Plaintiff's failure to raise any argument regarding an issue deemed to be an abandonment of plaintiff's claims concerning the issue

Supreme Court granted defendants' motions to dismiss the plaintiff's amended complaint. Plaintiff appealed. The Appellate Division unanimously affirmed the Supreme Court's decision in a terse opinion, which is set out below. 

Anonymous v Anonymous

2024 NY Slip Op 05303

Decided on October 29, 2024

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: October 29, 2024
Before: Singh, J.P., Pitt-Burke, Higgitt, Rosado, O'Neill Levy, JJ.

Index No. 101183/20 Appeal No. 2907 Case No. 2023-03150

[*1]Anonymous, Plaintiff-Appellant,

v

Anonymous et al., Defendants-Respondents.

Anonymous, appellant pro se.

Walden Macht & Haran LLP, New York (Daniel Chirlin of counsel), for the Northeastern Team respondent.

Guha PLLC, New York (Kelly Mcgee of counsel), for the Union respondent.

Kobre & Kim LLP, New York (Steven G. Kobre of counsel), for the League respondent.

Lewis Baach Kaufman Middlesmiss PLLC, New York (Elizabeth Velez of counsel), for the Southern Team respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about May 10, 2023, which granted defendants' motions to dismiss the amended complaint, unanimously affirmed, without costs.

By failing to raise any argument regarding the nonplayer defendants, plaintiff abandoned all her claims except those for negligent infliction of emotional distress and aiding and abetting retaliation (see Weis v Rheem, Bell & Freeman, LLP, 217 AD3d 538, 539 [1st Dept 2023]).

Plaintiff failed to show she was an intended third-party beneficiary of the parties' collective bargaining agreement (CBA), as others could enforce its provisions, and the language did not support an intention to provide her with any rights (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710 [2018]). For that reason, plaintiff failed to identify a source of duty from defendants that would support her negligent infliction claim (Sacino v Warwick Val. Cent. Sch. Dist., 138 AD3d 717, 719 [2d Dept 2016]). That claim was also properly dismissed because no claim for emotional harm will lie for breach of a duty based on contract (Wehringer v Standard Sec. Life Ins. Co. of N.Y., 57 NY2d 757, 759 [1982]).

Furthermore, since plaintiff was not a beneficiary of the CBA, she could not sue for a breach of its anti-retaliation provisions. Moreover, even if she could, she failed to identify any conduct of defendants to "aid and abet" the breach, other than inaction, which is insufficient as a matter of law (Land v Forgione, 177 AD3d 862, 864 [2d Dept 2019]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: October 29, 2024

Employee terminated after being found guilty of misappropriation of employer's equipment for personal use and other charges of misconduct

Faye Lewis, a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] recommended a sanitation worker [Respondent] found guilty of misusing or misappropriating a New York City Department of Sanitation's collection trucks for his personal use, used racist and profane language toward police officers, and engaged in other act of misconduct be terminated from his position.*

Respondent was found guilty of using the Department’s sanitation trucks to collect furniture and refuse outside his house.

In a separate incident, after being arrested for driving while intoxicated, Respondent directed multiple racial slurs and obscenities to police officers and a Department supervisor. Although Respondent was off-duty at the time of his arrest, the ALJ determined that Respondent may be disciplined for the misconduct because there is a sufficient nexus between Respondent’s comments toward the Department supervisor and his position as a city employee, as well as Respondent’s comments to the police officers and Respondent public-facing job as a sanitation worker. 

The ALJ further found that Respondent’s intoxication was not a defense, noting that while intoxication may have been a contributing factor, Respondent did not establish that it was the sole cause for his multiple racist statements.

Respondent also failed to report another arrest to the Department and inappropriately took sick leave for the time he was in police custody. 

The ALJ also sustained charges of Respondent's being absent without from work without permission and committing sick leave violations.

Taking into account Respondent’s substantial disciplinary history, the ALJ determined that termination was the only appropriate penalty to be imposed on Respondent and so recommended to the appointing authority. Commissioner Jessica S. Tisch accepted and implemented Judge Lewis' recommendation.

* In the words of the Administrative Law Judge: "I find that respondent: engaged in the unauthorized use of a Department collection truck on the morning of January 3, 2020, and later lied about it to FIAT [The Department of Sanitation's Field Investigations Audit Team]; misappropriated a Department collection truck on the evening of January 3, 2020, and later failed to cooperate with an official investigation about the misappropriation; used derogatory language toward police officers and a Department supervisor; violated sick leave rules on three occasions; and was AWOL three times. I recommend that respondent’s employment be terminated."

Click HERE to access Judge Lewis' decision posted on the Internet.

Candidate's application for promotion denied under color of the agency's policy of denying promotion while disciplinary charges are pending against the applicant

The New York Metropolitan Transportation Authority [MTA], denied Plaintiff's applications for promotion to the rank of Lieutenant by personnel orders dated October 6, 2021, and October 26, 2022.

Supreme Court dismissed the CPLR Article 78 proceeding initiated by Plaintiff challenging MTA's denial of his applications for promotion and Plaintiff appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

With respect to MTA's order denying Plaintiff's application seeking promotion dated October 6, 2021, the Appellate Division observed that Plaintiff's Article 78 petition was filed "well over four months after the October 6, 2021 personnel order" was issued and is "therefore time-barred as to that order".

Turning to the October 26, 2022 personnel order denying Plaintiff's application for promotion, the Appellate Division noted that the Metropolitan Transportation Authority Police Department [MTAPD]  had "demonstrated a rational basis for its decision not to promote", i.e., the fact that disciplinary charges were then pending against Plaintiff. Noting that "It is undisputed that disciplinary charges against [Petitioner] were pending at the time of the October 26, 2022 personnel order denying him a promotion", MTAPD's decision was consistent with the agency's "practice," according to the affidavit of its assistant chief in the Internal Affairs Bureau, "to not promote MTAPD members to the rank of lieutenant (or higher) while they have any disciplinary action pending."

Further, opined the Appellate Division, the fact that Petitioner "was ultimately cleared of the [disciplinary] charges does not make the [October 26, 2022] decision irrational", citing Kercado v Ward, 166 AD2d 280.

Dismissing Plaintiff's appeal, the Appellate Division observed "Petitioner's assertions that he was treated differently from other candidates, and that the MTAPD did not adhere to the collective bargaining agreement's deadlines for resolving disciplinary matters, are unsupported by the record".

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

Where a claimant for Workers' Compensation seeks benefits for both physical and psychological injuries both are compensable if claimant establishes the causal connection between the accident and the alleged injuries

Claimant for Workers' Compensation Benefits, a social worker with child protective services [CPS], was conducting a home visit when the family's dog charged at her, struck her in the chest and knocked her into the side of the house. Claimant, who had been bitten and physically scarred from a dog attack in her youth, filed a claim for workers' compensation benefits alleging that she sustained an injury to her chest, was severely traumatized and had not been able to sleep.

CPS, a self-insured employer, accepted the portion of the claim alleging a traumatic injury to the chest. A Workers' Compensation Law Judge subsequently found prima facie medical evidence for post-traumatic stress disorder [PTSD], anxiety and acute stress disorder but noted that claimant had not proffered prima facie medical evidence for a physical injury to her chest. The Workers' Compensation Law Judge, among other things, established the claim for work-related psychological injuries consisting of PTSD, anxiety and acute stress disorder, set claimant's average weekly wage and awarded indemnity benefits. CPS employer sought administrative review. 

The Workers' Compensation Board [Board] confirmed that portion of the claim alleging a chest injury as the CPS accepted the claim to that extent, but disallowed the claim for work-related psychological injuries involving PTSD, anxiety and acute stress disorder. The Board reasoned that Claimant experiencing a dog jumping on her while performing a home visit did not constitute psychological stress greater than the stress experienced by similarly situated CPS workers. Claimant appealed.

Claimant, contending the Board applied an incorrect standard to her claim alleging direct psychological injuries resulting from physical impact by requiring her to demonstrate that she sustained psychological stress greater than similarly situated CPS workers, appealed the Board's determination. 

The Appellate Division agreed with Claimant. "Generally, where a psychological injury is alleged to be caused by work-related stress ... it has long been recognized that where a workplace accident is found to have occurred as a result of a physical impact/trauma, resulting physical and psychological injuries are both compensable, so long as the claimant establishes the causal connection between the accident and the alleged injuries."

Here, said the court, the Board established a claim for a physical injury to Claimant's chest based upon the dog jumping on her chest and knocking her into the side of the house. As Claimant alleged that her psychological injuries resulted from that same physical impact that the Board found amounted to a workplace accident, the Appellate Division opined the Board erred by requiring that she establish a separate workplace accident comprised of work-related stress to recover for her alleged direct psychological injuries. 

In the words of the court: "upon finding that a workplace accident had been established, the Board's inquiry was limited to whether [Claimant] showed, through competent medical evidence, that there was a causal relation between the accident and the injury. The Appellate Division reversed the Board's ruling and remitted the matter to the Board "to examine whether a causal connection was established between the workplace accident and the alleged psychological injuries consisting of PTSD, anxiety and acute stress disorder."

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

Proceeding with a disciplinary hearing notwithstanding the employee's failure to appear at the hearing

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Seon Jeong Lee recommended termination of employment for a community coordinator [Respondent] who was excessively absent, attempted to engage a client in an inappropriate personal relationship, failed to appear for a mandatory interview, and submitted false documents.

Respondent did not appear at disciplinary hearing and following the ALJ granting Respondent's attorney’s motion to withdraw as counsel, the disciplinary hearing proceeded notwithstanding the Respondent’s absence.*

The ALJ found that Respondent was absent for approximately 148 work days over a period of 11 months. Respondent was also found to have sent an inappropriate and unauthorized text message to a shelter client in an attempt to engage the client in a personal relationship, and when the employer attempted to investigate the incident, Respondent ignored multiple notices to appear for a mandatory interview.

Judge Lee, noting that Respondent was given multiple opportunities to refute the charges filed against him and, or, provide explanations in his defense, but Plaintiff  ignored the employer’s repeated inquiries; failed to appear at disciplinary hearing; and had expressed no remorse for Respodent's proven misconduct, recommended dismissal "as the only appropriate penalty." 

In the words of the ALJ: "This tribunal typically applies the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct. See Health & Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. Ford, OATH Index No. 2383/09 at 11 (July 10, 2009). But certain acts of misconduct are so egregious that termination of employment is the only appropriate penalty. Here, the proven misconduct against [Respondent] specifically involving sexually predatory behavior toward a vulnerable client and submission of fraudulent documents warrants termination, despite [Respondent’s] lack of any prior discipline".

* New York courts have held that a disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

Click HERE to access Judge Lee's findings and recommendation to Commissioner Molly Wasow Park posted on the Internet.