Appointing authority not required to provide reasons for not selecting an applicant eligible for appointment to the position where appropriate discretion has been exercised

The Plaintiff in this CPLR Article 78 action challenged the New York City Police Department's [NYPD], decision not select Plaintiff for appoint as a probationary police officer. Supreme Court granted NYPD's motion to dismiss Plaintiff's petition for failure to state a cause of action. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division, noting the Plaintiff failed "to allege any facts suggesting that NYPD's determination was arbitrary and capricious," explained that Plaintiff's passage of the civil service exam and other qualifications did not entitle him to an appointment.

Citing Matter of Gomez v Hernandez, 50 AD3d 404, the Appellate Division opined "Even [well-qualified] candidates such as [Plaintiff] ... can be denied [appointment] provided appropriate discretion is used within the confines of the 'one-of-three' rule in Civil Service Law §61.*

The court observed, "it is not arbitrary and capricious for an agency to provide no reason for an appointing official's exercise of discretion in declining to appoint a specific candidate". 

The decision also noted that Plaintiff's "allegations of delays and irregularities in the selection process do not meet his 'heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice'".

* Click HERE to access NYPPL's comments concerning the origin and application of the Rule of Three. 

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

 

 

Applying the "special errand" exception in adjudicating an application for Workers' Compensation benefits

A detective sergeant [Detective Sergeant], while on "standby-status", was en route to the precinct using his personal vehicle to travel to the precinct to, as required, secure a police vehicle to use to travel to a crime scene. Stopped at a traffic light, Detective Sergeant's vehicle was struck from behind by another vehicle, resulting in Detective Sergeant sustaining injuries.

Detective Sergeant's claim for workers' compensation benefits was controverted by his self-insured employer and its third-party administrator [Employer]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] found that the accident arose out of and in the course of Detective Sergeant's employment. Employer appealed and the Workers' Compensation Board [Board] reversed the decision of the WCLJ and disallowed the claim, finding that Detective Sergeant "was not within the scope of his employment while traveling to work and that the special errand exception did not apply."

Detective Sergeant appealed and the Appellate Division, citing Workers' Compensation Law §10[1] and earlier court decisions, reversed the Board's ruling, explaining "An injury sustained by an employee is compensable under the Workers' Compensation Law if it "aris[es] out of and in the course of the employment".  Further, said the court, "[g]iven the remedial nature of the Workers' Compensation Law, [this court has] consistently construed this requirement liberally[] in order to effectuate the economic and humanitarian objectives of the act", citing Matter of Lemon v New York City Tr. Auth., 72 NY2d 324.

Conceding that typically injuries "incurred while commuting to work are generally not covered because the risks inherent in traveling to and from work relate to the employment only in the most marginal sense", the Appellant Division ruled, as relevant here, "[t]he 'special errand' exception [rule] considers an employee to be acting within the scope of employment where, at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel''.

At the Workers' Compensation hearing, there was testimony from the Employer's witness that Detective Sergeant's shift and overtime pay did not begin until Detective Sergeant, then on "stand-by" status, "arrived at the police station and checked out a police vehicle." Such fact, said the court, even if true, is not dispositive of whether the special errand exception applies. Irrespective of when Detective Sergeant's overtime pay began, the court held that as the record reflects that Detective Sergeant was contacted at 4:15 a.m., at which time Detective Sergeant was engaged in a special errand, as he was then required to report to work early in order to pick up a police vehicle so that he could proceed directly to the crime scene in that vehicle.

Although Detective Sergeant testified that he traveled to the police station along his usual geographical route, the Appellate Division noted that "the work-related activity that Detective Sergeant was encouraged/required by his employer to do and performed for the employer's benefit upon being called in early while on standby" required Detective Sergeant to "alter[ ] the usual . . . temporal scheme of travel, thereby altering the risks to which [Detective Sergeant was] usually exposed during normal travel."

Although the Board identified the correct standard articulated by the Court of Appeals, the Appellate Division concluded that the Board had misapplied "the special errand exception by overlooking the altered temporal scheme of [Detective Sergeant's] travel and significance of the work-related activity performed by claimant for the Employer's benefit upon being contacted by the Employer while on standby."

The Appellate Division reversed the Board's decision and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision."

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

 

Preliminary injunction bars the City of New York from continuing to collect co-payments from certain health insurance plan participants and beneficiaries

Supreme Court New York County Justice Lyle E. Frank issued a preliminary injunction preventing the City of New York continuing to require certain beneficiaries of Senior Care, a Medicare supplement plan offered by the City of New York to its current and retired employees, and their eligible dependents, to collect $15 co-payments then being charged.

The City appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division opined:

1. "Supreme Court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action," citing LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, [2d Circuit 2004];  

and

2. "Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits".

The Appellate Division's decision is set out below:

 

Bianculli v City of New York Off. of Labor Relations

2023 NY Slip Op 02822

Decided on May 25, 2023

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: May 25, 2023
Before: Webber, J.P., Kern, Oing, Scarpulla, Rodriguez, JJ.

Index No. 160234/22 Appeal No. 291 Case No. 2023-00232

[*1]MargaretAnn Bianculli etc. et al., Plaintiffs-Respondents,

v

The City of New York Office of Labor Relations et al., Defendants-Appellants.

Pillsbury Winthrop Shaw Pittman LLP, New York (James M. Catterson of counsel), for EmblemHealth, Inc., and Group Health Incorporated (GHI), appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Chole K. Moon of counsel), for The City of New York Office of Labor Relations and The City of New York, appellants.

Walden Macht & Haran LLP, New York (Jacob S. Gardener of counsel), and Pollack Cohen LLP, New York (Steve Cohen of counsel), for respondents.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered January 11, 2023, which granted plaintiffs' CPLR 6301 motion for an order preliminarily enjoining defendants from charging co-payments to Senior Care health insurance plan beneficiaries, unanimously affirmed, without costs.

This action relates to $15 co-payments charged to beneficiaries of Senior Care, a Medicare supplement plan offered by defendant the City of New York to its current and retired employees and their dependents, partially administered by defendant Group Health Incorporated (GHI), a subsidiary of defendant EmblemHealth, Inc. (together, Emblem).

We decline to disturb the preliminary injunction. Contrary to defendants' contentions, the injunction was prohibitory, not mandatory, and thus, was not subject to a heightened standard. The injunction prohibits defendants from continuing to collect co-payments and does not mandate specific conduct by them (State of New York v Town of Haverstraw, 219 AD2d 64, 65-66 [2d Dept 1996]; see generally Second on Second CafÉ, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009]).

Supreme Court properly determined that on this record plaintiffs established a likelihood of success on the merits. The court properly determined that plaintiffs, who are mostly retirees and likely to be on a fixed income, would suffer irreparable harm — delaying or foregoing medical care, and inability to pay certain expenses, including necessities such as utilities — if they were required to continue paying the co-payments pending determination of this action (e.g. LaForest v Former Clean Air Holding Co., Inc., 376 F3d 48, 55-56 [2d Cir 2004]). Although most of the affiants averring to the nature of the harm were not named plaintiffs, defendants do not dispute that plaintiffs are likely to obtain class certification, which is supported by allegations in the complaint, and they do not dispute that the affiants would be members of the class (see id. at 57). Absent any contrary argument by defendants on the motion, it was reasonable for the court to conclude that the affiants were representative of the putative class (see id. at 58).

The court providently determined that the balance of equities favored plaintiffs. Although plaintiffs delayed in filing this action, defendants' showings regarding hardship were conclusory and limited to routine administrative actions, and not as burdensome as the hardship to plaintiffs if the injunction were denied.

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

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

ENTERED: May 25, 2023

 

New York State Comptroller DiNapoli releases municipal and other audits

New York State Comptroller Thomas P. DiNapoli announced the audits and reports listed below were issued were issued during the week ending May 26, 2023

Click on the text highlighted in color to access the full report. 

 

Town of Preble – Non-Payroll Disbursements (Cortland County) The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, there is an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Specifically, town officials did not segregate the bookkeeper’s duties or implement critical controls. In addition, the board could improve its annual audit of the supervisor’s records and reports.

 

Town of Greig – Long-Term Planning (Lewis County) The board did not establish long-term financial and capital plans or fund balance and reserve policies. Therefore, the board lacks important tools to project current and future operating and capital needs and has not outlined its intentions for financing future capital improvements or equipment purchases. Auditors reviewed the town’s capital assets and found that 15 of the 27 pieces of major highway equipment were beyond their optimal useful life and some of the equipment had observable damage. A lack of properly functioning highway equipment contributed to the town being unable to use more than $73,000 of available state funding as of the end of 2021.

 

Village of Sidney – Financial Activities (Delaware County) The board and clerk-treasurer did not properly monitor selected financial activities. As a result, total general fund balance for fiscal year-end 2021-22 was overstated by $571,719, the transparency of village financial operations was compromised, and taxpayers were not assured the board was effectively monitoring airport operations and financial condition. For the past five years, the total airport operating deficits exceeded $293,000. In addition, delinquent taxes totaling $575,182 date back to fiscal year 2011-12 and officials cannot identify which taxpayers owe $60,452 of that total. General fund assets were also overstated by $288,510 and liabilities by $434,929 in fiscal year 2021-22. Lastly, two capital project funds and three community development funds have negative fund balances that may require a transfer from the general fund to pay remaining liabilities. About $700,000 of the village’s $1 million fund balance may be needed to satisfy the liabilities.

 

City of Yonkers – Budget Review (Westchester County) Some revenue and expenditure projections in the proposed budget are unreasonable. Furthermore, officials’ continued practice of using debt to pay for recurring costs is imprudent. The review found the city’s proposed budget continues to rely on $112.3 million in nonrecurring revenue, such as appropriated fund balance, one-time state funding and the sale of property to finance its operations. In addition, the budget includes revenue estimates for income tax surcharge, sales and use tax as well as city and state mortgage tax that may not be achievable. The budget also includes $8.5 million for contractual settlements; five of the city’s eight union collective bargaining agreements have expired or will expire soon and the city could face additional expenditures when these contracts are settled.

N.B. The city’s proposed budget also includes the Yonkers Public School District’s budget. The review found the district’s proposed budget is structurally unbalanced with a budget gap of at least $33 million and overestimates state funding for basic aid by approximately $1.2 million. The budget also relies on $12 million of additional state aid for services and expenditures which may not be available in future years and does not include a specific appropriation for contractual settlements.

 

New York State Throughway Authority

Audit
New York State Thruway Authority: Selected Aspects of Toll Collections

Related Report
Assessment of NYS Thruway Authority Finances and Proposed Toll Increases

"The state’s Thruway Authority has to do a better job of identifying, billing, and collecting tolls and related fees, including $276.3 million it has a collection agency seeking as of March 2023", according to a new audit from State Comptroller Thomas P. DiNapoli.

"This audit has identified ways in which the Thruway can improve its collection of tolls and fees,” DiNapoli said. “Based on the Authority’s response, I’m hopeful action will be taken to implement our recommendations to maximize revenue for the Thruway.”

Tolls and related fees  make up more than 90% of the Thruway’s revenue. Ninety percent of toll revenues are from users of E-ZPass with the rest through Tolls by Mail. In 2021, the Thruway collected $804 million from tolls and related fees. Nearly half (43%) of the unpaid tolls and related fees, $119.3 million, is owed by out-of-state drivers. A substantial portion of that money is from vehicles registered in New Jersey ($34.2 million) and Connecticut ($16.7 million).

Vehicle owners get a warning if their E-ZPass account has a negative balance for over 30 days. If no payment is made in the next 30 days, the account is canceled and a $25 fee is charged. If the E-ZPass device isn’t returned another $16 fee is added. Tolls by Mail that aren’t paid in 30 days trigger a warning notice and a $5 fine. If it’s still not paid 30 days later, it is in violation and a $50 fee is added to the invoice. Thirty days after the violation notice, the Thruway can send it to a collection agency.

Lapse in Collections
During the audit period, the Thruway used two collection agencies. When the first vendor’s contract expired Sept. 15, 2020, it returned the uncollected accounts totaling $430 million to the Thruway. This included $14 million in negative balances and $416 million in tolls and related fees.

The second collection agency’s contract took effect January 2021, but the Thruway did not send it any accounts to collect until July, more than nine months after the last contract had expired. Thruway officials said the new vendor needed time to reprogram its system to incorporate revisions in toll violations and that, while there was no collection agency during this time, it continued to collect overdue payment through its in-house customer service employees.

Registration Suspension Program
The Thruway can ask the Department of Motor Vehicles (DMV) to suspend the registration of any in-state passenger vehicles that do not pay tolls, fees, or other charges, if they have three or more violations in five years, and for commercial vehicles, if they owe $200 or more over five years. The Authority has a reciprocity agreement with Massachusetts — it’s only such agreement — to request registration suspensions there.

The Thruway halted the suspension program in January 2018 as cashless tolling was being introduced following negative press and public concerns related to system problems including erroneous billings and excessive fees It resumed the program four-and-a-half years later in July 2022, but has made very limited use of it. Separate from the accounts with the Thruway’s collection agency, auditors found 257,917 past due accounts, owing $288.4 million, that were eligible for suspension.

Of these, 49,740 customers were persistent violators that had outstanding balances every year going back to 2017. Since restarting the program, however, the Thruway has referred 60 or fewer plates per week for suspension and had just two employees assigned to the program.

Rejected License Plate Images
Auditors also found  fault with the Thruway’s  identification of license plates from the images it takes. The audit sampled 161 images that were rejected and found 11% were identifiable and billable. Auditors also estimated the Thruway missed out on billing an additional $7.2 million in tolls last year based on the number of license plate images that were rejected for reasons, such as being too dark or too bright, that were within the Thruway’s ability to fix.

DiNapoli made several recommendations to the Thruway for improving its identifying, billing and collecting tolls and related revenue to the Thruway, including that it:

• Ensure that there is a smooth transition in any change of collection vendors to avoid gaps in service.
• Establish procedures for dismissing violation fees, including the selection criteria that explain why they are being dismissed and the basis for the amounts.
• Review accounts that are eligible to have their vehicle registration suspended to determine where collection efforts will have the best results, and assess the feasibility of entering into registration suspension agreements with more states in addition to Massachusetts.
• Revise the methodology for selecting accounts to refer to DMV for suspension to target persistent violators and accounts nearing the 6-year statute of limitations.
• Ensure that all images rejected by the automated process that are identifiable manually are billed.
• Monitor trends in the incidences of rejected images and take appropriate corrective actions.

The Comptroller’s Office has another audit of the Thruway Authority’s cashless tolling program that is currently in progress, related to billing accuracy and the Authority’s Office of the Toll Payer Advocate’s handling of consumer complaints.

The Authority agreed with three of the audit’s 11 recommendations. It did not state whether it agreed or disagreed with the others, but indicated an understanding in principle. Its full response is available in the audit.

Audit
New York State Thruway Authority: Selected Aspects of Toll Collections

Related Report
Assessment of NYS Thruway Authority Finances and Proposed Toll Increases

 

 

Links to NYPPL summaries of selected decisions alleging unlawful discrimination in violation of state and federal civil rights laws

Selected summaries of decisions alleging unlawful discrimination in violation of state and, or, federal civil rights laws posted by New York Public Personnel Law.

Click on text to access the summary.

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented

 

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

 

A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)

 

A school board must comply with its own rules and regulations, which have the force and effect of law

 

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries

 

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination

 

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

 

An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

 

Appeal pursuant to New York State's Dignity for All Students Act submitted to the Commissioner of Education

 

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

 

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing

 

Applying the Doctrine of Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging unlawful discrimination

 

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

 

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy

 

Arbitrator's award in a disciplinary arbitration of alleged sexual harassment charges vacated as violative of public policy

 

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

 

Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty

 

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

 

Complying with New York State mandatory sexual harassment training requirements

 

Constructive termination

 

Court dismissed employee's petition seeking reinstatement to her former employment in the absence of her showing "irreparable harm"

 

Courts annul appointing authority's termination of a probationary employee finding that the appointing authority failed to demonstrate a legitimate, nondiscriminatory purpose for probationer's termination

 

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

 

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

 

Determining the amount of an award by the Division of Human Rights following its finding that an employee suffered discriminatory retaliation

 

Determining the economic damage suffered by a victim of unlawful discrimination

 

Duty of fair representation

 

EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment

 

Electronic surveillance

 

Employee alleges employer ignored her sexually hostile work environment and the negligent supervision claims

 

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability

 

Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits Matter of Ferro, 283 AD2d 828

 

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence

 

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

 

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination

 

Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

 

Failure to allege any adverse employment action fatal to unlawful age discrimination complaint

 

Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint

 

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

 

Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

 

Failure to file prehearing statements required by the reviewing agency’s rules held to constitute a “waiver of defenses”

 

Filing an employer application for involuntary ordinary disability retirement on behalf of the employee

 

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News

 

Imposing a reasonable disciplinary penalty under the circumstances

 

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

 

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

 

Initiating litigation in federal court under a pseudonym

 

It is legally possible to find "accidental results" flowing from "intentional causes" for the purposes of indemnification pursuant to the terms of an insurance policy

 

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

 

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

 

Litigating allegations of same-sex sexual harassment

 

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

 

New York State's Human Rights Law bars discrimination against heterosexual individuals

 

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

 

Postings on Employment Law Notes

 

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

 

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Qualified privilege may be claimed in defending statements made for a supervisory purpose in an employment context alleged to be defamatory

 

Quid pro quo sexual harassment

 

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

 

Religious Accommodations in the Workplace

 

Representation and indemnification of public officers and employees sued in connection with official duties

 

Requirements for stating a justiciable claim alleging the employer intentionally inflicted emotional distress on the distressed employee

 

Responsibility of employers in cases of sexual harassment

 

Retaliatory dismissal

 

Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

 

Second Circuit rules failure to investigate discrimination complaint not adverse employment action

 

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

 

Settlement of disciplinary arbitration must be in writing to be enforced by a court

 

Sexual harassment and discrimination

Sexual harassment complaints

 

Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

 

Signing a general release of all claims accruing up to the settlement date

 

Social Media - its use by employers in pre-employment, employment and post-employment situations

 

Students sue school district alleging school district administrators violated their civil rights

 

Syllabus for the United States Supreme Court's ruling in Bostock v Clayton County, Georgia addressing unlawful discrimination targeting gay and transgender employees

 

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

 

Teacher the target of sexual harassment complaints

 

Termination for disruptive behavior claimed to violate the State’s Human Rights Law

 

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

 

Test used by courts to resolve a former employee's constructive dismissal claim

 

The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation

 

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

 

The essentials elements of processing a complaint alleging retaliation constituting unlawful discrimination

 

The Plausibility Standard

 

Unlawful discrimination on the basis of gender identity

 

Using e-mail as evidence in disciplinary actions

 

Workfare with a public agency not public employment