Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

2015 NY Slip Op 02134, Appellate Division, Second Department

General Municipal Law §207-a[1] guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased.”. If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In Mashnouk v City of Newburgh, 55 NY2d 80, the Court of Appeals held that the provisions of §207-a[2] includes "prospective salary increases given to active firefighters subsequent to the award and therefore firefighters receiving §207-a benefits were to receive the benefits of the negotiated salary increases."

Disabled retired firefighters [DRF] who became disabled as a result of injuries they sustained in the performance of their duties were receiving performance-of-duty disability retirement allowances from the New York State Retirement System pursuant to Retirement and Social Security Law §363-c, as well as supplemental benefits from the employer in the amount of the "difference between the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" pursuant to General Municipal Law §207-a[2].

However, the employer entered into a new Taylor Law [Civil Service Law Article 14] contract with its firefighters' union pursuant to which the salaries paid to active firefighters were temporarily decreased from the levels set forth in the previous contract by 5% for the period from January 14, 2011, through June 30, 2013, and by 3% for the period from July 1, 2013, through December 31, 2013. On January 21, 2011, the City notified the DRFs that the supplemental benefits they received pursuant to General Municipal Law §207-a[2] would be reduced in accordance with the new contract.

The DRFs commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus** to compel the employer to continue to pay supplemental benefits at the level that was in effect before the commencement of the new contract. Supreme Court dismissed their petition, which decision was sustained by the Appellate Division.

The Appellate Division explained that General Municipal Law §207-a guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased." If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay only "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

Citing Farber v City of Utica, 97 NY2d 476, the court said that the amount of such a disabled firefighter's regular salary or wages under §207-a[2] "is calculated based on the current salary of an active firefighter at the same grade the [firefighter] held upon retirement." Thus, the term "regular salary or wages" as employed in General Municipal Law §207-a[2] includes salary increases given to active firefighters following the award of the disability retirement allowance or pension as well as the benefit of longevity pay increases provided to active firefighters’

The Appellate Division then ruled that "regular salary or wages" also includes salary decreases applied to active firefighters and thus the DRFs failed to establish a "clear legal right" to the relief they sought.

* Such fireman shall continue to receive this supplement until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service. Further, this supplement to the retirement allowance benefit is limited to firefighters; police officers are covered by Section 207-c of the General Municipal Law, which does not provide for the payment of the difference between the police officers retirement allowance and his or her "Section 207-c benefit."

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02134.htm

____________

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A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot
2015 NY Slip Op 519109, Appellate Division, Third Department

A deputy sheriff injured his back during a foot pursuit in the course of his employment and received full pay for eight days of missed work immediately after the incident pursuant to General Municipal Law §207-c, as well as intermittent days during the next several months but ultimately was told that his benefits pursuant to General Municipal Law §207-c had been terminated. The deputy’s union filed a grievance on behalf of the deputy "and all similarly situated uni[on] members," charging a violation of the collective bargaining agreement between union and the County and demanded that the matter be submitted to arbitration.

The County filed a petition pursuant to CPLR §7503(b) seeking a stay of arbitration. Supreme Court granted the County’s application and the union appealed. While this appeal was pending before the Appellate Division, the deputy sheriff and union entered into a "global settlement contract" that, among other things, settled the deputy’s General Municipal Law §207-c claim, whereupon the County contended the appeal was moot and sought to have the appeal dismissed.

The Appellate Division agreed with the County that the “global settlement contract” rendered the union’s appeal moot, explaining that “In the absence of an exception to the mootness doctrine — that is, where an issue is likely to recur, presents novel or significant questions, or typically evades appellate review — ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.’"

In so ruling, the Appellate Division said that it was “unpersuaded by [the union’s] contention that it was not a party to the settlement and that similarly situated employees represented by [the union] would be affected by the outcome of this appeal.”

The court pointed out that the parties "are now operating under the terms of an expired contract, limiting the potential for similar disputes in the future." Further, said the Appellate Division, the union “participated in the grievance procedures that led to the settlement, and by means of its counsel's representation of both [the union] and the deputy throughout the proceedings, may also have been apprised of the terms of the agreement that ‘fully, finally and globally’ settled the claim.

Dismissing the union’s appeal, the Appellate Division ruled that the settlement contract contained no provisions reserving any issues for appeal and the record was devoid of any indication that there are similarly situated employees who lost benefits available to them pursuant to General Municipal Law §207-c.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519109.htm

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

Source: Office of the Governor

Seth Agata, Esq., has been nominated to serve as Chairman of the Public Employment Relations Board. Most recently, he served as Counsel to the Governor and, prior, as First Assistant Counsel and Assistant Counsel. Before joining the Governor’s staff, Mr. Agata served as Assistant Secretary for Program and Policy and as Senior Associate Counsel in the Office of Counsel to the Majority for the New York State Assembly. He was also Assistant Counsel Program and Counsel Staff in the Assembly. He served as Counsel for Investigations in the Office of State Comptroller, Assistant District Attorney for Columbia County, a trial examiner in the New York City Office of Collective Bargaining and was in private law practice in New York City and Columbia County. He is a co-author of The History of the New York Court of Appeals, 1932-2003 (Columbia U. Press, 2006) and has written articles on other topics, as well. Mr. Agata graduated from the New York State School of Industrial and Labor Relations at Cornell University as well the Cornell Law School. This nomination requires Senate confirmation.

Michael Weisberg has been appointed Chief Information Security Officer and Deputy Commissioner of Information Technology Services, with a special focus on cyber security. Most recently, Michael was CIO and Director of Information Technology for a consulting firm in Richmond, Virginia. Prior to that, Michael worked at the U.S. Federal Reserve as their Senior Information Security Architect, where he developed and published security architectures and designs, and advised Senior Federal Reserve Officers and management on security technologies and practices. In addition, he was the Vice President for Information Security for Bank of America and served as an Information Security Consultant. He is the Director of the Cyber Security program in the School of Professional and Continuing Education at the Sage Colleges. Mr. Weisberg has a Bachelor of Science from RPI and holds several industry recognized certifications, including Certified Information Systems Security Professional (CISSP) and Certified Scrum Master.

Johannah Chase has been appointed Assistant Secretary for Education. She previously was a consultant at Bank Street College of Education, where she worked with senior leadership on developing their strategic plan. Prior to that, Ms. Chase held a number of roles at the New York City Department of Education, most recently serving as Chief Executive Officer of the Office of Special Education and Chief Operating Officer of the Division of Students with Disabilities and English Learners. She also served as a Senior advisor on special education reform, Chief of Staff of the Division of School Support & Instruction and Associate Director of the Division of School Support & Instruction. She was also an eighth grade English and Math teacher in New York City for three years. Ms. Chase has a B.A from Cornell University and an M.S. in Teaching from Pace University.

Lisa Black has been appointed Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. She previously held a number of roles at the New York City Department of Homeless Services, most recently serving as Assistant Commissioner and, prior, Acting Deputy Commissioner, Director of Government Relations, and Acting Director of Communications and External Affairs. She also held a number of roles working in leadership in the New York State Senate for 14 years. Ms. Black has a B.A. from the College of Saint Rose.

Brian Shea has been appointed Upstate Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. He held a number of roles in the Office of Assemblywoman Donna A. Lupardo. Most recently, he served as Chief of Staff where he oversaw all office operations, legislative initiatives and external communications. Prior to that, he served as Clerk to the Assembly Committee on Children & Families and Legislative Director to the Assemblywoman. Mr. Shea has a B.A. in Political Science from Binghamton University.

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

Appeal of L.J., on behalf of his daughter A.J. regarding employee discipline, Decisions of the Commissioner of Education, Decision No. 16,722

The parent-petitioner in this appeal challenged a determination of the superintendent of schools regarding certain alleged conduct toward his daughter by district employees. 

The Commissioner dismissed the appeal for a number of technical reasons but indicated that had the appeal been properly before him “To extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against district staff.”

Citing Appeal of J.K., Decisions of the Commissioner, Decision No. 14,705 and Appeal of Lloyd, Decisions of the Commissioner, Decision No. 14,303, the Commissioner pointed out that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner of Education.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16722

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00896.htm

Disciplinary penalty imposed modified in view of individual’s long service with the agency

Disciplinary penalty imposed modified in view of individual’s long service with the agency
2015 NY Slip Op 02008, Appellate Division, First Department

The Appellate Division, First Department, sustained the dismissal of a New York City police officer, [Officer] finding that substantial evidence supported the determination that Officer was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

The court rejected Officer’s contention that the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute. Rather, said the court, the hearing officer's determination was based on Officer’s inconsistent statements in that his testimony at the hearing differed from statements he gave during an investigative interview and the hearing officer's credibility findings are entitled to deference.

As to the issue of the hearing officer considering hearsay evidence, the Appellate Division pointed out that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Department of Corrections and Community Supervision, 110 AD3d 425.

As to the penalty imposed, termination, which implicitly denied Officer his vested interest to a retirement allowance,* the court held that dismissing Officer from the police force was not shocking to one's sense of fairness, explaining that Officer was brought up on five separate charges based on events that occurred over a three-year period and he was found guilty of nine of the specifications charged following a hearing.

However, Officer’s long service and the fact that he was a decorated officer with eighteen years of service who often received high ratings on department evaluations served as mitigating factors in determining an appropriate penalty to be imposed. Notwithstanding the fact that Officer was previously disciplined for insubordination and placed on "one-year dismissal probation," the Appellate Division said that given Officer’s service and awards the penalty should be modified “solely to the extent of permitting Officer to apply for vested interest retirement benefits.”

* The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a member of the City’s Employees’ Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits. The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02008.htm

___________

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Brighter Choice Charter Middle School for Girls,

Elmira City School District, and

Patchogue-Medford Union Free School District.

Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Town of Austerlitz,

Town of Boonville,

Town of Caton,

Delaware County,

Town of Indian Lake, and

Tompkins County.

Comptroller DiNapoli & A.G. Schneiderman Announce State Prison Sentence for Florida Woman in $120,000 Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Friday announced the conviction and sentence of Graycelia Cizik, 64, a resident of Polk County, Florida. Cizik pleaded guilty on January 21, 2015 to a one-count Indictment charging her with the crime of Grand Larceny in the Second Degree, a class C felony. Friday, she was sentenced to 2 to 6 years in state prison by Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik also agreed to a judgment in favor of the New York State and Local Employees Retirement System in the amount of $121,772.72.

DiNapoli & Schneiderman Announce Sentencing of Former Met Council Insurance Broker
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Monday announced that Joseph Ross, the former insurance broker for the Metropolitan Council on Jewish Poverty (“Met Council”), has been sentenced to 18 months in jail. Ross also paid $534,000 in restitution to the Met Council and agreed to a judgment against him in the amount of $956,000 in favor of the Met Council. The joint investigation revealed that Ross, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Ross personally stole $1.5 million from the Met Council.

DiNapoli: Wall Street Bonuses Edge Up in 2014
The average bonus paid in New York City’s security industry rose by 2 percent to $172,860 in 2014, according to an estimate released Wednesday by New York State Comptroller Thomas P. DiNapoli. Even though the industry was slightly less profitable in 2014, it added 2,300 jobs in New York City, the first year the industry has added jobs since 2011.

DiNapoli: Medicaid Redesign Presents Opportunities and Risks
The state’s efforts to limit Medicaid spending are showing measurable progress with annual growth at less than 2 percent. Still, state spending on Medicaid is projected to rise by nearly $700 million a year over the next four years and improving the quality of care for Medicaid patients remains a challenge after more than two decades of reform, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Expands State Spending Transparency on OpenBookNewYork.com
New York State Comptroller Thomas P. DiNapoli announced Tuesday that New Yorkers can now trace state spending back to the funding source or program on openbooknewyork.com, an easy-to-use search tool for the public to see how their tax dollars are being spent. This is the fifth expansion of the website, building on DiNapoli’s commitment to increasing government transparency.

DiNapoli Announces Results of General Obligation Bond Sale: $329,225,000 Awarded
State Comptroller Thomas P. DiNapoli Tuesday awardedthree series of New York State General Obligation Bonds totaling $329,225,000 through a competitive sale. Specifically, the sales were $142,555,000 of Series 2015A Tax-Exempt Bonds, $5,640,000 of Series 2015B Taxable Bonds and $181,030,000 of Series 2015C Tax-Exempt Refunding Bonds.

Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers

Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers
2015 NY Slip Op 519474, Appellate Division, Third Department

A New York State Correction Officer [Officer] challenged the New York Employees' State Retirement System's  denial of his application for performance of duty disability retirement benefits.

Officer had applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated due to a work-related injury to his right knee. At the administrative hearing Officer testified that he had injured his knee while involved in a struggle to restrain an unruly inmate who had threatened another office and that he and the other officer were in the process of taking the inmate down to the floor when he felt pain in his knee.

However, Officer had signed a written report on the day of the incident that stated that, after the other officer had taken down and restrained the inmate, who had stopped resisting, he injured his knee when he slipped as he was placing shackles on the inmate's legs. 

Crediting the description of the incident in the written report over Officer's testimony, the Hearing Officer found that Officer failed to establish that his injury was the result of an act of an inmate and upheld the Retirement System's denial of the application. The Comptroller adopted that determination and Officer appealed.

Mindful "that inconsistencies between [Officer’s] sworn testimony and written documents present a credibility issue for the factfinder to resolve," the Appellate Division said that it deferred “to the Hearing Officer's decision to credit the account of the incident set forth in the contemporaneous written report over that testified to by [Officer] during the hearing.” However, said that court, even accepting as true the version of the event contained in the written report, the record lacks substantial evidence to support the determination that Officer’s injury was not "the natural and proximate result of any act of any inmate” within the meaning of Retirement and Social Security Law §607-c [a].

Retirement and Social Security Law §607-c (a) provides, in pertinent part, that “performance of duty disability retirement benefits shall be available to a correction officer ... who becomes physically or mentally incapacitated for the performance of duties . . . by, or as the natural and proximate result of [,] any act of any inmate" (emphasis by the court) and the statute requires "that the [correction officer] demonstrate that his or her injuries were caused by direct interaction with an inmate."

The Appellate Division concluded that even accepting the version of the incident set forth in the written reports, the necessary "direct interaction" was present as Officer was injured while attempting to shackle an inmate who, just seconds earlier, had been taken down to the ground after violently threatening another correction officer. The court noted that the Hearing Officer erroneously found, which finding was adopted by the Comptroller, "[Officer] simply injured himself when he slipped after placing shackles on the inmate's feet" (emphasis by the court). Neither the testimony at the hearing nor any of the documentary evidence supports a finding that Officer was injured after he had shackled the inmate (emphasis by the court).

Under these circumstances, said the court, there is simply no evidentiary basis in the record to conclude that Officer’s injury was not the natural and proximate result of an act of an inmate. Further, explained the Appellate Division, ”... it is clear that the act of restraining a combative and unruly inmate is precisely the type of activity that was intended to trigger the protections afforded correction officers by Retirement and Social Security Law §607-c and the legislative justification for the enactment of both Retirement and Social Security Law §§507-b and 607-c — which provide performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision and county-employed correction officers, respectively — was that "the increased inmate population of the state's prison system created strain and tension, manifesting itself in an increase in altercations among inmates and between inmates and correction officers." Thus, these statutes were thus "clearly intended to compensate correction officers who, because of the risks created by their 'daily contact with certain persons who are dangerous [and] profoundly antisocial.'”

Having determined that Officer’s injury was a natural and proximate result of an act of an inmate, the Appellate Division remitted the matter to the Comptroller “for further proceedings on the issue of the permanency of [Officer’s] alleged disability.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519474.htm

 ________________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar statutes providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

________________

New York State's E-mail management and preservation policy

New York State's E-mail management and preservation policy

Source: Memorandum distributed by the State Office of Information Technology Services

A number of newspaper articles and editorials have addressed New York State’s “standard 90-day e-mail management system” implemented by State departments and agencies.

State departments and agencies were advised of this new procedure by means of a memorandum dated June 18, 2013 sent to the General Counsel of each State department and agency by the General Counsel of the New York State Office of Information Technology Services.*  

The memorandum stated that e-mails sent or received by State department and agency personnel on or after June 30, 2013 are  to be "automatically" purged from the user’s mailbox after 90 days unless the e-mail was subject to a Freedom of Information Law [FOIL] request or was relevant to litigation.

The complete text of the memorandum is posted on the Internet at:

http://www.propublica.org/documents/item/1184686-foil-2014-08-production.html

* The memorandum does not apply to political subdivisions of the State. 

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Employee alleged to have engaged in plagiarism

Office of Payroll Management v. Hassan, OATH Index No. 308/15

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the Internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.  

Employee charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at work

Fire Dep't v. Buttaro, OATH Index No. 2430/14

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.  Fire Dep't v. Buttaro, OATH Index No. 2430/14

Testing positive for alcohol during random test

Dep't of Transportation v. Anonymous, OATH Index No. 147/15.

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.  

Employee alleged to be mentally unfit to perform his job

Dep't of Environmental Protection v. J.B., OATH Index No. 321/15

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   

N.B. OATH Index No. 321/15 decision rejected and remanded, Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness.

Submission of a fraudulent medical note alleged

Human Resources Admin. v. Lopez, OATH Index No. 496/15

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.  

Positive drug test

Dep't of Sanitation v. Petosa, OATH Index No. 758/15

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.  

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave
New York State Corr. Officers & Police Benevolent Assn., Inc. v New York State Dept. of Corr. & Community Supervision, 2015 NY Slip Op 01853, Appellate Division, Third Department

Supreme Court dismissed the New York State Corr. Officers & Police Benevolent Association’s [Association] application to review the New York State Department of Correction and Community Supervision’s [Department] decision to deny an Association member’s [Employee] request to restore sick leave credit the member used while absent on sick leave.

Employee was on an approved medical leave on November 3, and November 4, but then advised the Department that she was not returning to work on November 5, because her treating physician “prevented her from doing so,”

Employee’s supervisor told her that a note from her physician explaining her absence was required before she could return to work. Employee submitted a note from her doctor stating that she was fit to return to work as of November 8.

The Department than said that Employee had to undergo an Employee Health Services (EHS) examination before she could resume active duty. On December 10, EHS found that the Employee was fit to return to work, which she did on December 12.

Employee then requested the Department restore the 22 days of sick leave credits that Employee used in order to remain on the payroll while she awaited EHS clearance to return to work. The Department denied her request and the Association filed an Article 78 petition challenging the Department's decision, contending that such refusal constituted a violation of Civil Service Law §72(5).

The Appellate Division said that it agreed with Supreme Court’s determination that the Association’s reliance on §72(5) “fails to afford them any relief.” The court explained that nothing in the record suggests that Employee was placed on involuntary leave pursuant to Civil Service Law §72(5) and “the evidence shows that Department exercised its right — under 4 NYCRR 21.3(e)* and Article 14 of the parties' collective bargaining agreement — to subject Employee to an EHS assessment to ensure that she could properly perform her job responsibilities.”

The regulation and relevant provision set out in the collective bargaining agreement allowed Department to require Employee, following a medical absence, to be examined by a Department designated physician in order to ensure that she was capable of performing her work duties before being permitted to resume her employment.

According to the decision, Employee absented herself on sick leave and Department had not initiated the procedural steps to place Employee on “Leave for Ordinary Disability” pursuant to Civil Service Law §72(1) nor placed Employee on “Leave for Ordinary Disability involuntarily pursuant to Civil Service Law §72(5). Further, the Appellate Division said that it was not persuaded that Department’s refusal to allow Employee to return to work for weeks after her personal physician indicated that she was fit to do so constituted a de facto involuntary leave for ordinary disability within the meaning of §72(5).

* 4 NYCRR 21.3(e), which applies to employees of the State as an employer, provides that “The appointing authority may require an employee who has been absent because of personal illness, prior to and as a condition of his [or her] return to duty, to be examined, at the expense of the department or agency, by a physician designated by the appointing authority, to establish that he [or she] is not disabled from the performance of his [or her] normal duties and that his [or her] return to duty will not jeopardize the health of other employees.” A number of local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:.

http://www.nycourts.gov/reporter/3dseries/2015/2015_01853.htm

Recent appointments announced by the Governor

Recent appointments announced by the Governor

Source: Office of the Governor

On Martch 9, 2015, Governor Andrew M. Cuomo announced the appointment of the individuals named below to his administration.

Tom Topousis has been appointed Special Adviser to the Communications Director and Director of Speechwriting. Most recently, he served as Editor in Chief of the Queens Courier and its sister publications. Before that, he spent more than 17 years at the New York Post, where he covered city and state government, transit and the reconstruction of the World Trade Center before becoming political editor in 2010, during which he oversaw coverage of the 2012 presidential campaign. He has also worked for the Bergen Record in New Jersey as well as several newspapers in New York State, including the Poughkeepsie Journal, Oneonta Star and the Times-Herald Record of Middletown. Mr. Topousis studied anthropology at the State University of New York at New Paltz.

Aimee Vargas, Esq., has been appointed Director of Downstate Intergovernmental Affairs, which covers the Hudson Valley, NYC and Long Island. Ms. Vargas previously oversaw Governor Cuomo’s regional affairs in the Hudson Valley and served as the Mid-Hudson Regional Director of Empire State Development and the Executive Director of the Mid-Hudson Regional Economic Development Council. Ms. Vargas also serves on the Governor's Tappan Zee Community Outreach team and will continue to do so in her new role. She was formerly Associate Counsel at the New York State Department of Environmental Conservation and, prior, Director of Finance for the Town of Clarkstown in Rockland County. Ms. Vargas is a member of the Rockland Community Foundation's Advisory Board and was recognized by Rockland Economic Development Corporation as a recipient of their "40 Under 40" award. She has also been recognized by the Dutchess County Exempt Volunteer Firefighters Association's Hispanic Heritage Award. Ms. Vargas is a graduate of the S. I. Newhouse School of Public Communications at Syracuse University and the Benjamin N. Cardozo School of Law.

Julissa Gutierrez has been appointed Deputy Director of Constituency Affairs. Ms. Gutierrez previously served in a number of roles at the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, most recently as Director of National Programs and Community Relations and Northeast Director for Civic Engagement. She was Special Assistant to the Commissioner of the New York City Department of Youth and Community Development and has had a long relationship with the Anti-Defamation League, having held various positions and participated in programs there since she was in high school. Ms. Gutierrez is Board Chair of New Immigrants Community Empowerment and a Board of Trustees for the Queens Public Library. Ms. Gutierrez has a B.A. from the University of Delaware and a M.A. from University of Chicago.

Rosemary Powers has been appointed Chief Operating Officer for the Department of Transportation. She most recently served as the Deputy Chief of Staff and Senior Director of Government Affairs for Massachusetts Governor Deval Patrick. She previously served as the Chief of Staff and Director of Government Affairs at the Department of Environmental Protection in Massachusetts. She has also served as the Director of Government Affairs at the Massachusetts Department of Conservation and Recreation and as Chief of Staff and Policy and Legislative Director for Senator Jack Hart of Massachusetts. She was co-chair of the Intergovernmental Affairs Team of the Mayor Martin J. Walsh Transition Committee. Ms. Powers has a Masters of Public Administration from Harvard University’s John F. Kennedy School of Government and a B.A. from Suffolk University.

Tanuja Mohapatra, Esq., has been appointed Director of Legislative Affairs for the Department of Financial Services. Ms. Mohapatra previously served as Chief of Staff and Counselor to New York Assemblyman N. Nick Perry, where she was instrumental in the advocacy of homeowners' rights during the financial crisis, including the passage of legislation that protected consumers from paying costly bank fees. Prior, she worked in the private sector in the areas of E-Discovery and Litigation Management representing fortune 500 companies in the financial sector, and was an attorney for Womble Carlyle Sandridge & Rice in Durham, NC engaged in pharmaceutical litigation. Ms Mohapatra is admitted in North Carolina’s 10th Judicial District and has a J.D. from the Columbus School of Law at the Catholic University and a B.A. in Political Science from North Carolina State University.

Catherine Youssef Kassenoff, Esq., has been appointed Special Counsel for Ethics, Risk and Compliance for the Energy and Finance Sub-Cabinet. She most recently served as the Executive Director, Executive Counsel and Head of U.S. Litigation and Government Investigations at Boehringer Ingelheim Pharmaceuticals where she oversaw all U.S. litigation and government investigations. She previously served as the Director of Corporate Compliance and Litigation at Edison Learning, Inc. and was an Assistant U.S. Attorney in the Eastern District of New York. Ms. Kassenoff has a J.D. from New York University School of Law and an A.B. from Dartmouth College.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 7, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 7, 2015

Click on text highlighted in color  to access the full report

On Wednesday, March 4, 2015, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Brookhaven Fire District,

Fair Haven Volunteer Fire Department,

Town of Ira, and the

Lake View Fire District.

Threatening workplace violence

Threatening workplace violence

2015 NY Slip Op 01754, Appellate Division, First Department

An employee [Employee] was found guilty of disciplinary charges alleging that he threatened his supervisor with violence. In the administrative disciplinary action the employee’s supervisor had testified that Employee had threatened him as Employee stood near him, holding wood or another object in his hand, and raised the object while getting angrier in his statements to the supervisor.

The disciplinary penalty imposed: suspension without pay for 31 work days,

Employee’s challenge to the administrative disciplinary determination and the penalty imposed, but the Appellate Division sustained both the finding of guilt and the penalty imposed on Employee..

The court explained that the administrative determination that Employee had engaged in an incident of workplace violence was supported by substantial evidence and that was no basis to disturb the credibility determinations of the hearing officer.

As to the penalty imposed, suspension without pay for 31 work days, the Appellate Division said that based on the employer’s “strong concern with promoting a nonviolent workplace, the suspension imposed does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01754.htm

_______________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

_______________

The top five NYPPL summaries for the week ending March 7, 2015

Only registered readers of New York Public Personnel Law are able to access this LawBlog. Click on http://nypplcaes.blogspot.com/ for information about becoming a registered reader.

NYS Comptroller Thomas P. DiNapoli releases report on 30-day State Budget amendments

NYS Comptroller Thomas P. DiNapoli releases report on 30-day state budget amendments

Source: Office of the State Comptroller

Amendments to the proposed state budget appropriately lower tax collection estimates in the Financial Plan for state fiscal year 2014-15 but increase the Executive’s discretion over spending, including $4.55 billion from financial settlements, and attach major policy issues to time-limited appropriations, according to an analysis released today by New York State Comptroller Thomas P. DiNapoli. [Click on “analysis” to access the Comptroller’s Executive Summary and Overview of the 30-day budget amendments.]

“Several of the amendments give the Executive great latitude in spending,” DiNapoli said. “And while particular substantive proposals may be worthy, attaching them to spending bills that expire within two years or less may not be the best way to consider the merits.”

The 30-day amendments add language directly to appropriation bills for a variety of policy purposes including evaluation of teachers and principals, a proposed education tax credit program, extension of tuition assistance to certain undocumented immigrants, certain personal financial and other disclosures by state legislators, and reimbursement of travel and related expenses by state elected officials. 

Other areas where policy initiatives have been added to appropriations include Medicaid and authorization for the state to use design-build procurements.

The 30-day amendments also eliminate proposed separate appropriations from a new Dedicated Infrastructure Investment Fund (DIIF), advanced by the Executive to allocate certain financial settlement funds, and instead add $4.55 billion to existing appropriations at the Department of Health (DOH), the Metropolitan Transportation Authority (MTA) and the Department of Transportation (DOT), allocating these appropriations through percentage shares.

With the exception of the health care funding, that spending would be subject to approval of the director of the Division of the Budget (DOB) and could be used for costs incurred before April 1, 2015. The money could also be transferred to any state agency or public authority for the purposes described. As a result, oversight measures, checks and balances, and spending reviews could be bypassed,

DiNapoli reports that DOB has also modified projections made in the SFY 2014-15 third quarter financial plan update included with the Executive Budget. These adjustments primarily address a shortfall in tax revenues relative to the most recent projections, reducing General Fund tax receipts by $355 million. The report finds that while overall estimates in the current year have been reduced downward, projections for SFY 2015-16 remain the same, resulting in continued risks associated with the revised estimates. The revenue consensus between the Executive and the Legislature further increased projected revenues by $200 million. The report found that based on certain economic projections and actual tax collection results to date, the revised revenue projections may be optimistic,

For a copy of the report visit: Review of the SFY 2015-16 Executive Budget Amendments and Revenue Consensus.

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc., 2015 NY Slip Op 01798, Appellate Division, Second Department

A correction officer filed a grievance after he was denied a longevity pay increase. After his grievance was denied, the Correction Officers Benevolent Association of Rockland County, Inc. filed a notice of intent to arbitrate the grievance. Contending that the parties had not agreed to arbitrate this type of grievance, Rockland County sought a permanent stay of arbitration. The County's motion to permanently stay arbitration was granted by Supreme Court. 

Supreme Court determined that the parties had only agreed to arbitrate certain limited matters expressly delineated in the collective bargaining agreement [CBA], which did not include the grievance at issue. The Association appealed and the Appellate Division ruled that Supreme Court properly granted the County’s petition to permanently stay arbitration and denied the Association’s cross petition to compel arbitration.

The Appellate Division explained that the determination of whether a dispute between a public sector employer and a public employee organization is arbitrable is subject to a two-prong test, citing Deer Park UFSD v Deer Park Teachers’ Association, 77 AD3d 747, whereby:

1. The court must initially determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and absent such a finding;

2. Must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular dispute at issue.

Observing that here the County did not claim that the arbitration of the subject matter of the dispute was prohibited by law or public policy, the court concluded the only issue to consider was whether the parties agreed to arbitrate the particular dispute.

The Appellate Division said that unlike general labor disputes in the private sector involving arbitration, the intent of parties to a collective bargaining agreement in the field of public employment to arbitrate a particular issue may not be presumed but rather “it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to the collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum," citing Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d at 514.

Finding that the relevant collective bargaining agreement did not broadly provide for the arbitration of any grievance that may arise under the CBA, the Appellate Division ruled that Supreme Court correctly concluded that the CBA limited the availability of arbitration to specifically enumerated matters.

The bottom line: As the Association failed to demonstrate that "the parties in fact agreed to arbitrate [this] particular dispute," the Supreme Court properly granted the County's petition to permanently stay arbitration and properly denied the Association's cross petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01798.htm

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01746.htm

Employee’s refusal to cooperate with a police investigation found to constitute misconduct

Employee’s refusal to cooperate with a police investigation found to constitute misconduct
2015 NY Slip Op 01740, Appellate Division, First Department

The Appellate Division confirmed the determination of New York City’s Police Commissioner adopting the findings of the disciplinary Hearing Officer that a New York City police officer had engaged in misconduct, and imposing a penalty of forfeiture of 30 vacation days, a 30-day suspension, without pay, and a one-year dismissal probation period.

The court said that there was substantial evidence to support the Hearing Officer’s findings that the police officer had refused to cooperate with a Port Authority Police Department (PAPD) investigation, and that he gave vague and nonresponsive answers at a subsequent interview by New York City Police Department officials.

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The imposed penalty does not shock our sense of fairness.”

Similarly, a New York City Office of Administrative Trials and Hearings' administrative law judge held that an employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview [NYC Health and Hospital Corporation v Jones, OATH Index #1100/10, posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1100.pdf].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01740.htm

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

_____________

Using evidence of alleged wrongdoing obtained by means of global-positioning equipment

Using evidence of alleged wrongdoing obtained by means of global-positioning equipment
2015 NY Slip Op 01735, Appellate Division, First Department

The New York City Taxi and Limousine Commission [TLC] revoked a taxi driver’s license after finding that the driver “on numerous occasions, charged passengers a rate that was double the legal rate.” The Appellate Division sustained the Commissions action.

The court noted that although the driver did not exhaust his administrative remedies because he failed to appeal Chairperson's final decision to revoke petitioner's license, he contended that the data from a global-positioning-system (GPS) device installed by the TLC as part of its Taxi Technology System without a court order was obtained in violation of the New York State Constitution and the United States Constitution.

Even had the driver exhausted his administrative remedies, said the Appellate Division, he would not prevail in his challenge to the TLC’s installation and use of the device, explaining that “Even if the installation of the device constituted a ‘search’ within the meaning of both Constitutions, the search was reasonable under the special needs exception to the warrant requirement.”

In Matter of Cunningham, 21 NY3d 515, the Court of Appeals considered the use of a Global Positioning System device to gather evidence of a state employee’s alleged misconduct [see http://publicpersonnellaw.blogspot.com/2013/06/using-global-positioning-system-device.html]. 

In Cunningham, a State agency, suspecting that a State employee was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile without the employee’s knowledge. Citing People v Weaver (12 NY3d 433) and United States v Jones (132 S Ct 945}, the Court of Appeals ruled that the State agency's action was a search within the meaning of the State and Federal Constitutions and “did not require a warrant” but “on the facts of this case such surveillance was  unreasonable”

The decision TLC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01735.htm

The Cunningham decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

The doctrine of estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

The Doctrine of Estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

2015 NY Slip Op 01222, Appellate Division, Third Department

A member [Retiree] of the New York State Employees Retirement System accepted an incentive for early retirement in 2010, with an effective date of retirement of May 31, 2010. More than one and one-half years later Retiree filed an application for disability retirement benefits, asserting that no one at his place of work or the Retirement System informed him about the possible availability of disability retirement benefits when he filed for "service retirement."

A Hearing Officer concluded that Retiree’s application for disability retirement benefits was not timely filed. The Comptroller adopted the findings and conclusions of the Hearing Officer and Retiree sued, contending that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with Retirement and Social Security Law §153(3),

The Appellate Division affirmed the Comptroller’s decision, explaining:

1. The Comptroller has exclusive authority to determine all applications for retirement benefits which determination must be sustained “if it is not unreasonable" and "if the underlying factual findings are supported by substantial evidence."

2. An application for disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Article 15 must be filed "within three months from the last date the member was being paid on the payroll."

3. It is undisputed that Retiree’s application for disability benefits was filed over 1½ years after his removal from the payroll on May 31, 2010’

Accordingly, said the court, “substantial evidence supports the determination that [Retiree’s] application was untimely.”

The Appellate Division also rejected Retiree’s argument that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with RSSL §153(3) in view of the fact that the Comptroller determined that RSSL §155 “dictates that the failure to provide the plan did not ‘create, revive, extend, or otherwise affect the entitlement of a member, retired member, or a beneficiary to any retirement benefit.’"

Indeed, noted the court, even if the Retirement System provided Retiree with incomplete or inaccurate information, "[t]he doctrine of estoppel will not provide eligibility where, by statute, the individual does not qualify” for the retirement benefit claimed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01222.htm