Concerning remanding the results of an administrative hearing held by an administrative tribunal to the tribunal

Citing Matter of Peckham v Calogero, 54 AD3d 27, affd 12 NY3d 424, the Appellate Division noted that remanding the results of an administrative hearing to the agency which made the determination is typically made by a court in the event "the agency has made the type of substantial error that constitutes an irregularity in vital matters".

In the instant appeal the Appellate Division opined that such a remand to the New York City Office of Administrative Trials and Hearings [OATH] "would not have been appropriate".

The Appellate Division explained that "Contrary to [Petitioner's] assertion, the reviewer who issued the disqualification letter for [Petitioner's] first complaint did not need to testify at the hearing" as the record shows that Petitioner received the disqualification letter because his video and photographic evidence did not support his allegation that the subject vehicle was idling.

In contrast, the Appellate Division said the reviewer who testified concerning the hearing which resulted in disqualification letters tied to the Petitioner's second, third, and fourth complaints involving Petitioner's alleged violation of Administrative Code §24-112 (a) stemmed from repeatedly submitting the same evidence in support of the appeals of those three complaints. 

Holding that Supreme Court properly transferred the case to the Appellate Division pursuant to under CPLR 7804(g) because Petitioner raised an issue of substantial evidence by challenging factual findings made by the Hearing Officer, the court found that OATH's determination was supported by substantial evidence as the record shows that Petitioner received a disqualification letter because his video and photographic evidence did not support his allegation that the subject vehicle was idling. 

As these three additional complaints set out "nearly identical allegations, photographs, and videos, changing only the address of where the violation occurred and one letter in the vehicle's license plate," the Appellate Division opined that "[it] is reasonable to infer that [Petitioner] was attempting to mislead respondent New York City Department of Environmental Protection and circumvent his previous disqualifications". 

The Appellate Division then opined that "This deception established a violation under Administrative Code §24-112(a), which prohibits persons from "knowingly mak[ing] a false or misleading statement" to the department". 

Further, the Court's decision states "Petitioner's claim of agency bias is 'unavailing in the absence of any proof that the outcome of the proceeding flowed from the alleged bias'".

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

Retired employee held not entitled to certain lump sum payments set forth in a successor collective bargaining agreement

The County of Rockland [and others "Defendant"] and the Rockland Association of Management Union, AFT Local 4404 [RAM] executed a collective bargaining agreement that covered the period from January 1, 2014, to July 31, 2016 [2014 CBA].

On September 30, 2020, the Defendant and RAM executed a collective bargaining agreement that covered the period from August 1, 2016, to December 31, 2021[2020 CBA] which, as did the 2014 CBA, provided that "[whenever]" the parties agreed that "wage increases shall be paid retroactively," retired employees would be eligible for wage adjustments for any applicable continuous period of active service. 

The 2020 CBA provided that employees who "(1) had worked in 2017 and 2018 and (2) remained active on the County's payroll on the date the County executive approved the successor CBA would receive 'lump sum' payments of $800 and $1500, respectively".

The Plaintiff in the instant action had worked for the County from March 26, 1986, until her retirement on August 7, 2018, brought this act seeking to :

1. Recover damages for breach of contract; and

2. Under color of 42 USC §1983, alleged the "deprivation of a vested property interest without due process", claiming entitlement to the two lump sum payments set forth in the 2020 CBA. 

The Defendant moved, among other things pursuant to CPLR 3211, to dismiss Plaintiff's first and second causes of action insofar as asserted against the County, the County Executive, and the County Legislature. Supreme Court granted the motion; Plaintiff appealed the Supreme Court's judgment.

In its decision, the Appellate Division noted that:

1. "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law; 

2. "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as . . . deeds, contracts, and any other papers, the contents of which are essentially undeniable. Conversely, letters, emails, and . . . affidavits . . . do not meet the requirements for documentary evidence";  

3. On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"; and 

4. Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed".

Opining that County conclusively established that the Plaintiff was not entitled to the two lump sum payments set forth in the successor CBA, the Appellate Division said  that "By the terms of Article VIII(3)(a)(1) and (2) of the successor CBA, the [Plaintiff] was ineligible for the lump sum payments because she had retired before the successor CBA had been approved by the County executive".

Further, Appellate Division commented that the Plaintiff's entitlement to retroactive wage increases only vested upon the agreement of the County and RAM to enact such increases and "the 2020 CBA expressly provided that the lump sum payments 'shall not increase the salary rate of the employees receiving [them] or the salary schedule'".

The Appellate Division then observed that Supreme Court, citing Domitz v City of Long Beach, 187 AD3d 853, quoting Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 32, "properly declined" to consider [Plaintiff's] allegation that it was the past practice of the County to pay retired employees similarly situated to the plaintiff pursuant to prior collective bargaining agreements since "'past practice, like any other form of parole evidence, . . . cannot be used to create a contractual right independent of some express source in the underlying agreement", concluding that Supreme Court properly granted dismissal of the first cause of action, alleging breach of contract, insofar as asserted against the County, the Executive, and the Legislature.

The Supreme Court, said the Appellate Division, "also properly granted dismissal of the second cause of action, alleging a violation of 42 USC §1983, insofar as asserted against the County, the Executive, and the Legislature pursuant to CPLR 3211(a)(7)". In the words of the Appellate Division, "The benefit allegedly denied to the [Plaintiff] 'does not constitute the kind of deprivation that may give rise to a due process claim'".

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

Claimant for unemployment insurance benefits challenged the Unemployment Insurance Appeal Board's denying her application to reopen a prior decision

Claimant, who simultaneously worked as a full-time employee for one employer and as a part-time employee for another employer, filed a claim for unemployment insurance benefits after losing her part-time employment. 

Claimant received, among other things, federal unemployment benefits. The Department of Labor, however, subsequently determined that Claimant was ineligible to receive such unemployment benefits as "she was not totally unemployed" and charged her with recoverable overpayments.

Claimant requested a hearing. The Administrative Law Judge [ALJ] determined that the Department lacked jurisdiction to review her benefit claim and issue the initial determinations more than a year after Claimant received benefits, finding that the evidence failed to establish that she made willful misrepresentations to obtain benefits, and instead revealed that she had been mistaken and had taken steps to address the issue". 

The Department appealed the ALJ's ruling and the Unemployment Insurance Appeal Board reversed the ALJ's determination and reinstated the Department's initial determinations. Claimant then filed an application seeking to reopen the matter pursuant to Labor Law §534, which the Appeal Board denied. Claimant next filed an appeal of the Board's denial of her "application to reopen" with the Appellate Division.

The Appellate Division:

1. Decided that the merits of the Board's original determination were not before it "given that [Claimant's] application to reopen was not made within the 30 days during which the original determination could be appealed"; and

2. Citing Matter of Amer [Commissioner of Labor], 234 AD3d 1233, explained that "a decision as to whether to grant such an application is within the sound discretion of the Board and, absent a showing that it abused that discretion, its decision will not be disturbed".

Noting that no new material or arguments that would affect the Board's decision was presented in Claimant's application to reopen the Board's earlier ruling, the Appellate Division concluded that it found no abuse of discretion in the Board's denial of Claimant's application to reopen the matter.

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

 

Scammers are sending phishing text messages to taxpayers about income tax refunds. The New York State Tax Department does not use text messages, email, or social media to request personal tax information.

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