Applicant's claim for workers' compensation benefits based on his alleged participation in the "9-11 World Trade Center rescue, recovery or cleanup operations" denied

On September 11, 2001, petitioner [Claimant] was employed as a budget analyst for the New York City Office of Management and Budget [OMB]. In the weeks following the terrorist attacks, Claimant was assigned by OMB to work at offices in Queens and on Maiden Lane in Manhattan, before returning to his Park Place office in March 2002.

Claimant filed a "registration of his participation" in the World Trade Center [WTC] rescue, recovery and cleanup operations with the Workers' Compensation Board [Board] seeking workers' compensation benefits. The Board, among other things, ruled, that Claimant was not a participant in the WTC rescue, recovery and cleanup operations and his application for workers' compensation benefits was rejected. Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's determination noting:

1. Claimant testified that at the time of the WTC attacks he was providing budgetary analysis for the OMB's Parks and Landmarks Unit.

2. Claimant did not testify that he directly participated in the rescue, recovery and cleanup operations at the WTC site.

3. Claimant said that after the attack he was assigned to do "budgetary analysis for the rescue, recovery and cleanup" operations, although his general job duties remained the same."

4. Claimant did not provide any further testimony or other evidence as to what this analysis actually entailed or how the work was connected to the rescue, recovery and cleanup operations.

The Appellate Division opined the Board's factual finding that Claimant did not demonstrate that his job duties as a budget analyst had a direct or tangible connection to the rescue, recovery or cleanup operations at the WTC site is supported by substantial evidence and concluded that the Board did not abused its discretion in finding that Workers' Compensation Law Article 8-A "does not apply to this claim."

Click HERE to access the Appellate Division's decision posted on the Internet. 

 

Applicant for accidental disability retirement benefits must show the event resulting in the injury was not a risk inherent in the work being performed

A police officer [Officer] suffered a number of injuries when he fell while descending a staircase in his precinct. Officer's application for accidental disability retirement benefits was denied upon the ground that the incident did not constitute an accident within the meaning of §363 of the Retirement and Social Security Law.* Following a hearing and redetermination, the State Comptroller ultimately affirmed the hearing officer's decision. Officer commenced a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller's decision noting:

1. Officer bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's decision "will be upheld if supported by substantial evidence"'

2.  "An injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed".

3. A fall as a result of one's own misstep, without more, "is not so out-of-the-ordinary or unexpected as to constitute an accidental injury".

Although there was no dispute that Officer was engaged in the performance of his ordinary duties as a patrol officer at the time that he fell, he did not identify any defect in the stairs, which he used on a regular basis nor was he able to identify the substance or occurrence that "precipitated his fall." Officer's application for disability benefits under General Municipal Law §207-c "indicated that he simply 'lost [his] foot[ing]' on the stairs, while Officer's application for accidental disability retirement benefits indicated that he fell after he "stepped on a[n] unseen substance."

The Appellate Division said "Credibility determinations, as well as the resolution of any inconsistencies between the hearing testimony and documentary evidence, are matters for the Hearing Officer and [the Comptroller] to resolve". Given the inconsistencies in Officer's description of his fall, as well as his inability to identify a precipitating accidental event that was not a risk inherent in the work that he performed, the Appellate Division opined "the Hearing Officer rationally concluded that petitioner failed to prove that his fall was the result of anything other than a misstep."

Confirming the Comptroller's decision, the Appellate Division observed "... a fall occasioned by a misstep does not constitute an accident" and substantial evidence supports the Comptroller's denial of Officer's application for accidental disability retirement benefits.

* Officer did, however, receive performance of duty disability retirement benefits when he subsequently retired

Click HERE to access the Appellate Division's decision posted on the Internet.

Challenging an arbitration award based on allegations that award failed to meet the standards of finality and definiteness

Arguing that an arbitration should be vacated because it failed to meet the standards of finality and definiteness required by CPLR Article 75, the Niagara Falls Captains and Lieutenants Association, [Association] appealed Supreme Court's order denying its petition seeking to vacate an arbitration award. The Appellate Division rejected the Association's contention and affirmed the order.

Noting that it is well settled that "judicial review of arbitration awards is extremely limited", the Appellate Division, citing Barone v Haskins, 193 AD3d 1388, observed that "a court may vacate an arbitrator's award where it finds that the rights of a party were prejudiced when 'an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made'".

The court, considering the Association's argument that the arbitrator's award failed to meet the standards of finality and definiteness, opined "An award is indefinite or nonfinal within the meaning of the statute 'only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'", citing Yoonessi v Givens, 78 AD3d 1622 and other decisions.

The Appellate Division said that contrary to the Association's contention, it concluded that the award sufficiently defined the parties' rights and obligations with respect to the controversy at issue* as the arbitrator's "award did not leave any matter submitted by the parties open for future contention, and thus, it was definite and final." 

In the words of the court, "The matter submitted by the parties concerned six specific alleged violations of the [collective bargaining agreement] CBA or past practice, and the award finally and definitely resolved that matter, determining that respondent did not violate either the CBA or past practice when it filled the vacancies as soon as was reasonably possible."

The Association had argued that the determination that past practice required positions to be filled as soon as reasonably possible will create new [sic] controversies between the parties in the future inasmuch "as there is no definition of what is reasonable." Rejecting this argument, the court said the award completely "dispose[d] of the controversy submitted", which was limited to three specific grievances involving six specific actions taken by the City of Niagara Falls. 

The award, said the Appellate Division, "fully resolved that controversy, denying the grievances and determining that the vacancies were filled in accordance with the past practice of filling vacancies as soon as reasonably possible." As there was nothing "open for future contention" with respect to those three grievances, the court concluded that the award "did not create any new controversy with respect to those specific grievances."

* The Association had contended that the City of Niagara Falls "violated the parties' collective bargaining agreement or past practice when it failed to immediately fill six specific vacancies."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Public Employment Relations Board's dismissal of the Petitioner's unfair labor practice charge against her union sustained

PERB concluded that the United Federation of Teachers [UFT] did not breach its duty of fair representation when it declined to demand Petitioner's grievance be submitted to arbitration. UFT had decided not to arbitrate Petitioner's grievance based on undisputed evidence that Petitioner was not between work assignments when she was struck by a car but instead had completed her last assignment of the day and was on her way home and that Petitioner was using her cell phone when crossing the street.

The Petitioner's employer's criteria for "line-of-duty-injury" [LODI] status required that the employee be "injured while performing duties connected with [her] assignment" and that the injury "could not have been foreseen or avoided with ordinary care by the injured employee." The Appellate Division opined that "UFT's decision was not so outside the 'wide range of reasonableness' afforded to unions in their representation of members as to be arbitrary," citing Matter of Civil Serv. Bar Assn., Local 237 Intl. v City of New York, 99 AD2d 264, affirmed 64 NY2d 188.*

Finding that PERB's decision regarding Petitioner's fair representation claim had "a rational basis," the Appellate Division said it "must affirm" PERB's determination.

In addition, citing Rochester Teachers Assn., 45 PERB ¶3033, the court sustained PERB's Administrative Law Judge's decision not to order UFT to produce its arbitration statistics as it was consistent with PERB's rules limiting the availability of discovery in improper practice charge disputes.

* In Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn, 268 AD2d 523, the Appellate Division, citing Matter of Blackburne, 87 N.Y.2d 660, observed that a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration,.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Former clerk/treasurer of village pleads guilty to stealing over $70k from village

On March 31, 2023, State Comptroller Thomas P. DiNapoli, St. Lawrence County District Attorney Gary Pasqua and the New York State Police announced that Nancy Berger, formerly the Clerk/Treasurer of the Village of Norwood, pleaded guilty to grand larceny in the second degree for stealing $73,725 from the Village.

“Nancy Berger treated the village as her personal bank account and abused the public’s trust,” DiNapoli said. “I thank District Attorney Pasqua and the New York State Police for their partnership. Justice is now served on behalf of Norwood residents.”

Berger stole the funds between 2018 and 2022 by writing Village checks to herself. Her theft, also known as jobbery,* was initially uncovered by the Village and she resigned from her position shortly after in June 2022. Berger was appointed Clerk/Treasurer in January 2017.

She pleaded guilty before Judge Gregory P. Storie in St. Lawrence County Court. She is due back in court for sentencing on May 31. 2023 and full restitution in the amount of $73,725 is anticipated. 

* Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".