Individual injured in a "slip and fall" while engaged in a personal activity during her work shift found ineligible for accidental disability retirement benefits

An applicant for accidental disability retirement benefits injured while engaged in a personal activity determined not to have been engaged in performing the duties of the position. The police officer [Petitioner], had applied for accidental disability retirement benefits following her staining multiple injuries as the result of her "slip and fall" accident while exiting her patrol car "when she stopped for coffee". 

Petitioner's applications were denied by the retirement system and, following a hearing, a Hearing Officer upheld the denial of both her applications for benefits, finding that the injuries she suffered were not sustained while Petitioner was engaged in performing the duties of her employment. The State Comptroller adopted the Hearing Officer's findings and conclusions. Petitioner then initiated a CPLR Article 78 proceeding challenging the Comptroller's determination with respect to her applications for accidental disability retirement benefits.

The Appellate Division sustained the Comptroller's decision, holding:

1. The burden is on the applicant for accidental disability retirement benefits to demonstrate that his or her incapacitation was the natural and proximate result of an accident within the meaning of the Retirement and Social Security Law and sustained while in service;

2. The threshold issue of whether [a] petitioner was in service at the time that his [or her] injury occurred turns on whether he [or she] was performing job duties at the time of the injury*; and

3. The Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service," and, if supported by substantial evidence, the Comptroller's determination must be upheld.

The Appellate Division, noting that Petitioner testified that police officers routinely stopped for coffee and food during their shifts, said the record supports the finding that she was not directed or asked to do so by her supervisor or was a part of her job duties. As substantial evidence supported the Comptroller's determination that Petitioner was not injured while in service in that she was engaged in a personal activity at the time she suffered injury, the Comptroller's decision must be upheld.

Further, said the Court, "Petitioner's reliance on precedent under the Workers' Compensation Law is misplaced, as decisions decided thereunder are not binding on [State Comptroller]".

* See Matter of Verille v Gardner, 177 AD3d 1068

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

Daughter-in-law sentenced to over one year in federal prison and ordered to pay $459,000 in full restitution for stealing NYS Pension and Social Security payments

On November 15, 2023, New York State Comptroller, together with U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan, and Inspector General for the Social Security Administration Gail S. Ennis, reported that a Georgia woman, Sandra Smith, was sentenced to over a year in federal prison and ordered to pay full restitution after Ms. Smith admitted she stole $459,050 in New York state pension and federal social security payments from her deceased mother-in-law’s bank account.

The State Comptroller said “The defendant callously exploited her mother-in-law’s death in an effort to defraud New York’s retirement system and the Social Security Administration". He thanked his investigative team, U.S. Attorney Buchanan, and the Social Security Administration Office of the Inspector General for their assistance in holding Smith accountable.

“Theft from government benefits programs is a common crime that regrettably often follows the death of a family member,” Buchanan said. “This defendant stole nearly half a million dollars from two separate government entities. Her sentence reflects the seriousness of her crimes and hopefully will help to deter others from engaging in similar conduct.”

“Ms. Smith knowingly concealed her mother-in-law’s death to steal over $450,000 in retirement benefits from the deceased’s bank account. Her selfish actions were criminal, and this sentence now holds her responsible for repayment of $194,351 in Social Security funds,” Ennis said. “I thank the New York State Comptroller’s Office for their work in this joint investigation and the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family but died on Sept. 14, 2006.

Minnie Smith’s family did not notify the New York state retirement system or the Social Security Administration (SSA) of her death. Instead, the retirement system received a change of address form purportedly signed and dated by the deceased.

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, she had access to Minnie Smith’s bank account. After her mother-in-law died, Sandra Smith kept the bank account open while the retirement system and SSA continued to deposit funds into the account until early 2021 when Minnie Smith’s death was discovered.

A total of $264,699 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

Sandra Smith, of Morrow, Ga., accessed her deceased mother-in-law’s bank account online and then transferred the pension and social security funds into her personal bank accounts from which she either withdrew cash or further transferred the money to other bank accounts in her control.

Smith pleaded guilty to two federal counts of theft of government funds in July.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.ny.gov/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

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Intentional acts of sexual harassment are not within the scope of a public employee's official duties nor do they advance the public employer's interests

A correction officer [CO] was employed at a Department of Corrections and Community Supervision [DOCCS] Correctional Facility [Facility]. A co-worker [Teacher] at the Facility complained that she was subjected to unwelcome and increasingly disturbing romantic advances by CO. CO's unwelcome behavior continued after Teacher told CO that she was offended and wrote him a letter directing him "to stop bothering her". 

After it became apparent that DOCCS officials were not taking action to resolve Teacher's repeated complaints about CO's conduct, Teacher obtained an order of protection against CO. CO was later arrested for violating the order. 

The stress of CO's ongoing behavior caused Teacher to develop physical and mental problems and at her physician's direction she discontinued working at the Facility. Teacher never returned to work at the Facility, and was subsequently terminated by DOCCS.

Teacher then commenced an action in the US District Court against CO, the State of New York, DOCCS and two Facility officials she alleged had failed to address her complaints about CO's conduct. Teacher also alleged that she had been subjected to unlawful discrimination, a hostile work environment, sexual harassment and suffered retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 USC §1983 and Executive Law §296. 

A jury found CO liable and awarded Teacher compensatory and punitive damages. Ultimately Teacher obtained a judgment against CO in the amount of $2,880,000 in compensatory damages and $50,000 in punitive damages.

CO appealed the judgment but the US Court of Appeals for the Second Circuit affirmed. In so doing, the Second Circuit observed that the award of noneconomic and punitive damages against CO was supported by proof of his "egregious conduct, including sending [Teacher] threatening messages, making unwanted advances after she asked him to stop, filing a false complaint accusing her of an inappropriate relationship with an inmate, and violating an order of protection".

CO then requested that he be indemnified by the State for the judgment amount. Supreme Court granted the State Defendants' motion, which it deemed a motion for summary judgment, and dismissed CO's petition/complaint. CO appealed the Supreme Court's decision.

The Appellate Division affirmed the lower court's ruling, opining although "Public Officers Law §17(3)(a) provides that the State shall indemnify its employees for a judgment or settlement provided that the act or omission which was the subject of the judgment or settlement occurred while the employee was acting within the scope of his [or her] public employment or duties," that duty does not extend to cases in which "the injury or damage resulted from intentional wrongdoing on the part of the employee", citing Matter of Spitz v Coughlin, 128 AD2d 281, and Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 192 AD3d 1586.

In the words of the court: "There is no doubt that "intentional acts of sexual harassment ... [are] not within the scope of [an individual's] employment and [do] not advance the [State's] interests", citing Town of Somers v Titan Indem. Co., 289 AD2d 563, at 564 and Grasso v Schenectady County Pub. Lib., 30 AD3d 814. To the minimal extent that [CO] attempts to claim that his behavior toward [Teacher] did not constitute intentional wrongdoing, the jury that found him liable for that behavior disagreed. The record therefore reflects that the jury necessarily determined that [CO's] wrongdoing was intentional, and he is now collaterally estopped from arguing otherwise. Thus, as the [State and the other named respondents] demonstrated that a rational basis existed for the determination that [CO] was not entitled to indemnification, and [CO] did not raise a material question of fact in response, Supreme Court properly granted summary judgment to the [State and the named Respondents]."

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

 

 

Plaintiff's claims of alleged misconduct by City University of New York personnel and other named defendants must be brought in the Court of Claims

Supreme Court granted the several defendants' motions to dismiss the Plaintiff complaint was unanimously affirmed Appellate Division, without costs.

Rejecting Plaintiff's assertion that Supreme Court had jurisdiction over Queensborough Community College, where Plaintiff was employed, because it is a community college rather than a senior college, the Appellate Division explained:

1. Supreme Court lacked subject matter jurisdiction over the claim against defendant City University of New York [CUNY] because any claims of misconduct by CUNY's counsel with respect to the selection of the arbitrator must be brought in the Court of Claims;

2. It must reject Plaintiff's assertion that Supreme Court has jurisdiction over Queensborough Community College, where Plaintiff was employed, because "The gravamen of [Plaintiff's] complaint is not that Queensborough terminated his employment, but that the Office of the General Counsel, a part of CUNY's central administration, wrongfully selected one of the named defendants as the arbitrator in the matter,* noting the Court of Claims has exclusive jurisdiction over tort claims based on conduct by a CUNY senior college [see Education Law §§6202[5] and 6224[4][b]; and

3. The Plaintiff's complaint is barred on the basis of res judicata and collateral estoppel as in earlier appeals Plaintiff sought to set aside the arbitration award and Plaintiff's current claims are based on the same transaction as in the earlier action, and are therefore barred even though they are based upon different theories.

Further, said the Appellate Division, dismissal of the complaint is warranted on other grounds, as well. The court opined that (a) the American Arbitration Association and the designated arbitrator "are protected by immunity, as their acts were performed in their arbitral capacity", citing Trojan v Cipolla & Co., 172 AD3d 569 and (b) Plaintiff "fails to plead, as is necessary to sustain a claim against an unincorporated association, that the entire membership authorized and later ratified its actions, noting the Court of Appeals ruling in Palladino v CNY Centro, Inc., 23 NY3d 140.**

* The Appellate Division noted that Education Law §6202[5] defines "senior college" to include "an administrative institution".

** The Appellate Division noted Supreme Court "also properly dismissed [Plaintiff's] aiding and abetting fraud causes of action as against both CUNY and PSC [Professional Staff Congress/CUN] because they were not pleaded with the requisite particularity", citing CPLR §3016[b].

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

 

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