Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment

2013 NY Slip Op 08499, Appellate Division, Third Department

The girl friend [GF] of a town police officer [Officer] went to a pub with her girlfriend to purchase beer. GF was involved in a confrontation with the plaintiff that the Appellate Division said the substance of which is subject to considerable dispute. GF and her girlfriend left the bar and returned to Officer's residence. After listening to GF's version of what allegedly transpired at the pub, Officer, accompanied by GF, drove to the pub in GF's car and confronted Plaintiff, in the course of which confrontation Plaintiff suffered various injuries, including a fractured arm and a broken wrist.*

Plaintiff sued Officer and the Town contending, among other things, that the Town was vicariously liable for Officer's actions. The Town moved for summary judgment to dismiss the complaint against it. Supreme Court, finding that Officer was not acting within the scope of his employment at the time of the incident but, rather, was at the pub "as a ticked off boyfriend upset about conduct directed at his girlfriend by Plaintiff," granted the Town’s motion.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that "The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Accordingly, "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment."

Citing Campos v City of New York, 32 AD3 287, leave to appeal denied 8 NY3d 816; appeal dismissed 9 NY3d 593, the Appellate Division said that "[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest."

Officer, said the court, by his own admission, was not on duty when he went to the pub and said to Plaintiff "I'm not here as a cop" and when pressed as to his reasons for confronting Plaintiff, Officer acknowledged that he only wanted "to see what [Plaintiff's] side of . . . the story was," and admitted that he was not there to "officially" investigate the alleged assault.

Such proof, said the Appellate Division was, in its our view, was more than sufficient to discharge the Town's initial burden on its motion for summary judgment.

As Plaintiff failed to present sufficient admissible proof to raise a question of fact as to whether Officer was acting within the scope of his employment at the time of the altercation with him, the court said that the Town was entitled to summary judgment dismissing his vicarious liability claims against it.

Addressing a collateral issue, Plaintiff allegation that the Town negligently hired, trained and/or supervised Officer, the Appellate Division said that "To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."

Although Officer had been convicted of assault in the third degree years earlier, one of the Town's representatives testified that the Town was aware of and discussed this incident with Officer prior to hiring him and that they thereafter did not receive any complaints regarding Officer's behavior. The Appellate Division ruled that “Under these circumstances, Officer's prior conviction — standing alone — was insufficient to put the Town on notice that he ‘was inclined toward conduct such as that which allegedly caused . . . Plaintiff's injuries.’"

* Disciplinary charges subsequently were lodged against Officer, who ultimately resigned from his position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08499.htm
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Free Webinar by the IRS office of Federal, State and Local Governments

Free Webinar by the IRS Office of Federal, State and Local Governments

Source: Internal Revenue Service FSLG Newsletter

The Internal Revenue Service will hold a Webinar addressing the reporting requirements and taxation of certain employee benefits on February 6, 2014 at 2 p.m. Eastern Time.

The topics to be covered include:

■ Reporting requirements for accountable plans vs. non-accountable plans

■ Whether allowances are taxable fringe benefits*

■ Reporting requirements for group term life insurance

■ “Day meals” – what are they and if they are taxable

■ When stipends, bonuses, and gift cards are taxable fringe benefits

To register for this Webinar: Click here. You will use the same link to attend the event.

* For example, the City of Schenectady reports that it is currently being audited by the Internal Revenue Service. City Finance Commissioner Deborah DeGenova indicated that among the items being questioned is the City’s annual $125 boot allowance for new workboots provided to certain workers and its “W-9 System” used for reporting payments made to independent contractors to the IRS.
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Hearing officer free to credit the testimony of one medical expert over another’s when there are conflicting medical opinions in evidence

Hearing officer free to credit the testimony of one medical expert over another’s when there are conflicting medical opinions in evidence
2013 NY Slip Op 07040, Appellate Division, Second Department

An employee of the City of Mount Vernon Fire Department [Employee], alleging that the had sustained an on-the-job injury, was provided with benefits pursuant to General Municipal Law §207-a(1) based on this incident. §207-a(1) provides for the payment of salary, medical and hospital expenses of firefighters suffering injuries or illness incurred in performance of duties.

Employee subsequently applied for supplemental income benefits pursuant to General Municipal Law §207-a(2). Essentially §207-a(2) provides the payment of the difference between the amounts of his or her retirement allowance and the amount of his regular salary or wages, including negotiated salary increases, if any, until his or her mandatory service retirement age to a firefighter who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his or her if he or she is granted an accidental disability retirement allowance or a or similar accidental disability benefit provided by the pension fund of which he is a member;

The City of Mount Vernon [Mount Vernon] denied the application. Employee appealed the denial of his application and requested a hearing.

The hearing officer credited the testimony of the City's medical expert, who opined that Employee was not fully disabled because the expert believed Employee could still perform restricted duties and The City denied Employee any benefits available pursuant to General Municipal Law §207-a(2).

The Appellate Division dismissed Employee’s challenge to Mt. Vernon’s decision, explaining that judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Here, said the court. the hearing officer's determination is supported by substantial evidence.

The court noted that the testimony of Mount Vernon’s medical expert was consistent and supported by the medical evidence, and that the hearing officer was free to credit the testimony and report of that expert over any conflicting doctors' opinions contained in the Employee's medical records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07040.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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An appointing authority must comply with the procedures set out in Civil Service Law §72

An appointing authority must comply with the procedures set out in Civil Service Law §72

2014 NY Slip Op 24005, Supreme Court, New York County, Judge Michael D. Stallman

In this “combined Article 78 and Article 75 proceeding,” State Supreme Court Judge Michael D. Stallman considered two issues: [1] action taken under Civil Service Law §72.5 for placement of tenured civil service worker, Employee, on involuntary leave for medical disability and [2] a parallel grievance procedure under a collective bargaining agreement (CBA) between the State of New York and the Public Employees Federation, Employee's union, challenging efforts to terminate Employee from his position.

Employee was placed on involuntary leave with pay under color of Civil Service Law §72.5 by his employer [Agency] and while on such leave, was served with disciplinary charges in accordance with the disciplinary procedure set out in the CBA seeking Employee’s dismissal. Employee placed on leave without pay in connection with the disciplinary action.

Addressing the disciplinary charges served on Employee, Judge Stallman said that the matter was submitted to arbitration in accordance with the CBA’s disciplinary grievance procedure. The arbitrator sustained Employee's grievance in part and directed that he be reinstated to his position. After receiving the arbitration award Employee was notified that “he was still on leave pursuant to Civil Service Law §72.5 and that he would not be reinstated until he did certain things.”

Employee than petitioned the court to [1] confirm the arbitration award, the Article 75 proceeding; and [2] annul the determination placing him on involuntary leave pursuant to CSL §72.5, the Article 78 proceeding. As his remedy, Employee asked the court to”

(1)   Direct his reinstatement to his former position and pay him back pay and benefits; and

(2)   Declare that his continuation of leave is arbitrary and capricious and in violation of Civil Service Law §72.

Addressing the disciplinary action taken against Employee, Judge Stallman said that the Arbitrator, Gayle A. Gavin, issued her Opinion and Award, stating, "[t]he grievant is denied in part and sustained in part. The charges are proved. The penalty is modified to a time-served suspension,” and directed that Agency reinstate Employee to his position “forthwith."

Rejecting Agency’s arguments that the award should be vacated because the arbitrator's determination was irrational since the arbitrator found that all four charges had been proven, “two of which also purportedly constituted crimes under state law," and because of Employee's prior disciplinary history, “the only rational penalty is petitioner's dismissal.”

The court confirmed the arbitrator’s award* noting that the arbitrator's determination to reduce Employee's penalty to a time-served suspension “was not totally irrational,” explaining that the arbitrator analyzed and evaluated all of the relevant evidence. In setting the penalty to be imposed, the arbitrator considered the fact that in his 24 years of service Employee had received only two written counseling memoranda prior to the filing of the disciplinary charges underlying this appeal, concluding that terminating Employee's would be an excessive penalty given a "good disciplinary record for a long-term employee." However, said Judge Stallman, the arbitrator also noted that, "while dismissal in this instance is viewed as excessive, any future similar misconduct will not be treated as leniently."

Turning to Employee’s §72 appeal, the court said that Agency sent Employee a letter with the heading "Section 72 Employee Notification" notifying him, among other things, that he was to be examined by two health professionals. The letter stated, in part, that "This letter is to advise you that [Agency] has requested that you be examined by Employee Health Services to determine your fitness to perform the full duties of your position ….”

The New York State Employee Health Services subsequently advised Agency that that a physician and a psychologist had examined Employee and that based on those evaluations, [Employee] "is fit to perform the essential duties of [of his position]..However, at this time, [the psychologist] is unable to make a determination whether [Employee] represents a danger in the work place as he was evasive during psychological testing and as there was insufficient data regarding the intent of his extensive use of the internet while at work."

Agency then wrote to Employee stating that it had received Arbitrator Gavin's decision indicating that a modified penalty of a time-served suspension and reinstatement to the workplace as a result of disciplinary charges and that “this letter is to advise you that you are still on leave in accordance with Civil Service Law, Section 72.5 as a result of medical documentation provided by Employee Health Services (EHS) on … which indicated an inability to determine whether you present a danger to the workplace."

This letter also stated that “You will remain on such leave until you request a re-evaluation by EHS and [are] subsequently deemed competent to perform your duties in a manner that is safe for yourself, co-workers and the public.”

Judge Stallman Civil Service Law noted that §72(1) sets forth the mandatory procedure. The sequence of steps for proceeding under Civil Service Law § 72 (1), relevant to this case, are:

1. The employer must provide written notice of the facts providing the basis for the proposed leave and judgment that the employee is not fit to perform the duties of his position, the date on which the leave is to commence, and the employee's rights under the procedure served by first class, registered, or certified mail return receipt requested, upon the employee;

2. A medical examination conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction to determine whether employee is fit to perform the duties of his position;

3. The employee has ten working days from the service of the notice to object to the imposition of the proposed leave of absence and request a hearing filed by the employee personally or by first class or registered mail, return receipt requested; and

4. The employee shall be entitled to draw all accumulated, unused sick leave, vacation, over time and other time allowances standing to his credit while on leave.

Noting that "Because of the significant due process implications of [§72], strict compliance with its procedures is required" Judge Stallman said Agency did not comply with the statutory scheme of §72 but rather “placed [Employee] on an involuntary leave of absence with pay instead of a leave of absence without pay, as required under Civil Service Law §72(5)."**

The following omission or errors were noted by Judge Stallman:

1. Agency’s notice that placed Employee on leave does not state the reasons why he was being placed on involuntary leave nor cites Civil Service Law §72(5) as its statutory authority for so doing;

2. The notice fails state "the facts providing the basis for placing Employee on §72(5) leave,” i.e., it neither recites its basis for itse judgment that Employee "is not fit to perform the duties of his position" nor does it contains any reference to Employee’s "dangerousness" or "fitness to perform duties;" and

3. The Agency’s communication did not provide proper notice as required by statute as the letter neither state any reasons nor refer to any determination that Employer's presence on the job would either represent a potential danger to persons or property, or would severely interfere with Agency operations. The court said that “Even if providing a copy of the statute may have satisfied [Agency’s] obligation to inform [Employer] of his statutory rights, Agency still failed to meet the other statutory requirements” and simply providing a copy of the statute did not satisfy the notice requirements of the statute.

Holding that "Due to [Agency’s] failure to comply with the notice requirements of the statute, [Employee's] purported placement on a leave of absence is a nullity." The fact that Agency may have had a rational basis in fact for taking the acts it took is not a defense to the issue of whether or not Agency followed the procedures provided by Civil Service Law §72.

Finding that Employee’s the current leave without pay violative of lawful procedure, Judge Stallman annulled the Agency’s actions and remanded the matter to it “for appropriate action pursuant to Civil Service Law §72.” ***

Judge Stallman then opined that “[Agency] has shown a rational basis for its belief that the [Employee] may be a danger in the work place. Thus, [Agency] need not permit [Employee] to return to the workplace, and Agency is free immediately to begin the Civil Service §72 process anew.”

Judge Stallman also observed  “It may seem anomalous that someone in [Employee’s] position, who has not fully cooperated with the psychological evaluation, can be restored to the payroll even though he is not performing his job duties. The anomaly results from [Agency’s] choice — permitted by [CBA] and statute — to have brought the arbitration in parallel with the purported section 72 involuntary leave proceeding. Each is governed by a different legal framework; each has different standards and procedures. Nevertheless, [Agency has its] remedy: [it] can follow the mandated statutory procedures required by Civil Service Law §72.

* Judge Stallman said "Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since the courts should not assume the role of overseers to mold the award to conform to their sense of justice.' A court may only disturb the award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

** The court said “Whether the leave with pay was a mistake or an exercise of compassion or both, need not be determined here.”

*** Employee is entitled to back pay to the extent that he was not paid during any period of absence allegedly pursuant to §72.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_24005.htm
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Governor Cuomo announces administration appointments

Governor Cuomo announces administration appointments

Source: Office of the Governor

Governor Andrew M. Cuomo announced the following nomination and new appointments within his administration on January 14, 2014..

Corinda Crossdale

Governor Cuomo will nominate Ms. Crossdale to be Director of the State Office for the Aging (“NYSOFA”). Pending her confirmation by the New York State Senate, Ms. Crossdale will serve as Acting Director, where she will lead NYSOFA’s efforts to improve access to cost-effective non-medical support services for older individuals to maximize their ability to age in their community and avoid higher levels of publicly-financed care. Ms. Crossdale served as Assistant Secretary for Health since February 2013. Ms. Crossdale previously served as Executive Deputy Director of NYSOFA and as Director of the Office for the Aging in Monroe County. Ms. Crossdale earned a Master’s Degree in Social Work from Syracuse University and a B.S. from SUNY Brockport.


Rose Duhan

Ms. Duhan will serve as Assistant Secretary for Health. Ms. Duhan previously served as Director of Government Programs at the New York Health Plan Association. She also served as a Senior Budget Analyst for Albany County. Ms. Duhan earned a Master’s Degree in Public Health Policy and Administration from the University of Michigan and a B.A. from Wesleyan University.


Eric Madoff

Mr. Madoff will serve as Executive Director of the State Insurance Fund. Mr. Madoff previously served as Chief of Staff at the NYS Department of Financial Services, where he was responsible for the operation of the agency and its 1,400 employees. During his distinguished career, Mr. Madoff served as Chief Investment and Strategy Officer for the New York Liquidation Bureau, a Vice President at Goldman Sachs, and a Captain in the U.S. Army, stationed in Greece and Hawaii. Mr. Madoff earned an M.B.A. from Harvard and a B.S. from the United States Military Academy.
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