Crediting a public employee's service for retirement purposes when the individual does not participate in the employer's time keeping system

New York State elected or appointed officials not participating in the employer's time keeping system are required to prepare a "Record of Work Activities" [ROA] recording the individual's work activities for a period of three consecutive months in order to receive service credit in the retirement system. Should the official fail to record, sign and submit an ROA "within the required time frame," crediting service for retirement purposes is suspended until such time as an ROA that complies with regulatory requirements is properly submitted.

In the instant situation the official [Petitioner] served as an elected City Council member and did not participate in the City's time keeping system. Petitioner, however, prepared and submitted a ROA reporting 60 hours of work over the first three months of 2012, or an average of 3.33 six-hour workdays per month. 

In July 2012, the City Council, including Petitioner, issued a resolution establishing Petitioner's days per month based on her ROA, and that figure was reported to, and ultimately certified by, the New York State and Local Retirement System [Retirement System] in August 2012. 

Petitioner's term as a City Council member ended in December 2015.

Subsequently Petitioner, then serving as the City's Comptroller, submitted a revised ROA to the Retirement System, increasing her reported hours for the same three-month period of service as an elected member of the City Council and requested that her retirement service credit be recalculated. Ultimately the Pension Integrity Bureau of the Retirement System [Bureau] advised Petitioner that her revised ROA for her service as a City Council member had been submitted "well outside of the windows to submit or amend an ROA, must be rejected". Petitioner appealed the Bureau's determination.

Following an evidentiary hearing, a Hearing Officer found that Petitioner was not entitled to a recalculation of her service credit as her revised ROA was both untimely and failed to encompass an alternative period of three consecutive months within the same calendar year as her initial ROA.

The Retirement System adopted the Hearing Officer's findings of fact and conclusions of law and denied Petitioner's application. Petitioner appealed the Retirement System's determination but the Appellate Division sustained the Retirement System's decision.

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

Failure to abide by a known policy of the employer can constitute disqualifying misconduct in determining an employee's eligibility for unemployment insurance benefits

An employee [Claimant] failed to provide negative COVID-19 test results at the beginning of her work week as required and was advised that her failure to do so in the future could result in her termination. Claimant was subsequently terminated after she failed to provide a negative COVID test result when she returned to work after a brief absence.

Claimant applied for but was subsequently administratively disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. An Administrative Law Judge sustained that administrative determination, which decision was affirmed by the Unemployment Insurance Appeal Board. This decision by the Board affirmed a second time after Claimant asked the Board reconsidered its earlier decision. 

Claimant appealed but the Appellate Division affirmed the Board's determination noting that "It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct" for the purpose of determining eligibility for unemployment insurance benefits".

Noting that Claimant was aware that she had to provide proof of a negative COVID-19 test result at the beginning of her work week, and that Claimant had testified that she had been tested for COVID-19 and had submitted the results to the employer via email or text message.

Claimant's program director testified and agreed that:

1. Claimant always maintained that she had submitted the required test results; 

2. Claimant's program director testified that most of those results were never received; and

3. It had been made clear to Claimant, first orally and eventually in a written warning, that she must provide the results upon the start of her work week or face discipline. 

Ultimately Claimant admitted that she had "failed to get tested and provide the results" on the day she returned to work in October 2021. 

The Appellate Division held that Claimant's admitted violation of the [employer's] policy in October 2021, and, when coupled with Claimant's history of prior warnings, constituted substantial evidence supporting the Board's determination that "[Claimant] wase was terminated for disqualifying misconduct" and thus was ineligible for unemployment insurance benefits.

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

A petitioner must satisfy all relevant adjective [procedural] laws, rules and regulations as a condition precedent to judicial or quasi-judicial review of the merits of the matter

In this action the United States Court of Appeals, Second Circuit, affirmed the judgement of a federal district court in three appeals brought by the Petitioner and being considered in tandem.

The federal district court had dismissed the Petitioner's claims for a variety of procedural errors or omissions including the Petitioner's failure to serve certain Defendants and Petitioner's failure to specify what relief Petitioner was seeking. 

The federal district court granted the State Defendants' motion to dismiss Petitioner's claims as the State, as a Defendant:

1. Was entitled to state sovereign immunity "as recognized by the Eleventh Amendment";

2. That certain named Defendants were entitled absolute legislative immunity;

3. That Petitioner had "otherwise failed to state a claim";

4. That certain of Petitioner's complaints were barred by res judicata and collateral estoppel; and 

5. That the district court lacked subject matter jurisdiction.

The Circuit Court noted although a "complaint must be construed liberally, with all factual allegations accepted as true, and all reasonable inferences drawn in the [Petitioner’s] favor", opined that a complaint’s '[f]actual allegations must be enough to raise a right to relief above the speculative level and contain more than a formulaic recitation of the elements of a cause of action,”

In addition, the Circuit Court observed "It has long been settled that state sovereign immunity precludes not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities" and “generally bars suits in federal court by private individuals against non-consenting states.

Noting that “a plaintiff may sue a state official acting in his official capacity— notwithstanding the Eleventh Amendment—for prospective injunctive relief from violations of federal law” the Circuit Court found the Petitioner "did not seek prospective injunctive claims against the State Defendants in their official capacities" and thus Plaintiff's claims are barred on state sovereign immunity grounds. 

As to Plaintiff's claims against the State Defendants in their individual capacities, the Circuit Court found that those claims "fail to state a cause of action". 

Click HERE to access the Circuit Court of Appeals' decision posted on the Internet.

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Judicial review of an administrative agency's decision made without an evidentiary hearing

The City of New York Reasonable Accommodation Appeals Panel [Panel] sustained a determination of the New York City Fire Department denying a New York City Firefighter's [Petitioner] request for a reasonable accommodation from a vaccine mandate based on his religion. Supreme Court had granted the petition, in effect, annulled the Panel's determination and directed the New York City Fire Department and the City of New York to reinstate the Petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay. Supreme Court also found that Petitioner was entitled to an award of attorneys' fees. The Fire Department and the City appealed the Supreme Court's ruling.

The Appellate Division reversed the Supreme Court's ruling on the law, with costs, and dismissed the proceeding, explaining that "In a CPLR article 78 proceeding to review a determination of an administrative agency made without an evidentiary hearing, the standard of review is whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion".

The Appellate Division said that Petitioner failed to demonstrate that the Panel's determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious and "It is not dispositive that the . . . Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in [this] proceeding".

The text of the Appellate Division's decision is set out below.

Matter of Hughes v New York City Fire Dept.

2025 NY Slip Op 07007

Decided on December 17, 2025

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 December 17, 2025 

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

VALERIE BRATHWAITE NELSON, J.P.
PAUL WOOTEN
BARRY E. WARHIT
LOURDES M. VENTURA, JJ.

2024-01225

(Index No. 532524/22)

[*1]In the Matter of Christopher Hughes, respondent,

v

New York City Fire Department, et al., appellants.

Muriel Goode-Trufant, Corporation Counsel, New York, NY (Richard Dearing, Jesse A. Townsend, Geoffrey E. Curfman, and Ingrid R. Gustafson of counsel), for appellants.

Christina Martinez, Staten Island, NY, for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the City of New York Reasonable Accommodation Appeals Panel dated July 11, 2022, which upheld a determination of the New York City Fire Department dated December 8, 2021, denying the petitioner's request for a reasonable accommodation from a vaccine mandate based on his religion, the New York City Fire Department and the City of New York appeal from a judgment of the Supreme Court, Kings County (Joy F. Campanelli, J), dated October 18, 2023. The judgment granted the petition, in effect, annulled the determination dated July 11, 2022, directed the New York City Fire Department and the City of New York to reinstate the petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay, and directed that the petitioner was entitled to an award of attorneys' fees.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The petitioner was a firefighter with the New York City Fire Department (hereinafter the FDNY). By order dated October 20, 2021, the New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all City employees, among others, to submit proof that they had received at least one dose of a COVID-19 vaccine by October 29, 2021 (hereinafter the vaccine mandate). On November 1, 2021, the petitioner was placed on leave, without pay, since he failed to submit proof of vaccination or request a reasonable accommodation by the specified deadline. On November 5, 2021, the petitioner submitted a request to the FDNY's Equal Employment Opportunity Office for a reasonable accommodation from the vaccine mandate based on his religion, which was denied on December 8, 2021. The petitioner then appealed to the City of New York Reasonable Accommodation Appeals Panel (hereinafter the Panel). In a determination dated July 11, 2022, the Panel upheld the FDNY's denial of the petitioner's request for a reasonable accommodation. The FDNY then terminated the petitioner's employment on July 27, 2022.

In November 2022, the petitioner commenced this proceeding pursuant to CPLR article 78 against the FDNY and the City (hereinafter together the appellants) to annul the Panel's determination, to be reinstated to his position, for back pay, and for an award of attorneys' fees. In [*2]a judgment dated October 18, 2023, the Supreme Court granted the petition, in effect, annulled the Panel's determination, directed the appellants to reinstate the petitioner to his position as a firefighter with a reasonable accommodation from the vaccine mandate and back pay, and directed that the petitioner was entitled to an award of attorneys' fees. This appeal ensued.

"In a CPLR article 78 proceeding to review a determination of an administrative agency made without an evidentiary hearing, the standard of review is whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Matter of Achille v Laveman, 224 AD3d 744, 746 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d 184, 191).

Here, the petitioner failed to demonstrate that the Panel's determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious (see Matter of Smith v New York City Fire Dept., 239 AD3d 870; Matter of Marstellar v City of New York, 217 AD3d 543, 545). "It is not dispositive that the . . . Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in [this] proceeding" (Matter of Lee v City of New York, 221 AD3d 505, 506; see Matter of Marstellar v City of New York, 217 AD3d at 544).

Further, pursuant to the New York City Human Rights Law (NYCHRL), it is "an unlawful discriminatory practice" for an employer "to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation" for, among other possibilities, "religious needs" (Administrative Code of the City of NY § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants' process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue (see Matter of Smith v New York City Fire Dept., 239 AD3d at 872; Matter of Marstellar v City of New York, 217 AD3d at 545). The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. Moreover, the record shows that there were multiple communications between the petitioner, the FDNY, and the Panel regarding the petitioner's request. The petitioner "failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individual dialogue" (Matter of Smith v New York City Fire Dept., 239 AD3d at 872).

Since the Panel's determination was not arbitrary and capricious or affected by an error of law, there is no basis to award back pay or court costs as incidental damages (see CPLR 7806; Matter of Rysiejko v City of New York, 232 AD3d 432, 433).

Furthermore, the Supreme Court erred in directing that the petitioner was entitled to an award of attorneys' fees, which was not authorized by agreement between the parties, by statute, or by court rule (see Matter of Smith v New York City Fire Dept., 239 AD3d at 873; Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772, 774).

The petitioner's remaining contentions are either without merit or improperly raised for the first time on appeal.

Accordingly, the Supreme Court erred, inter alia, in granting the petition and, in effect, annulling the Panel's determination, and the judgment must be reversed.

BRATHWAITE NELSON, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court