Village sued to recover damages for alleged negligent hiring, retention, supervision, and training of a sworn officer employed by the village's police department

 

Olsen v Butler

2024 NY Slip Op 02713

Decided on May 15, 2024

Appellate Division, Second 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 on May 15, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
WILLIAM G. FORD
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.

2022-00032
(Index No. 2033/21)

[*1]Steven Olsen, respondent,

v

Brian E. Butler, et al., defendants, Village of Tuxedo Park, et al., appellants.

McCabe & Mack LLP, Poughkeepsie, NY (Kimberly Hunt Lee of counsel), for appellants.

Michael J. Aviles & Associates LLC, New York, NY (Natascia Ayres of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring, training, supervision, and retention, the defendants Village of Tuxedo Park and Tuxedo Park Police Department appeal from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 8, 2021. The order, insofar as appealed from, denied that branch of those defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention asserted against them.

ORDERED that the appeal from so much of the order as denied that branch of the motion of the defendants Village of Tuxedo Park and Tuxedo Park Police Department which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention insofar as asserted against the defendant Tuxedo Park Police Department is dismissed as academic since the Tuxedo Park Police Department is no longer a named defendant in the action; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In March 2021, the plaintiff commenced this action against, among others, the Village of Tuxedo Park, the Tuxedo Park Police Department (hereinafter the Police Department), and Michael Taback, a Police Department sergeant. The plaintiff alleged that, in October 2020, Taback, while off-duty and inebriated, verbally assaulted, physically attacked, and shot the plaintiff at the Golden Rail Ale House in Newburgh. In an amended complaint, the plaintiff asserted a cause of action to recover damages for negligent hiring, training, supervision, and retention against the Village and the Police Department (hereinafter together the defendants). Thereafter, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them. The plaintiff opposed the motion and cross-moved for leave to serve and file a second amended complaint. In an order dated December 8, 2021, the Supreme Court granted the plaintiff's cross-motion for leave to serve and file a second amended complaint, and deemed the second [*2]amended complaint served and filed. The second amended complaint did not name the Police Department as a defendant. The court also denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention asserted against them.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Bumpus v New York City Tr. Auth., 47 AD3d 653, 654). When evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Quiroz v Zottola, 96 AD3d 1035, 1037).

To establish a cause of action based on negligent hiring, retention, supervision, and training of an employee, a plaintiff must demonstrate that the "employer knew or should have known [that] the employee[ ] [had] a propensity for the conduct which caused the [plaintiff's] injury" (Bumpus v New York City Tr. Auth., 47 AD3d at 654 [internal quotation marks omitted]; see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157). "[A]llegations that a defendant had actual knowledge of prior acts by an employee similar to those alleged in the complaint satisfy the notice element" (Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 158). The notice element is also satisfied if "a reasonably prudent employer, exercising ordinary care under the circumstances, would have been aware of the employee's propensity to engage in the injury-causing conduct" (id. at 158-159).

Here, the second amended complaint sufficiently alleged that the Village knew or should have known of Taback's alleged propensity for the conduct that the plaintiff alleged caused his injuries (see Hutchinson-Headley v HP Arverne Preserv. Hous. Co., Inc., 219 AD3d 709, 711; Belcastro v Roman Catholic Diocese of Brooklyn, N.Y., 213 AD3d 800, 802). The second amended complaint also sufficiently alleged that the Village knew or should have known that it had the ability to control Taback and of the necessity and opportunity for exercising such control, and that Taback engaged in tortious conduct using property or resources available to him only through his status as an employee (see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 157). Moreover, contrary to the defendants' contention, the second amended complaint adequately alleged a nexus between the Village's negligence in hiring and retaining Taback and the plaintiff's injuries (see id. at 162).

Accordingly, we affirm the order insofar as reviewed.

DUFFY, J.P., FORD, WARHIT and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

Litigation against a School District and its Board resulting from merger of two school districts deemed timely and may be maintained notwithstanding the fact that the succeeding entity came into existence as a result of the centralization of the two school districts

 

AL 557 Doe v Central Val. Cent. Sch. Dist.

2024 NY Slip Op 02652

Decided on May 10, 2024

Appellate Division, Fourth 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 on May 10, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.

970 CA 22-01908

[*1]AL 557 DOE, PLAINTIFF-RESPONDENT,

v

CENTRAL VALLEY CENTRAL SCHOOL DISTRICT, FORMERLY KNOWN AS ILION CENTRAL SCHOOL DISTRICT, CENTRAL VALLEY CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, FORMERLY KNOWN AS ILION CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANTS-APPELLANTS, AND EAST FRANKFORT SCHOOL, DEFENDANT.

GIRVIN & FERLAZZO, P.C., ALBANY (PATRICK J. FITZGERALD OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LAFAVE, WEIN AND FRAMENT, PLLC, ALBANY (JASON A. FRAMENT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

 

Appeal from an order of the Supreme Court, Herkimer County (Jeffrey A. Tait, J.), entered November 2, 2022. The order, insofar as appealed from, denied in part the motion of defendants to dismiss the amended complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendants Central Valley Central School District, formerly known as Ilion Central School District (Central Valley); Central Valley Central School District Board of Education, formerly known as Ilion Central School District Board of Education (Board); and East Frankfort School.

The parties on this appeal do not dispute that, in 2013, Ilion Central School District (Ilion) merged with Mohawk Central School District as a part of a centralization to become Central Valley Central School District. After defendants answered, they moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (7), contending, among other things, that they are not proper parties to the action because Central Valley did not exist until 2013, and the centralization that occurred in 2013 pursuant to Education Law §§ 1801 and 1802 (1) resulted in the dissolution of Ilion. They also contended that East Frankfort School ceased to exist in 1977 and, at all relevant times, was merely a part of Ilion and lacked a separate and distinct legal existence. Supreme Court denied the motion to dismiss except insofar as it sought to dismiss the amended complaint against East Frankfort School. Central Valley and the Board (collectively, appellants) now appeal, and we affirm.

We conclude, initially, that the action may be maintained against Central Valley and the Board, notwithstanding that Central Valley and the Board came into existence in 2013 as a result of the centralization. Education Law § 1804 provides for a centralized school district's responsibility to a component district's property and indebtedness. Pursuant to section 1804, a "central school district's board of education becomes the successor in interest of the trustees of school districts which merge into the centralized district" regardless of when the centralization occurred (Board of Educ. of Ramapo Cent. School Dist. v Greene , 112 AD2d 182, 184 [2d Dept 1985]). Moreover, the component district "shall continue to exist in law . . . for the purpose of providing for and paying all its just debts" (Education Law § 1518; see § 1804 [5] [a], [b]). We [*2]therefore conclude that Central Valley and the Board are proper parties to this action, but we note that any responsibilities resulting from this action will be left to the Board to address by taxing only the property owners of the component district from which those responsibilities arose (see generally Matter of Locust Val. Lib. v Board of Educ. of Cent. School Dist. No. 3 of Town of Oyster Bay , 54 Misc 2d 315, 323-324 [Sup Ct, Nassau County 1967]).

Contrary to appellants' contention, nothing in the plain language of the relevant statutes suggests that only fixed debts known to the component district at the time of centralization are "just debts." Plaintiff's causes of action accrued during Ilion Central's pre-centralization existence (cf. Barringer v Powell , 230 NY 37, 42 [1920]) and, pursuant to CPLR 214-g, the causes of action have been timely raised. Under the circumstances of this case, "just debts" are those debts, if any, "which shall turn out to be just" after all legal defenses have been exhausted (Martin v Gage , 9 NY 398, 401 [1853] [internal quotation marks omitted]).

Entered: May 10, 2024

Ann Dillon Flynn

Clerk of the Court

New York State's Comptroller releases audits of a number of municipalities

On May 120, 2024, New York State Comptroller Thomas P. DiNapoli announced the following municipal audits were issued.

Click on the text highlighted in COLOR to access the complete audit report posted on the Internet.

Town of Throop – Oversight of the Supervisor’s Cash Collections and Disbursements (Cayuga County)

The former supervisor did not properly collect and disburse cash assets in his custody, nor did the board ensure the supervisor properly performed these duties. The audit found $15,823 in missing funds. Auditors also determined that the former supervisor was inappropriately reimbursed $1,526 for expenditures on the town’s credit card and did not deposit five cash receipts totaling $22,464 intact, which could indicate cash was diverted. He routinely circumvented the approval process by manually writing checks using a typewriter and blank check stock and disbursed 106 payments totaling $782,518 prior to board approval. He also kept a town computer used to record cash transactions after leaving office. The computer was eventually returned; however, all data had been erased prior to its return. In January 2024, the former supervisor was arrested for stealing town funds and pleaded guilty to grand larceny in the fourth degree and official misconduct. The former supervisor was sentenced in February 2024. He paid full restitution of nearly $11,000 and was barred from seeking public office again.

Town of Throop – Highway Department  

The board and superintendent did not agree, in writing, to expenditures for highway repair and improvement as required. As a result, the board’s ability to sufficiently plan and budget for long-term road maintenance was diminished. They also did not enter into written shared service agreements for projects conducted with surrounding towns or maintain records to track the costs related to these services to ensure taxpayer equity. The superintendent did not maintain a complete and up-to-date equipment inventory. Therefore, the board may not be able to sufficiently plan and budget for the replacement of highway equipment and there is an increased risk of equipment loss and misuse. Additionally, the supervisor did not retain documentation related to scrap metal sales or account for sales totaling $1,277.

Town of Throop – Procurement  

The board did not always ensure that officials solicited competition for purchases subject to competitive bidding or for professional services. Competitive bidding requirements were not followed for 72 purchases totaling $887,952 of the 180 purchases reviewed and competition was not sought for professional services from seven providers totaling $595,996 – 99% of the $601,037 total services obtained from eight vendors.

Village of Horseheads – Claims Auditing and Disbursements (Chemung County)

Based on our sample of $1.1 million in claims and disbursements reviewed, village officials did not properly audit all claims or authorize disbursements. As a result, payments were made for unsupported, duplicate and improper claims. Village officials did not ensure an independent review of parks and recreation department claims occurred or ensure all claims contained adequate supporting documentation for 140 purchases totaling $44,547. They also did not ensure the village’s procurement policy was followed for three purchases totaling $19,179, or document whether claims were audited prior to funds being disbursed. Unnecessary telephone and internet services resulted in expenditures of $5,406. The State Comptroller’s office commenced a separate investigation into the possible misappropriation of village funds. In August 2023, the assistant clerk was arrested on charges of grand larceny and corrupting the government. In March 2024, the clerk pleaded guilty to attempted petit larceny and paid full restitution.

Village of Horseheads – Collections

Village officials did not properly record or deposit all collections in a timely manner. Officials did not reconcile departmental records with village records, utilize records that could verify deposits were made intact, complete timely bank reconciliations, or perform annual audits. Auditors determined code enforcement officers did not accurately record collections totaling $1,804 and cemetery department collections and code enforcement permit collections totaling $71,992 were deposited an average of 15 and 21 days late, respectively. In addition, code enforcement cash collections totaling $150 were not deposited until auditors identified the discrepancy. Lastly, the board did not comply with the state law requiring the board to annually audit the clerk-treasurer’s records and reports. The last audit was conducted in 2018.

City of Long Beach – Budget Review (Nassau County)

Auditors found that the significant revenue and expenditure projections in the 2024-25 proposed budget are reasonable. The proposed budget includes revenue estimates for metered water sales of $5.6 million and sewer rent estimates of $5 million based on rate changes which the city council has not yet authorized. Unless the rate changes are authorized and made in a timely manner, water and sewer fund budgets should be modified accordingly. The city’s proposed budget includes a tax levy of $60.1 million, which is within the limit established by law.

###

 

Employee challenged the New York City Department of Education's directive requiring him to submit to a medical examination pursuant to Education Law §2568

 Decisions of the New York State Commissioner of Education

Decision No. 18,401

(April 25, 2024)

Robin Roach, General Counsel District Council 37, AFSCME, AFL-CIO, attorneys for petitioner, Terry Buck, Esq., of counsel

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorney for respondent, Christopher G. Arko, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions related to a directive of the New York City Department of Education (“respondent” or “DOE”) that he submit to a medical examination pursuant to Education Law § 2568.  The appeal must be dismissed.

Petitioner has been employed by respondent since April 2018.  By letter dated May 1, 2023, respondent directed petitioner to report for a medical examination to determine his mental and/or physical capacity to perform his job duties pursuant to Education Law § 2568, citing nine reasons therefor.  Respondent reiterated this directive in an email dated June 27, 2023.  Petitioner submitted to the examination on July 12, 2023. 

On August 10, 2023, a human resources employee emailed petitioner and stated:  “[a]fter review of the medical documentation by the DOE doctor, restoration of health leave has been advised.”[1]

On August 22, 2023, respondent informed petitioner that the medical examination found him unfit for work; as such, he needed to apply for “restoration of health leave” effective August 10, 2023 if he sought to “maintain [his] healthcare coverage.”  Petitioner applied for this leave on August 30, 2023.  This appeal ensued.

Petitioner argues that respondent erred in requiring him to undergo a medical examination pursuant to Education Law § 2568.  He asserts that Civil Service Law § 72 applies to his circumstances, which only permits a medical examination where an “employee is unable to perform the duties of his or her position by reason of disability.”**  Petitioner also asserts that respondent violated Civil Service Law § 72 by failing to give him “[w]ritten notice of the facts” underlying the recommendation that he undergo the medical examination.[2]  He seeks declarations that respondent acted unlawfully, reinstatement to his position, and backpay.

Respondent contends that the appeal is untimely.  Respondent further asserts that the Commissioner lacks subject matter jurisdiction over the Civil Service Law issues in this appeal.  On the merits, respondent argues that it acted lawfully and had ample reason to require petitioner to submit to a medical examination.

Petitioner’s claims must be dismissed as untimely.  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 (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner commenced this appeal on September 27, 2023, more than 30 days after respondent’s two directives to appear for a medical examination and the examination itself.  I am not persuaded by petitioner’s claim that respondent’s actions relating to the medical examination constitute a continuing wrong (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]).  Accordingly, the portion of the appeal challenging respondent’s medical examination directive must be dismissed as untimely (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492).

Petitioner’s claims pursuant to Civil Service Law § 72 must also be dismissed as untimely.   Petitioner alleges that this statute entitled him to “[w]ritten notice of the facts providing the basis for the judgment” that he was “not fit to perform the duties of his ... position” (Civil Service Law § 72 [1]).  Assuming without deciding that this provision applies, the written notice of facts “shall be provided to [an] employee ... prior to the conduct of the medical examination” (id.).  Thus, petitioner knew that this information had not been provided on the day of his examination, which was more than two months prior to the commencement of this appeal.  As such, this claim must also be dismissed as untimely.

For the benefit of the parties, I note that petitioner has not proven the applicability of Civil Service Law § 72 to this appeal.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record demonstrates that respondent directed petitioner to undergo a medical examination pursuant to Education Law § 2568, which applies to “any person employed” by the City School District of the City of New York (see Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).  This provision, and not Civil Service Law § 72, applies under the circumstances because a more general statute generally must yield to a more specific statute (Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 AD3d 45, 48 [4th Dept 2019]; McKinney’s Cons Laws of NY, Book 1, Statutes § 397).  Indeed, a case involving one of respondent’s employees arising after enactment of Civil Service Law § 72 (1) considered and applied Education Law § 2568 without reference to the Civil Service Law (Newman v Board of Educ. of City Sch. Dist. of City of N.Y., 594 F2d 299 [2d Cir 1979]; see also Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

** Civil Service Law §72 applies to public employees in the Classified Service of the State as the employer or a political subdivision of the State [see Civil Service §40]. Educators are in the Unclassified Service [See Civil Service Law §35(g)] and §72 does not obtain with respect to such personnel [See Civil Service Law §6].

 

---

[1] While undefined in the record, it appears that “restoration of health” is a category of employee leave offered by respondent similar to Family and Medical Leave Act leave (Douyon v New York City Dept. of Educ., 665 Fed Appx 54, 56, n.1 [2d Cir 2016] [summary order])

[2] Petitioner also complains that he should have been placed on involuntary leave rather than directed to utilize “restoration of health leave.”  While I need not address this claim for the reasons described below, petitioner has not explained how he was aggrieved thereby (see Matter of Ingram v. Nassau Cnty., 85 AD3d 1175, 1177 [2d Dept 2011] [noting that involuntary leave under Civil Service Law § 72 is unpaid]).

 

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NYPPL e-books concerning laws, rules, regulations, policies, provisions in collective bargaining agreements and court and administrative decisions addressing the employment of individuals in the public service of New York State and its political subdivisions published by BookLocker, Inc.

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 A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

 
The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

 

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

N.B. New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.