Where statements in an affidavit are contradicted by official records concerning an event, the official records trump the statements in the affidavit

The Board of Trustees [Board] denied a Plaintiff's application for accidental disability retirement [ADR] benefits pursuant to the World Trade Center [WTC] Disability Law, Administrative Code of City of NY §13-252.1 based on its finding that the official New York Police Department [NYPD] records showed that Petitioner was not working at a WTC-qualifying site during the first 48 hours after the November 11, 2001, attack on the World Trade Center or for 40 hours any time during the qualifying time period.

Plaintiff appealed the Board's decision. Supreme Court, however, dismissed Plaintiff's CPLR Article 78 proceeding seeking to annul the Board's determination. The Supreme Court's ruling was unanimously affirmed by the Appellate Division.

The Appellate Division's decision notes that official NYPD records showed that Plaintiff worked at various nonqualifying locations in New York City during the relevant time period. The court explained that the Board "was entitled to discount [Plaintiff's] affidavit concerning his presence at WTC-qualifying locations, since the averments in that affidavit were contradicted by NYPD records, including roll call records that [Plaintiff] signed."  

In addition, the Appellate Division's decision indicates:

[1] Plaintiff's "affidavit was at odds with the WTC Notice of Participation form that [Plaintiff] completed with respect to his activities on 9/11; and

[2] "The Board was entitled to reject affidavits from [Plaintiff's] family and friends on the grounds that they were conclusory, insufficiently specific, or not based on the affiants' personal knowledge."

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

 

Accidental Disability Retirement benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident

Supreme Court granted the petition brought a New York City firefighter [Firefighter]  pursuant to CPLR Article 78 to annul the determination of Board of Trustees of the New York City Fire Department, Subchapter II Fire Pension Fund [Fund] rejecting a Firefighter's application for accidental disability retirement [ADR] benefits and for attorneys' fees. Fund appealed Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law, without costs," and dismissed the proceeding brought pursuant to CPLR Article 78.

In the words of the Appellate Division, "ADR benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident, i.e., "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'", citing Matter of Brown v Kelly, 100 AD3d 480, quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 57 NY2d 1010, 1012.

The Appellate Division explained "[Firefighter's] injury was the result of an incidental — not accidental — event," referencing Matter of Kelly v DiNapoli, 30 NY3d 674, because Firefighter's injury was sustained while Firefighter was performing routine duties, not as a result of an unexpected event as the dehydration suffered by Firefighter while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise.

Further, citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the Appellate Division observed Supreme Court should not have awarded Firefighter attorneys' fees as there was "no basis for the award absent an agreement, statute, or court rule providing for [such] relief".

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

***

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Vacating an arbitration award pursuant to CPLR §7511

The Employer sought to terminate an Employee based on his arrest, criminal conviction, and the nature of the charges.

The collective bargaining agreement between the Employer and the Employee's collective bargaining representative [Union], provided arbitration is mandatory when the Employer seeks to discipline or terminate any employee. The Arbitrator was to decide whether the Employer had just cause for disciplining the employee and, if so, whether termination was the appropriate penalty.

The Arbitrator found that the Employer [1] had just cause to discipline Employee; [2] the Employee's actions created "adverse criticism" for the Employer; and [3] based on compelling mitigating factors, the appropriate penalty was a time-served suspension without pay rather than termination.

The Employer moved to vacate the award pursuant to CPLR 7511. The Union opposed the Employer's motion.

Noting that arbitration is highly favored in New York, Supreme Court, citing Falzone v NY Central Mutual Fire Insurance Company, 15 NY3d 530 and Goldfinger v Lisker, 68 NY2d 225, said although "courts seldomly disturb arbitration awards even if the courts would have reached a different conclusion ... [an] arbitration award, however, may be vacated upon a judicial finding that the rights of one of the parties was prejudiced by one of three reasons, the partiality of the arbitrator; or by corruption, fraud, or misconduct on the part of the arbitrator; or by a finding that the arbitrator exceeded her or his powers."

Observing that in Goldfinger the Court of Appeals expressly held that "precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded", Supreme Court opined that although Arbitrator prepared a thorough 14-page Opinion and Award, "the Opinion part lacks neutrality."

In the words of the court, "The Arbitrator crossed the thin and often difficult line between a compassionate neutral and an advocate for one side, the employee. The Arbitrator mistakenly believed that his role was to render a decision that aided and supported the employee's re-integration into the community rather than fairly and objectively decide an employer-employee dispute. In doing so, the Arbitrator prejudiced the [Employer's] right to a fair and impartial arbitration process."

Supreme Court then vacated the award on the ground of partiality pursuant to CPLR 7511(b)1.[ii] and, in compliance with the applicable terms of the collective bargaining agreement, ordered the matter remitted "expeditiously to arbitration with another arbitrator."

* The employee plead guilty to the crime of attempted endangering the welfare of a child.

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

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 3, 2023

Accelerating Traffic Safety Analysis

Biden Signs Executive Order Regulating Artificial Intelligence President Joe Biden is directing the government to take a sweeping approach to artificial intelligence regulation, his most significant action yet to rein in an emerging technology that has sparked concern and acclaim. READ MORE

Cyber Teams, Criminals Are Looking for Wins With Generative AI Companies are embracing cyber defenses based on generative AI hoping to outpace attackers’ use of tools like FraudGPT, the “villain avatar of ChatGPT.” But more effort is needed, experts warn. READ MORE

Digitizing Disbursements: The Next Step in Modernizing Government Transactions

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

Embracing Intelligent Automation

Federal Government Offers Cybersecurity Toolkit for Health Sector CISA and partners announced a toolkit bringing together advice and other resources to help health care and public health organizations improve their cyber postures. READ MORE

High-Velocity IT Service Management for Government

How Are State and Local Governments Navigating AI Regulation? President Joe Biden signed an executive order to regulate artificial intelligence, but how are state and local governments handling it? Many are exploring how AI can enhance services, while others are temporarily banning its use. READ MORE

Keeping Up With State and Local AI Policies and Guidelines Regulations around generative AI are rapidly evolving. This list will keep you up to date on what governments are doing to increase employee productivity and improve constituent services while minimizing risk. READ MORE

Learn How Public Sector IT Leaders are Closing Cyber Risk Gaps Created by Visibility Silos The mission: reduce the exposure of critical public infrastructure and services to cyberattacks. The roadblock: too many tools, yet not enough insight. The solution? Tanium. EXPLORE THE SOLUTION

Leveraging Identity: A Public Sector Guide for External Services

OMB Offers Draft AI Implementation Guidance for Comment New draft policy from the U.S. Office of Management and Budget aims to offer guidance for AI governance structures that will help agencies to implement and apply AI technologies in a responsible way. READ MORE

Personalizing Constituent Journeys: Measuring Digital Government Experiences 

Securing America's Digital Infrastructure We round up industry best practices on topics such as security, threats, and privacy. See how companies are helping state and local agencies tackle and prepare for all things cybersecurity.

The Public Sector Guide to Generative AI 

Tyler's New AI Acquisition Focuses on Government Field Work The gov tech giant has bought ARInspect, which sells an AI-backed platform for inspections of bridges, utilities and other public-sector assets and facilities. The move marks Tyler’s second AI buy in recent months. READ MORE

Vital U.S. Partnerships With Canada on All Things Cyber At the InCyber Forum North America, held this past week in Montréal, Canada, the importance of maintaining meaningful global partners in cybersecurity was never more evident. READ MORE

Website Redesign Tool Kit

What Artificial Intelligence Can Do for Public Works and Transportation

 

Evaluating an application for accidental disability retirement

Petitioner, a police officer, applied for accidental disability retirement benefits claiming that she was permanently incapacitated from performing her job duties due to injuries sustained in three incidents while "on the job".

At the hearing Petitioner conceded in her post hearing brief that the one incident, Incident #1, did not constitute an accident.* 

The Hearing Officer then found that the other two incidents reported did not constitute accidents within the meaning of the Retirement and Social Security Law. The Comptroller affirmed the Hearing Officer's determinations and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's ruling, explaining:

1. The applicant for accidental disability retirement bears the burden of establishing that the disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination will be sustained if supported by substantial evidence, citing  Matter of McDermott v Gardner, 215 AD3d 1206];

3. For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"; and

4. An injury that results from "the performance of ordinary employment duties and is a risk inherent in such job duties" is not considered accidental, noting the Appellate Division's decision in Matter of Walsh v DiNapoli, 214 AD3d 1282.

Referencing Matter of Bodenmiller v DiNapoli, 215 AD3d 96, the Appellate Division opined: "precipitating events that arise out of a risk inherent in the petitioner's ordinary job duties, i.e., the work performed ... can never be considered accidents because, by definition, they are not unexpected and therefore cannot be the basis for an accidental disability pension ...". 

* During the administrative hearing Petitioner's had counsel conceded that Incident #1 was not an accident and did not cause Petitioner's permanent disabilities but subsequently  retreated from that concession. In her post administrative hearing brief Petitioner argued that Incident #1 was, indeed, an accident. The Hearing Officer found that the concession that Incident #1 was not an accident apparently was a mistake and proceeded to rule on the issue, affirmatively finding that Incident #1 was not an accident. Under the circumstances, the Appellate Division said given "the confusion" and the fact that Petitioner raised the issue concerning Incident #1 in her petition, and in her appeal brief, it elected to address Incident #1 "on the merits".

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

 

 ===============

Disability benefits for New York State and municipal employees

An e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.