranged between $5,547 and $42,216. This practice contributed to the continued accumulation of surplus fund balance.

 

Schoharie County Court and Trust (2022-C&T-3)  

Auditors found the treasurer established adequate procedures, maintained appropriate records, and properly reported court and trust funds as prescribed by statute. Records maintained by the county clerk and Surrogate’s Court were also up to date and complete with no material discrepancies.

Selected decisions and reports posted on the Internet during the week ending June 24, 2022