Judicial review of a determination denying a petitioner's application for performance of duty disability retirement benefits

Petitioner, a police officer, filed an application for performance of duty disability retirement benefits, alleging that he was permanently incapacitated therefrom due to injuries sustained to his neck and back after falling down a set of stairs. The application was denied, and Petitioner requested a hearing and redetermination. At the conclusion of the hearing that followed, during the course of which Petitioner, his treating physician and the physician who evaluated Petitioner at the request of the New York State and Local Retirement System [ERS] appeared and testified, the Hearing Officer upheld the denial, finding that Petitioner failed to demonstrate that he was permanently incapacitated from the performance of his duties. The State  Comptroller adopted the Hearing Officer's findings and conclusions, and Petitioner initiated a CPLR Article 78 proceeding to challenge the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, explaining:

1. Petitioner, as the applicant, bore the burden of establishing that he was permanently incapacitated from the performance of his duties as a police officer "as the natural and proximate result of a disability . . . sustained in such service";

2. The State Comptroller "is vested with the exclusive authority to determine all applications for retirement benefits";

3. The Comptroller's determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed; and

4. Conflicting medical testimony presented a credibility issue for the Comptroller to resolve and the opinion rendered by Petitioner's treating physician was not entitled to greater weight over that of the physician who evaluated Petitioner at the request of the ERS and the Comptroller was free to credit ERS' expert's opinion over that of Petitioner's, despite the treating physician familiarity with the Petitioner.

Thus, the Appellate Division opined that the Comptroller's determination was supported by substantial evidence.

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

 

Paid Family Leave for employees of the State in Managerial or Confidential positions

This addition to 4 NYCRR 28-1.19 provides for a grant of up to twelve weeks of paid family leave for a "qualifying event" to eligible employees of the State as the employer serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law [the so-called Taylor Law].

The text of rule and any statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Elements considered by courts in actions seeking to vacate an arbitration award

In a proceeding pursuant to CPLR Article 75 to vacate an arbitration award, the Petitioner appealed from a judgment of the Supreme Court denying his petition and dismissing the proceeding. The Appellate Division affirmed the Supreme Court's judgment, with costs.

Noting that judicial review of an arbitration award "is extremely limited", the Appellate Division, citing Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146, explained that under CPLR 7511, "an [arbitration] award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect".

"An arbitrator 'exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'", citing American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64.

Further, a party seeking to overturn an arbitration award "bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence" (See Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 185 AD3d 811).

The Appellate Division opined that in this action Petitioner "failed to show, by clear and convincing evidence, a basis for vacating the arbitration award pursuant to CPLR 7511."

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

 

An invitation to join the New York State Comptroller's team

The New York State Comptroller's office employs over 2,700 public servants statewide who are dedicated to ensuring taxpayer dollars are used effectively and for public good. The team consists of auditors, financial, business and policy analysts; information technology specialists, contract managers, investigators, and more.

New York State Comptroller Thomas P. DiNapoli invites interested individuals to learn more about his office which includes:

• Managing the New York State Pension Fund, one of the best-funded and best-managed public pension plans in the nation.
• Administering the New York State and Local Retirement System for more than one million members, retirees and beneficiaries and employers.
• Protecting taxpayer funds by uncovering waste, fraud and abuse at all levels of government.
• Fighting public corruption and pension fraud.
• Returning millions in unclaimed funds to rightful owners.
• Providing independent fiscal oversight on State, New York City and local finances.
• Providing technical assistance and training to local government officials and school districts.
• Reviewing State contracts and auditing payments, maintaining the State's accounting system and administering the State payroll.
• An much, much more.
  

To get started:

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Appeal to the Commissioner of Education pursuant to §306 of the Education Law dismissed as untimely, for lack of proper service and for lack of jurisdiction

The Petitioner in this action asked the Commissioner of Education to remove the President of the school district's Board of Education pursuant to §306 of the Education Law, alleging the President defamed him at a board meeting and that the President’s comments "have had a negative personal and professional impact on him."

In rebuttal, the school district contended that Petitioner's application was untimely, must be dismissed for improper service, and the Petitioner's allegations of defamation and slander are outside the jurisdiction of the Commissioner.*

The Commissioner held that the Petitioner's application must be denied as untimely, noting "An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown". The Commissioner rejected Petitioner's argument that such lateness should be excused "due to his lack of knowledge concerning the appeal process." In the words of the Commissioner this was "not a sufficient basis to excuse a delay in commencing an appeal or removal application", citing a number of Decisions of the Commissioner of Education including Application of S.D., 60 Ed Dept Rep, Decision No. 18,009.

The Commissioner also noted Petitioner's application must also be denied for lack of personal service as §275.8(a) of the Commissioner’s Regulations requires that a petition be personally served upon each named respondent. In this instance Petitioner's affidavit of service indicates that service was made upon the district clerk.  Petitioner, however, was required to serve the President, the individual whose removal he sought, personally.

Addressing the President's request for a certificate of good faith pursuant to Education Law §3811(1) the Commissioner explained that "[such] certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent's duties as a board member or other official listed in section 3811(1)". As Petitioner's appeal was dismissed on procedural grounds without any findings on the merits, the Commissioner certified that the President was entitled to the requested certification [see Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223].

* The Commissioner noted that she "lacked jurisdiction to adjudicate Petitioner’s claims of defamation or slander", citing Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051 and Appeal of Murray, 56 id., Decision No. 17,002.

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