Applying the Doctrine of Laches barring a party from seeking judicial or quasi-judicial relief because such action is determined to be untimely

If a petitioner fails to demand for relief within a reasonable time after the right to make it occurs, or knows or should know of facts indicating a clear right to relief, the petitioner's claim can be barred by the Doctrine of Laches. This was the situation in the instant CPLR Article 78 action in which Petitioner commenced a CPLR Article 78 proceeding seeking reinstatement of her employment with the Manchester-Shortsville Central School District [District].

During the 2019-2020 school year, Petitioner was employed by the District as a full-time English Language Arts (ELA) teacher. However, in June 2020, Petitioner's position was changed from full to part time. Petitioner's name was placed on a "preferred eligible list of candidates for appointment to a vacancy" pursuant to Education Law §3013(3)(a).* Subsequently the District posted an opening for a full-time ELA teacher. Petitioner applied for the opening and went through the formal application process, but when she was offered the position, she rejected the offer.

After the District hired an individual to fill the vacancy, Petitioner submitted a demand that she be recalled to her prior position pursuant to Education Law §3013(3)(a). The District refused Petitioner's demand and Petitioner commenced the instant CPLR Article 78 proceeding by filing a petition on November 10, 2021. Supreme Court effectively granted the District motion to dismiss Plaintiff's petition and Plaintiff appealed.

The Appellate Division, however, sustained Supreme Court's dismissal of Plaintiff's petition as untimely. The Appellate Division opined that, where, as here, a proceeding is in "the nature of mandamus to compel, it [is] required to have been commenced within four months after the refusal by [the] respondent, upon the demand of [the] petitioner, to perform its duty", citing Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181.

The Appellate Division explained that;

1. "The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time and does not refer to the equitable doctrine of laches", citing Granto, 148 AD3d at 1695"; and

2. "[T]he four-month limitations period of CPLR Article 78 proceedings has been treat[ed] ... as a measure of permissible delay in the making of the demand", citing Matter of Norton v City of Hornell, 115 AD3d 1232, lv denied 23 NY3d 907.

The Appellate Division conclude that under the circumstances, Petitioner knew or should have known of facts that gave her a clear right to relief as of April 19, 2021, when the District posted the opening for the full-time ELA teacher position. Petitioner, however, did not demand that she be recalled to her prior position until August 31, 2021, beyond the relevant four-month limitations period and thus "the proceeding is barred by the doctrine of laches."

* Petitioner was offered, and accepted, the position of a part-time ELA teacher, from which position Petitioner subsequently resigned for financial reasons.

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

 

Applicant for accidental disability retirement must show the disability resulted from an accident within the meaning of the Retirement and Social Security Law

Petitioner filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to posttraumatic stress disorder and injuries to his back and left knee as the result of the suspect's discharge of a firearm in Petitioner's direction and Petitioner's injury as a result of his attempting to scale a fence in the process of apprehending the suspect.

The New York State and Local Police and Fire Retirement System denied Petitioner's application, finding that the incidens giving rise to his application for accidental disability retirement benefits did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §363. Following a hearing, the Comptroller adopted the Hearing Officer's decision, and this CPLR Article 78 proceeding ensued.

The Appellate Division, citing Matter of Kelly v DiNapoli, 30 NY3d 674, sustained the Comptroller's decision, noting, as is relevant here, it is well established that an injury which occurs in the course of an activity undertaken in the performance of the ordinary employment duties of a police officer is not an accidental injury within the meaning of RSSL §363.

The court opined that the neither the suspect's discharge of a firearm in Petitioner's direction nor Petitioner's injury resulting from his attempt to scale a fence in the process of apprehending a suspect were the result of an accident within the meaning of RSSL §363. Rather, said the Appellate Division, Comptroller's determination is supported by substantial evidence the injuries suffered by Petitioner resulted from an inherent risk in Petitioner performing his duties as a police officer.

* See Matter of Grall v DiNapoli, 196 AD3d 962.

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

 

Seeking documents or information pursuant to New York State's Freedom of Information Law

In the Matter of Law Offices of Cory H. Morris [Plaintiff] v Suffolk County [Respondent], Plaintiff appealed the judgment of Supreme Court [1] denying Plaintiff's petition seeking the disclosure of certain records pursuant to New York State's Freedom of Information Law [FOIL];* [2] denying an award of attorney's fees and litigation costs; and [3] dismissing the proceeding.

The Appellate Division modified and reinstated, on the law, those branches of the petition which sought to compel disclosure of certain records pursuant to FOIL and for an award of attorney's fees and litigation costs. 

The Appellate Division then remanded the matter to Supreme Court for further proceedings, explaining a number of FOIL essentials, including the follows:

1. "In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;**

2. "The statutory time to respond to a FOIL request for records is 'within five business days of the receipt of a written request,' and the agency should respond by 'mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date ... when such request will be granted or denied'" ... that "[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number;

3. "21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days (Matter of Madden v Village of Tuxedo Park, 192 AD3d 802);

4. "[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial (Matter of Snyder v Nassau County, 199 AD3d at 924);

5. "A petitioner who does not 'appeal[ ] the denial in writing' will generally be deemed to have 'failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief' (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, citing Doe v Lake Grove Sch., 107 AD3d 841;

6. However, where, as here, the agency "fails to inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion [of administrative remedies] is excused (Matter of Lepper v Village of Babylon, 190 AD3d 738, Matter of Barrett v Morgenthau, 74 NY2d 907; [see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648];

7. Plaintiff's alleged "aware[ness] ... of the availability of administrative review ... did not relieve the agency of its responsibility to advise the [Plaintiff] that such review was available, and of the procedures for securing it (Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604);

8. "Contrary to the [Respondents'] contention, the proceeding was not rendered academic by its post-commencement disclosure of records in response to some of the [Plaintiff] requests, since an actual controversy between the parties still exists concerning whether the [Plaintiff's] remaining requests are exempt from disclosure (see Matter of Barry v O'Neill, 185 AD3d 503, 505; cf. Matter of McDevitt v Suffolk County, 183 AD3d 826; Matter of Convers v County of Orange, 139 AD3d 1060;

9. The Plaintiff's "request for attorney's fees and other costs is ... not academic, nor would it have been rendered academic even if the [Respondent] had eventually provided all of the materials sought (see Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896; and

10. "Since that branch of petition which was to compel disclosure of certain records remains undetermined in light of [the Appellate Division's] determination," the Appellate Division held that "the [Plaintiff's] request for an award of attorney's fees and litigation costs is premature (Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731; see Matter of McDevitt v Suffolk County, 183 AD3d at 828)."

Accordingly, as noted earlier, the Appellate Division reinstated those branches of the petition which were to compel disclosure of certain records and for an award of attorney's fees and litigation costs, and remitted the matter to Supreme Court, Suffolk County, "for further proceedings consistent herewith and a new determination of those branches of the petition."

* Public Officers Law, Article 6.

** N.B.: Typically submitting a "formal FOIL request" pursuant to administrative procedures established by the agency is required to obtain the documents or information sought. However, the release of certain public records may be prohibited by statute such as Education Law §1127 and §33.13 of the Mental Hygiene Law. Further, the agency may decline to provide documents or information sought pursuant to a FOIL request, or otherwise, that fall within the ambit of one or more of the "FOIL exceptions" that the agency could rely upon in denying a FOIL request, in whole or in part, absent a prohibition in law.

Click HERE to access the Appellate Divisions decision posted on the Internet.

 

NYC Health + Hospitals Struggles With Temporary Staffing Costs

 Click on text in COLOR to access the full report

A new report released on May 4, 2023, by State Comptroller Thomas P. DiNapoli found the COVID-19 pandemic exacerbated pre-existing staffing pressures, particularly a shortage of staff nurses, in NYC Health + Hospitals (H+H) facilities, leading to an increased reliance on temporary nurses and higher staffing costs.

Between February 2020 and September 2022, temporary staffing at H+H grew by 83% to offset the loss of staff nurses while managing demand for its services. It resulted in unexpected costs of $125 million in Fiscal Year (FY) 2023, which the State Comptroller’s office anticipates will remain elevated through at least FY 2024.

“For many NYC residents, NYC Health + Hospitals is a lifeline to quality health care, but it is a public health system struggling to get fully back on its feet after the stress of the pandemic,” DiNapoli said. “Hospitals and their staff were pushed to the brink during the pandemic. H+H lost hundreds of nurses, forcing them to hire temporary staff to manage demand due to the pandemic and its fallout, which increased salary costs and created training and other challenges.”

This report is an update to DiNapoli’s 2021 report, NYC Health + Hospitals Check-Up: The Impact of COVID-19. DiNapoli’s office routinely examines the finances and issues impacting the fiscal health of H+H.

The number of registered nurses (RNs) and licensed practical nurses at H+H facilities declined by 6% and 31%, respectively, from February 2020 to September 2022. As the pandemic persisted, RN staffing levels in H+H facilities declined at a greater rate than they did in the city overall and statewide. RN employment also declined in New York City and the rest of the state between 2019 and 2022 by 1.1% and 5.3%, respectively. Currently, H+H’s vacancy rate for nurses is 15%.

Hiring temporary staff to deal with the pandemic and its fallout on hospital staff is driving up hospital costs across New York City, including at H+H. It is estimated that in New York, contract labor costs across health care systems and hospitals have increased by more than 110% of pre-pandemic levels, with average temporary nurse salaries increasing from about $1,800 per week pre-pandemic to about $3,300 per week in March 2022.

New York City has historically provided financial support to H+H. It funds the non-federal share of supplemental Medicaid payments, among other costs, since H+H provides care to a large share of the city’s uninsured and Medicaid patients.

The city recently announced a new collective bargaining agreement with District Council 37 (DC 37) that it assumes will set a wage pattern for other unions, including for employees at H+H. A review of the city’s recently released budget update suggests collective bargaining costs at H+H are assumed to be fully annualized at $680 million, with nurses to make up about 29% of the total.

Related Reports 

NYC Health + Hospitals: Nurse Staffing Trends, May 2023

Issues Facing New York City's Agencies: New York City Health + Hospitals, February 2022

NYC Health + Hospitals Check-Up: The Impact of COVID-19, September 2021

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Arbitrating disputes involving health insurance benefits for retired employees

Citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, the U.S. Circuit Court of Appeals, Second Circuit noted "It is well settled in both commercial and labor cases that whether parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination" and "a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute." Further, said the court, "ordinary principles of contract law guide the inquiry into whether an arbitration agreement was validly formed and whether the parties consented to arbitrate a particular dispute."

That said, the Circuit Court opined that this case required it to decide whether "the grievance-and-arbitration provision of the parties' collective bargaining agreement" covers a dispute concerning the medical insurance benefits that, according to Local Union 97, International Brotherhood of Electrical Workers, AFL-CIO [Union], the Union and the employer, Niagara Mohawk Power Corporation, agreed to provide to certain retired employees, former members of the Union.

The Circuit Court concluded that the Union bargained both for health insurance benefits for retired employees and for a grievance procedure that included, where necessary, access to arbitration. Expressing no view regarding the merits of the Union's grievance as "that is a question for the arbitrator," the Circuit Court held that "it is clear that the parties intended to arbitrate this dispute" and affirmed the judgment of the federal district court granting the Union's motion to compel arbitration.

Click HERE to access the decision of the U.S. Circuit Court of Appeals, Second Circuit.