The so-called "Firefighter Rule" bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

The so-called "Firefighter Rule" bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Voss v City of New York, 2016 NY Slip Op 02586, Appellate Division, First Department

The “Firefighter Rule,” which has been extended to apply to police officers, bars firefighters and police officers from recovering damages from their employer for line of duty injuries that occur or result from the performance of the duties of firefighter or police officer.

New York City Police Officer Roberta Voss, who had not yet completed her tour of duty, was injured when another police officer “grabbed her from behind and demonstrated a take-down maneuver.” Voss sued the City alleging common-law negligence and violations of the Labor Law and the Penal Law. Supreme Court granted the City’s motion for summary judgment dismissing Voss’ complaint and Voss appealed.

The Appellate Division unanimously affirmed the lower court’s ruling, explained the Voss’ common-law negligence claim is barred by the so-called "Firefighter Rule" because she was injured by a fellow officer while both were on duty. Further, as the count noted in Alcalde v Riley, 73 AD3d 1101, GML §205-a “largely abolished the former so-called ‘firefighter's rule’ by giving firefighters [and police officers] a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers.”

In Voss’ situation the Appellate Division said “[b]ecause it is asserted against her employer (and her fellow officer), [Voss'] common-law negligence claim can only be based on the statutory right of action set out in General Municipal Law §205-e.

Although a §205-e claim may be predicated upon an alleged violation of Labor Law §27-a,* the Appellate Division concluded that Voss’ injury was not the type of workplace injury contemplated by Labor Law §27-a.

Addressing Voss’ complaint of alleged Penal Law violations, the court observer that there was no evidence that any criminal charges were brought against the fellow officer whose actions resulted in Voss’ injury and she offered no evidence that the officer's conduct was intentional, criminally reckless, or criminally negligent, so as to rebut the presumption that the Penal Law was not violated.

* §27-a of the State’s Labor Law addresses “Safety  and  health  standards  for  public  employees.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02586.htm

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A New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

A New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

Batorksy v New York State Off. of the Comptroller, 2016 NY Slip Op 02698, Appellate Division, Third Department

Victor H. Batorksy filed an Article 78 petition seeking a review a determination of the Deputy Comptroller denying his request to change his retirement election option.

Batorksy, a retired state employee and member of New York State and Local Retirement System [ERS], was formerly married to “interested party” Angela M. Batorksy [AMB]. AMB is also a retired state employee and an ERS member. A 2002 judgment of divorce and incorporated stipulations of settlement in a domestic relations order required Batorksy to pay a share of his pension benefits to AMB calculated according to the formula set forth in Majauskas v Majauskas, 61 NY2d 481. This domestic relations order was subsequently amended a number of times.*

The Appellate Division characterized Batorksy's several challenges to Supreme Court's determination denying his Article 78 petition as “fundamentally premised on the theory that the Retirement System improperly refused to allow him to change AMB's survivorship benefit.”

Batorksy contended that a 2011 domestic relations order, the last in a series of amendments to orders following the 2002 domestic relations order, should be amended to alter the survivorship benefit and that the Retirement System improperly refused to permit him to do so. The Retirement System had determined that the provisions of a 2005 domestic relations controlled.

The Appellate Division said that his arguments were unavailing as Batorksy as was not entitled to the relief he seeks. The court explained that the Comptroller has exclusive authority to determine the validity of applications by Retirement System members for any form of retirement benefits. In making such determinations, the Comptroller's interpretation of the statute that he or she is charged with enforcing must be sustained if it is not “irrational, unreasonable or inconsistent with the governing statute.”

It was Batorksy's burden to prove that the Retirement System incorrectly determined that the percentage of the option specified in the 2005 domestic relations order became irrevocable on October 31, 2010. In the words of the Appellate Division, “[t]his burden was not met.”

The governing statute, RSSL §90[e], provides that "an option selection previously filed by a member . . . may be changed no later than [30] days following the date of payability of his or her retirement allowance." The date of payability is "the first day of each and every month beginning on the first day of the month following the effective date of retirement" and Batorksy's retirement became effective on September 25, 2010.

Thus, said the Appellate Division, the date of payability was October 1, 2010, and October 31, 2010 was 30 days after the date of payability. There is no statutory exception permitting a retiree to change a valid option election after the time to make such an election has expired, and "[t]he absence of statutory prohibition does not permit [this Court] to imply the power with which the Comptroller must be endowed to conform legally with . . . [Batorksy's] present demand."

Accordingly, the Retirement System’s determination that the option election contained in the 2005 domestic relations order became irrevocable on October 31, 2010 was neither irrational nor unreasonable, and must be sustained.

On another point, the Appellate Division noted that there apparently was “[a]n erroneous statement by [the Employees’ Retirement System] in a memorandum of law submitted to Supreme Court to the effect that the Retirement System rejected the 2011 order” The court said that this “did not constitute a concession or admission, but was merely a typographical error, clearly contradicted by the record.”

* The Appellate Division’s decision sets out in some detail the events leading to the instant Article 78 action and appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02698.htm

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

New York State Corr. Officers and Police Benevolent Assn., Inc. v New York State Off. of Mental Health, 2016 NY Slip Op 02696, Appellate Division, Third Department

The New YorkState Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA], representing certain personnel at psychiatric centers operated by Office of Mental Health [OMH], brought an Article 78 action challenging an OMH emergency regulation* that required personnel employed at psychiatric centers operated by OMH and psychiatric facilities licensed under the Mental Hygiene Law who had not been vaccinated against influenza to wear face masks in areas where patients might be present during influenza season. NYSCOPBA contended that the emergency regulation was arbitrary and capricious. Supreme Court dismissed the petition and NYSCOPBA appealed.

In its appeal NYSCOPBA argued that the mandatory mask-wearing requirement was arbitrary and capricious because it fails to take into account the special circumstances present in psychiatric facilities. NYSCOPBA theory: the job responsibilities of the affected personnel included “such functions as assisting psychiatric patients in their treatment and rehabilitation, maintaining their safety and security and modeling appropriate behavior, and that the mask-wearing requirement interferes with their ability to communicate with patients, act as effective role models and otherwise perform their job responsibilities.”

In support of the challenged regulation, OMH submitted, among other things, the affidavit of Lloyd Sederer, Chief Medical Officer for OMH. Sederer said that in promulgating the emergency regulation OMH was "following the lead" of the New York State Department of Health [DOH] which had earlier promulgated a rule** addressing the use of masks to prevent influenza transmission in health care facilities. Sederer said that OMH relied upon the knowledge and expertise of DOH clinicians in deciding to adopt a similar regulation.

In addition to relying upon the expertise of DOH, OMH said that it had also considered research and recommendations from various authorities such as the Centers for Disease Control and the Food and Drug Administration concerning the use of face masks to control the spread of disease. 

OMH also noted its experience in treating the mentally ill indicated that individuals with chronic and serious mental illness suffer higher rates of chronic physical illness than other persons and that recent influenza seasons had been more severe than in the past. Thus OMH determined that the adoption of an emergency regulation, and ultimately a final regulation, in an effort to control influenza transmission was imperative to safeguard the health, safety and welfare of patients.

The Appellate Division said that "[OMH] is entitled to a high degree of judicial deference, especially when act[ing] in the area of its particular expertise,” and decided that NYSCOPBA had failed to meet its heavy burden of showing that the regulation was unreasonable and unsupported by any evidence.

In the words of the Appellate Division, “[t]aken as a whole, the record demonstrates that OMH did not disregard the special circumstances present in psychiatric facilities, but instead weighed these circumstances carefully and reached the reasonable conclusion that any disadvantages associated with mask-wearing in psychiatric facilities were outweighed by the substantial advantages they offered in preventing or reducing the transmission of influenza.”

As NYSCOPBA did not meet its burden of demonstrating that OMH acted arbitrarily, capriciously or unreasonably in promulgating the challenged regulation, the Appellate Division dismissed its appeal.

* The Appellate Division ruled that NYSCOPBA’s petition was not rendered moot by the expiration of the emergency regulation after 90 days. OMH subsequently adopted a permanent regulation that incorporated the mandatory mask-wearing requirement into its Rules concerning preventing influenza transmission [see 14 NYCRR 509].

** In Matter of Spence v Shah, 136 AD3d 1242, the Appellate Division determined that the DOH regulation was not arbitrary, capricious, irrational or contrary to law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02696.htm

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Stapleton v Ponte, 2016 NY Slip Op 02658, Appellate Division, Second Department

The Commissioner of the New York City Department of Correction, adopting and rejecting parts of the recommendation of an Administrative Law Judge [ALJ] following a hearing conducted pursuant to Civil Service Law §75, found Kadar Stapleton guilty of using excessive force upon an inmate and terminated his employment.

Supreme Court denied Stapleton’s CPLR Article 78 petition challenging the Commissioner’s determination and he appealed.

There was but one issue Stapleton raised in his appeal for the Appellate Division to consider: Did the Administrative Law Judge have the lawful authority and jurisdiction to conduct his §75 disciplinary hearing and “make findings and a recommendation?”

The Appellate Division, noting that Civil Service Law §75 governed the disciplinary proceeding at issue in this case, explained that §75 requires that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose."

Further, said the court, the failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), “is a jurisdictional defect that renders the hearing officer's determination null and void.”

In this instance, however, the Appellate Division found that Supreme Court had correctly determined that the ALJ had been properly designated to conduct Stapleton’s §75 disciplinary hearing and to make findings of fact. Further, were the ALJ to find Stapleton guilty of one or more of the charges filed against him, the ALJ was properly authorized to make a recommendation as to the penalty to be imposed.

As the Appellate Division found that Supreme Court properly denied Stapleton’s petition and dismissed the Article 78 proceeding, the court dismissed his appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02658.htm

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A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

Civil Serv. Empls. Assn., Inc. v Westchester County Health Care Corp., 2016 NY Slip Op 02649, Appellate Division, Second Department

In Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, the Court of Appeals held that “public benefit corporation was not subject to constitutional provisions regarding civil service appointment.” As a general rule, unless the law specifically makes the Civil Service Law applicable to the employees of a public benefit corporation, such persons are not subject to its provi­sions. 

For example, although Section 8087 of the Unconsolidated Laws provides that the employees of the New York City Off-track Betting Corporation are subject to the Civil Service Law and "other laws applicable to civil service personnel," statutes creating other OTBs do not include such a provision. Accordingly, New York courts have ruled that employees of such other OTBs are not in the public service for the purposes of the Civil Service Law.

In 1997 Article 10-C of the New York Health Care Corporations of the Public Authorities Law was amended by adding §§3300 – 3321 to create the Westchester County Health Care Corporation (WCHCC), a “public benefit corporation."* Significantly, §3304.4 provides that WCHCC shall be subject to the civil service law while §3305.12 grants WCHCC the authority “to appoint such officers, employees and agents as the corporation may require for the performance of its duties and to fix and determine their qualifications, duties, and compensation subject to the provisions of the civil service law and any applicable collective bargaining agreement, and to retain or employ counsel, auditors, engineers and private consultants on a contract basis or otherwise for rendering professional, management or technical services and advice.”

In 2013 WCHCC’s Board of Directors, WCHCC's governing body, adopted Resolution No. 29-2013 directing WCHCC's management to "take all steps and provide the resources necessary to establish, administer, and maintain its own civil service system." 

In response to this action by WCHCC the Civil Service Employees Association, Inc. and a number of other employee organizations [CSEA] initiated an Article 78 action contending that the Board acted in violation of the Act directing the establishment of its own civil service system when it approved the Resolution.

Supreme Court agreed, annulling the Resolution and WCHCC appealed.

The Appellate Division said that the standard of review in this proceeding pursuant to CPLR Article 78 is whether “the resolution under review was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” In considering questions of statutory interpretation the Appellate Division explained that a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" as "[T]he statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

In this Article 78 action the court ruled that CSEA met its burden of proving that WCHCC's adoption of the Resolution No. 29-2013 was affected by “an error of law” as the statute creating it did not explicitly nor implicitly transferred to the WCHCC and its Board of Directors the authority to self-administer its own civil service system.

Accordingly, the Appellate Division ruled that the Supreme Court properly annulled the Resolution.

* The significant provisions of §3304 addressing the transfer of certain officers and employees of Westchester County to WCHCC provide that [1] such officers and employees shall become officers and employees of WCHCC with equivalent offices, positions and employment and shall be deemed public officers or public employees for all purposes; [2] the provisions of §70 shall apply to such transfers as appropriate; [3] individuals holding a temporary or provisional appointment so transferred shall be subject to the same right of removal, examination or termination as though such transfer had not been made consistent with the provisions of the applicable collective bargaining agreement [CBA]; [4] WCHCC shall recognize the existing certified or recognized employee organizations for those persons who become WCHCC employees and be bound by the relevant provisions of CBAs with respect to existing terms and conditions of employment which CBAs shall remain in effect until altered by the terms of a successor contract; [5] successor employees to the positions held by such employees shall, consistent with the provisions of Article Fourteen of the Civil Service Law, be included in the same unit as their predecessors; [6] the salary or compensation of any such officer or employee, after such transfer, shall be paid by WCHCC and WCHCC shall acknowledge and give credit for all leave balances held by such officers and employees on the date of transfer; and [7] WCHCC shall be subject to the civil service law

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02649.htm
[Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.]