The litigation of a CPLR Article 78 petition determined to be barred by the doctrine of res judicata

The Doctrine of Res Judicata prevents a party from bringing a claim once that particular claim has been subjected to a final judgment in earlier litigation where:

(1) the parties are the same; 

(2) the subject matter of the claim is the same; 

(3) the issues are the same and relate to the same subject matter; and 

(4) the capacities of the parties are the same with respect to the subject matter and the issues presented.

The Appellate Division held that the instant CPLR Article 78 proceeding was barred pursuant to the doctrine of res judicata.

Citing Matter of Police Benevolent Assoc. of The City of New York, Inc. v de Blasio, Supreme Court, Richmond County, Feb. 16, 2022, the Appellate Division held that the matters raised in the instant Article 78 petition were the subject of a prior Article 78 proceeding in Richmond County in which Supreme Court issued a valid final judgment on the merits, denying the petition and dismissing the proceeding.

Furthermore, opined the Appellate Division, "the claims in this proceeding are substantially similar to claims that the court in the Richmond County proceeding declined to address on the grounds that they were raised for the first time in reply" which petitioners could have raised by including them in the petition or by seeking leave to amend the petition.

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

A claimant for unemployment insurance benefits must be totally unemployed to be eligible to receive such benefits

A full-time school district teaching assistant [Claimant] was also employed as a part time home instruction teacher. When furloughed from her part-time position, Claimant filed an application for unemployment insurance benefits. Based upon Claimant's weekly certifications that she had worked zero days during the week for which she was certifying for benefits, Claimant received unemployment insurance benefits for that period as well as federal pandemic unemployment compensation [FPUC] pursuant to the Coronavirus Aid, Relief and Economic Security Act of 2020 [The CARES Act].

The Department of Labor [Labor], however, determined that Claimant was ineligible for unemployment insurance benefits because she was not totally unemployed as she continued to work at and receive her full salary from the school district during the relevant time period. Accordingly, Labor charged her with recoverable overpayment of the state benefits and FPUC received and imposed a monetary penalty and forfeiture of future benefit days based upon a finding that Claimant made willful false statements to obtain those benefits.

An Administrative Law Judge sustained Labor's initial determinations, which decision was affirmed by the Unemployment Insurance Appeal Board [Board]. Claimant appealed the Board's decision.

The Appellate Division sustained the Board ruling, noting that the record and Claimant's testimony indicated that Claimant "continued to work remotely in her full-time position at the school district and to receive her regular salary during the period at issue." The court found that the Board's decision that Claimant was ineligible for unemployment insurance benefits because she was not totally unemployed was supported by substantial evidence. Acknowledging the Board's finding that Claimant was not totally unemployed, the Appellate Division concluded that as Claimant was ineligible for unemployment insurance benefits under state law, Claimant was also ineligible to receive federal pandemic assistance under the CARES Act.

As to the Board's recovery of the overpayment of benefits, the court noted that where a claimant willfully makes a false statement or representation, or willfully conceals a pertinent fact in connection with his or her claim for unemployment insurance benefits, even if the misrepresentation was unintentional, the benefits paid to the claimant are recoverable.

Considering that Claimant did not disclose her continued full-time employment by the school district when certifying for and obtaining unemployment benefits, the Appellate Division opined that "there is no basis to disturb the Board's finding that the benefits paid to [Claimant] were recoverable."

In addition, as Claimant failed to disclose a pertinent fact and therefore made willful false statements, the Appellate Division held that the imposition of a monetary penalty and forfeiture of future benefit days was warranted. Finally, said the court, the FPUC received by Claimant was also recoverable.

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

The writ of mandamus and other ancient common law "writs"

In order to compel a public officer or body to perform a particular act or correct an omission, a party may seek a court order in the nature of a Writ of Mandamus, one of the ancient writs in common law. This writ is an extraordinary remedy and if granted by the court, would compel "an officer or body to perform a specified ministerial act that is required by law to be performed".

In contrast, mandamus "does not lie to enforce a task or duty that is discretionary" as demonstrated by the decisions in Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, affd 32 NY3d 1091, cert denied, 139 S Ct 2651; and  Matter of Meyer v Zucker, 185 AD3d 1265, lv denied 36 NY3d 904).

As the Appellate Division explained in Alliance, supra, "A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result". Further, mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, as the Court of Appeals opined in Klostermann v Cuomo, 61 NY2d 525, mandamus will lie to compel a body to perform a mandated duty, not how that duty is to be performed.

As the Appellate Division noted in Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535, quoting Tango v Tulevech, 61 NY2d 34, "A discretionary act 'involves the exercise of reasoned judgment which could typically produce different acceptable results[,] whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result' ".

Other ancient common law writs include the writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].

 The University of Southern California [USC] Gould School of Law has created an "English Medieval Legal Documents Database, A Compilation of Published Sources from 600 to 1535" which it has posted on the Internet. Click HERE to access this resource posted by USC.

New York's Civil Practice Law and Rules [CPLR], sets out the modern equivalents of the surviving ancient writs available in New York jurisprudence as noted in Matter of Brusco v Braun, 84 NY2d 674.

 

 

Vicarious liability of agencies for the alleged negligence of operators of the agency's fire and other emergency vehicles

In recognition of the unique responsibilities placed on fire truck and other emergency vehicle operators to respond quickly to calls for aid, Vehicle and Traffic Law §1104 grants such drivers the "privilege" to proceed past red lights when involved in emergency operations, as long as specified safety precautions are observed and they do not act recklessly.*

With respect to volunteer fire companies, General Municipal Law §205-b makes fire districts vicariously liable "for the negligence of volunteer firefighters" when they operate fire district vehicles in the discharge of their duties.

The issue before the Court of Appeals in this action was whether the relevant statutes authorize a claim against a fire district for the alleged "negligence" of a volunteer firefighter when the firefighter's actions are otherwise privileged and subject to a heightened recklessness standard under Vehicle and Traffic Law §1104.

The Court of Appeals concluded that that imposition of vicarious liability for a driver's negligence within the context of the instant appeal would be contrary to legislative intent, the precedents of the Court of Appeals and general principles of negligence law and vicarious liability.

* See Vehicle and Traffic Law §1104 [a]-[c], [e]).

Click HERE to access the full text of the Court of Appeals' decision posted on the Internet.

 

Hearsay evidence is admissible in an administrative hearing

The Plaintiff [Petitioner] in this CPLR Article 78 action was accused of leaving a 22-month-old child alone and unsupervised, outside on a playground while acting in her capacity as a day care worker at a community family development day care center. The Dutchess County Department of Community and Family Services investigated the report and thereafter determined that the report of "maltreatment" was appropriate.

Petitioner made an application to the New York State Office of Children and Family Services [OCFS] to amend the indicated report of the State Central Register from "indicated" to "unfounded" and to seal the report. OCFS denied Petitioner's application. Petitioner then commenced  an Article 78 CPLR proceeding seeking judicial review OCFS' determination.

Citing Matter of Brown v Velez, 153 AD3d 517, the Appellate Division observed that at an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established "by a preponderance of the evidence"*.

Further, opined the court, "Judicial review of a determination that a report of child maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record" noting that where substantial evidence exists, "the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

Concluding that the Petitioner was one of the individuals responsible for the child at the time of the incident is supported by substantial evidence in the record, the Appellate Division opined contrary to Petitioner's contention, "the fact that the [OCFS]  determination was based, in large part, on hearsay evidence, does not require a different conclusion. Hearsay is admissible in an administrative hearing and, in this case, was sufficiently relevant and probative to support the determination".

* The preponderance of the evidence test requires that each element of the proof advanced by the charging party's "is more likely true than not."

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