Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Stewart v. County of Albany, 300 A.D.2d 984, Motion to appeal denied, 100 N.Y.2d 505

General Municipal Law §207-c provides for the “Payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties.” In contrast, CSL §71, typically referred to as “Workers’ Compensation Leave,” provides for leave without pay in the event an employee is injured in the performance of his or her duties.*

In Olsen v Dormer, 13 Misc 3d 1236(A),** Supreme Court addressed a challenge by a police officer receiving General Municipal Law §207-c benefits to his termination from his position by his employer under color of Civil Service Law §71.

A NYPPL reader, referring to NYPPL’s summary of the Olsen decision, wrote: 

“This is certainly a well constructed position representing a ‘dissent’ with an Appellate Court decision - [Stewart v. County of Albany, 300 A.D.2d 984, 085 (3d Dept. 2002) (‘Upon our review of Civil Service Law § 71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer-even one receiving General Municipal Law §207-c benefits-from the County payroll’)]. While I understand the inviolability of statutory 207-c benefits, an issue arises as to benefits not addressed by the statute, most notably medical insurance. Short of termination, I am not sure by what process an employer would be able to discontinue that fringe benefit. Must the taxpayers continue to foot the bill for family medical insurance coverage ‘forever’ should the employee be unable to return to duty? In practical application my HR consulting firm has been involved in multiple terminations (under CSL §71) of employees on 207-c leave (supported by legal representation) without challenges (thus far.)"

NYPPL's response to the reader's comments concerning Stewart is set out below:

In Stewart v. County of Albany, 300 A.D.2d 984, the Appellate Division said: "Upon our review of Civil Service Law §71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer - even one receiving General Municipal Law §207-c benefits from the County payroll".

NYPPL respectfully disagree with the Appellate Division's views concerning the application of CSL §71 and GML §207-c as set out in Matter of Stewart.

In NYPPL's opinion, an individual receiving §207-c benefits as the result of a work-related disability [and, indeed, GML §207-a with respect to firefighters receiving similar benefits] remains an employee and is continued on the payroll of the appointing authority, albeit in a leave of absence at full pay status, and is not placed simultaneously, or independently, on leave pursuant to §71 of the Civil Service Law.

Further, in NYPPL's view, such an individual is to be continued in such status as an employee until he or she is found medically qualified to return to full duty or "light duty," is retired on disability or otherwise, dies or becomes superannuated for the purposes of §207-c. As the employee is not place on §71 leave, independently or in concert with §207-c, he or she is not subject to removal from his or her position pursuant to §71 of the Civil Service Law after the minimum statutory period permitted by law.

Footnote 2 in Stewart states:

Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably 'to secure a steady, reliable, and adequate work force' (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672),^† i.e., he wanted to hire another correction officer to replace petitioner. However, termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law §207-c, as such benefits 'are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment' (Matter of Gamma v Bloom, 274 AD2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691; Matter of Meehan v County of Tompkins, 219 AD2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty."

^†NB:Neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

While NYPPL agrees with the Appellate Division’s conclusion that the Sheriff "wanted to hire another correction officer to replace petitioner," this does not resolve the underlying issue: the employment status of the individual receiving the §207-c benefit and source of the funds necessary for the compensation to be paid to (1) the replacement and to (2) the individual receiving §207-c benefits upon the appointment of his or her replacement.

Indeed, the relevant language of GML §207-c provides a statutory imperative that the individual involved return to active duty once found medically qualified to do so. Once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

Contrast this with §71, whereby should the employee be terminated and thereafter determined to be qualified to resume the duties of his or her former position and there is no suitable vacancy available at the time, the individual's name is to be placed on a preferred list, and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

In NYPPL's view, the only means available to the appointing authority to lawfully "terminate" an individual in a §207-c leave situation and not qualified for reinstatement to full or light duty is to file an employer application on behalf of the employee for accidental disability retirement or performance of duty disability retirement benefits pursuant to GML §207-c.2  should the employee declines to do so, which decision by the Employees' Retirement System would control as otherwise provided by law.

In contrast, an individual receiving GML §207-c benefits becomes ineligible for such benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444. No such "geographical restriction" is placed on an individual on §71 leave. 

As to the Sheriff's desire to "replace" the individual during the disabled employee’s absence on §207-c leave, he or she may do so by establishing an appropriate "supernumerary position," provided that there are funds available sufficient for this purpose.

Without engaging in an extended analysis of §207-c, suffice it to note that in support of NYPPL's view that the individual remains an employee and is to be continued on the payroll -- i.e., he or she is not terminated and is not paid by means other than via salary or wages, Subdivision 6 of §207-c provides, in pertinent part, as follows:

6. Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and, or, for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party [emphasis supplied].

Accordingly, absent the individual continuing in an "employee status" and continuing to receive his or her "salary or wages" it could be argued that the appointing authority could not maintain a cause of action to recover such payments.

* An employee on §71 leave may elect to remain on the payroll by using his or her accrued leave credits and other accruals and benefits at “full or half-pay” until they are exhausted.

** NYPPL’s summary of Olsen v Dormer, 13 Misc 3d 1236(A), posted on the Internet at http://publicpersonnellaw.blogspot.com/2013/08/termination-of-police-officer-while-on.html

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [e-book] focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information concerning this e-book click on: http://section207.blogspot.com/

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Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Decisions of the Commissioner of Education, Decision #16,985

Leanna Mercedes appealed the decision of the New York City Department of Education [DOE] that sustained her “D” rating on her annual professional performance review.

Mercedes, a probationary assistant principal, was given a Doubtful or “D” rating for the school year by the school’s Interim Acting Principal [Principal]. This resulted in Mercedes filing a complaint with DOE’s Office of Equal Opportunity and Diversity Management (“OEO”) alleging that Principal had unlawfully discriminated against her in giving her a “D” rating. OEO’s investigation substantiated Mercedes’ allegation that Principal had violated DOE’s non-discrimination policy as set out in DOE’s Chancellor’s Regulation A-830.  Notwithstanding OEO’s finding, DOE notified Mercedes that her appeal of her “D” rating was denied.  Mercedes appealed DOE’s decision to the Commissioner of Education.

The Commissioner said that “based on the record before me, I find that [Mercedes] has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and [her] appeal must be sustained.”

Mercedes had contended that the “D” rating [1] “violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence;” [2] the “D” rating was baseless and discriminatory; and [3] the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations. 

In rebuttal, DOE had argued that Mercedes’ petition [1] failed to state a claim upon which relief may be granted; [2] that some or all of her claims may be barred, in whole or in part, by the doctrine of res judicata; and [3] it had followed the “proper procedures” in issuing the “D” rating.

DOE also contended that its “ratings guidelines are not legally binding on the Department and that Mercedes’ “D” rating was supported by documentation.”

After addressing a number of procedural issues that were decided in Mercedes’ favor, the Commissioner noted that the Chancellor’s designee stated in his decision letter that the “D” rating was sustained "as a consequence of insufficient time to make an accurate assessment of [Mercedes’] performance." This explanation, said the Commissioner, lacks a rational basis and was in gross error.

Further, observed the Commissioner, “[t]he record is devoid of any support for [Mercedes] ”D” rating,” noting that the sole reason given for sustaining the rating is that the Interim Acting Principal had “insufficient time to accurately assess Mercedes’ performance.” However, said the Commissioner, the record indicated that despite the Interim Acting Principal’s “short time in that position,” he was able to provide a rating of “satisfactory” to two other male assistant principals. 

In any event, the Commissioner explained that “assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious” and directed DOE to remove the challenged Doubtful “D” rating for the from Mercedes' personnel file.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d16985

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 12, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 12, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Municipal Audits

Town of Cincinnatus – Financial Operations

http://www.osc.state.ny.us/localgov/audits/towns/2016/cincinnatus.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Clarence Fire District – Purchasing

http://www.osc.state.ny.us/localgov/audits/firedists/2016/clarence.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of East Hampton – Budget Review

http://www.osc.state.ny.us/localgov/audits/towns/2016/easthampton_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of Elmira – Audit Follow-Up

http://www.osc.state.ny.us/localgov/audits/towns/2016/elmirafollowup.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of Hancock – Transfer Station Operations

http://www.osc.state.ny.us/localgov/audits/towns/2016/hancock.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Hudson Housing Authority – Board Oversight

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/hudsonhousing.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Ithaca Area Wastewater Treatment Facility – Energy Cost Savings

http://www.osc.state.ny.us/localgov/audits/jointacts/2016/ithacawastewater.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

City of Lockport -- Budget Review

http://www.osc.state.ny.us/localgov/audits/cities/2016/lockport_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Saratoga Youth Recreation – Financial Activities

http://www.osc.state.ny.us/localgov/audits/jointacts/2016/saratogayouth.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

City of Troy – Budget Review

http://www.osc.state.ny.us/localgov/audits/cities/2016/troy_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Vischer Ferry Volunteer Fire Company – Cash Disbursements

http://www.osc.state.ny.us/localgov/audits/firedists/2016/vischerferry.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight 

School District - BOCES Audits 

Depew Union Free School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/depew.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Erie 1 Board of Cooperative Educational Services – Special Aid Fund

http://www.osc.state.ny.us/localgov/audits/schools/2016/erie1boces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Norwood-Norfolk Central School District – Claims Auditing

http://www.osc.state.ny.us/localgov/audits/schools/2016/norwoodnorfolk.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Oceanside Union Free School District – Professional Services

http://www.osc.state.ny.us/localgov/audits/schools/2016/oceanside.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Orange-Ulster Board of Cooperative Educational Services – Fixed Assets

http://www.osc.state.ny.us/localgov/audits/schools/2016/orangeulsterboces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Seaford Union Free School District – Extra-Classroom Activities

http://www.osc.state.ny.us/localgov/audits/schools/2016/seaford.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Sewanhaka Central High School District – Student Fees

http://www.osc.state.ny.us/localgov/audits/schools/2016/sewanhaka.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Village of Hoosick Falls - Health Risks of PFCs

Village of Hoosick Falls - Health Risks of PFCs

Source: NYSBA New York Environmental Lawyer, 36(2):88-111, Fall 2016.

The New York State Bar Association’s New York Environmental Lawyerhas published an article by Dr. Robert A. Michaels entitled Perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York:  health risks and successive approximation toward enforceable national regulation. 

Dr. Michaels notes that “PFCs, most notably PFOA and PFOS found in drinking water in the ppt [parts per trillion] range at which they are toxic, reveal the need for routine monitoring, aggressive cleanup, and promulgation of enforceable regulation to control human exposure, prevent disease, and help to clarify accountability, thereby preventing similar incidents elsewhere.

“In short, PFOA exhibits a ‘perfect storm’ of troubling properties: essentially infinite lifetime in the environment, resistance to human metabolism, bioconcentration in the food chain, transmissibility to infants via breastfeeding, years-long excretion half-time in the human body, and causation of human cancer and non-cancer effects.”

The article is posted on the Internet at:

https://www.researchgate.net/publication/309795741_Perfluoroalkyl_Compounds_PFCs_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York_-_Health_Risks_and_Successive_Approximation_Toward_Enforceable_National_Regulation

Terminating a teacher during his or her probationary period

Terminating a teacher during his or her probationary period

Zarinfar v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 07269, Appellate Division, First Department

As the Court of Appeals held in Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, a probationary teacher is subject to remvcal from his or her position at any time for any reason, or for no reason, without a hearing. Further, a terminated probationary teacher challenging his or her termination has the burden of showing that the termination was in violation of law or for a discriminatory reason or purpose.

Majid Zarinfar, a probationary teacher, was terminated from his position with the New York City Board of Education. Zarinfar, alleging that had attained tenure by estoppel based on his service in the same subject area at a different school under a different license,* filed an Article 78 petition seeking a court order annulling the Board of Education’s decision to terminated his probationary employment and declaring that he had attained tenure by estoppel by reason of his service in another New York City school.

Supreme Court denied his petition, finding that Zarinfar was not entitled “tenure by estoppel” because:

1. Zarinfar’s probationary service under his technology license was found unsatisfactory and was terminated from that position; and

2. Zarinfar had commenced a new probationary period under his mathematics license after his service as a probationary teacher was terminated under his technology license.

The Appellate Division affirmed the lower court’s ruling, noting that “[as Zarinfar] never received tenure, he was subject to termination at any time for any reason without a [pretermination] hearing.”

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

With respect to positions in the Classified Service, where the probationary period is set terms of completing a minimum or a maximum period of probation, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual "is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position" 

N.B. Education Law §3031(a) addresses procedures to be followed when  tenure will  not be  granted to a teacher at conclusion of the  probationary period. The procedure requires that a probationary teacher receive notice of the recommendation that his or her services are to be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered and further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation. The teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting. In some instances a probationary teacher may be offered an "extension of employment as a probationary teacher" in lieu of termination.

* See Education Law §2573[1][a], which, in pertinent part, provides … in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a or section three thousand twenty-b of this chapter, the probationary period shall not exceed two years;

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07269.htm

 

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Suing an employee organization for an alleged breach of its duty of fair representation

Suing an employee organization for an alleged breach of its duty of fair representation

Morton v Mulgrew, 2016 NY Slip Op 07270, Appellate Division, First Department

Dianna Morton, et al. [Plaintiffs] alleged that the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, [Federation] breached the duty of fair representation to individuals in the collective bargaining unit who resigned from their positions after October 31, 2009 and prior to June 3, 2014 as a result of its negotiating and ratifying a collective bargaining agreement that provided for wage increases retroactive to the date the previous agreement expired, October 31, 2009 which including members who had retired, but not those who resigned, after October 31, 2009 and prior to June 3, June 3, 2014.

Supreme Court granted the Federation’s motion to dismiss Plaintiffs’ petition and the Plaintiffs appealed. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that Plaintiffs had noted “the obstacle” to their cause of action in view of the Court of Appeals’ decision in Martin v Curran, 303 NY 276,* but contended the so-called Martin rule was abrogated by the enactment of the Taylor Law in 1967** or by its 1990 amendment codifying the so-called Triboro Doctrine.

In Palladino v CNY Centro, Inc., 23 NY3d 140, explained the Appellate Division, the Court of Appeals noted “this Court held in Martinthat a voluntary unincorporated association ‘is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members’ [and] determined that ‘for better or worse, wisely or otherwise, the Legislature has limited … suits against association officers, whether for breaches of … agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven.’ Although there were policy considerations that might suggest a different result, the Martin Court was ‘under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.’” 

The Palladinocourt also noted that New York is said to be "in the company of a small minority of states that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue,” citing Mitchell H. Rubenstein, Union Immunity from Suit in New York, 2 NYU JL & Bus 641, 649 [summer 2006]. 

* Civil Service Law §200 et seq.

** Martin v Curran did not involve a union member suing his union but was a libel action in which the president of one union sued another union for libeling him in its newspaper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07270.htm

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Meehan v County of Suffolk, 2016 NY Slip Op 07163, Appellate Division, Second Department, [Roslyn I], consolidated with

Meehan v County of Suffolk, 2016 NY Slip Op 07164, Appellate Division, Second Department, [Roslyn II]

These two decisions address questions that resulted when an individual was engaged to perform certain services by a public entity following his of her retirement from that entity.

Roslyn I

Status of the individual – employee or independent contractor?

Roslyn Birnbaum, while driving a car owned by Harvey Birnbaum, was involved in an accident with a vehicle operated by Michelle Meehan in the course of performing certain duties on behalf of Suffolk County and Suffolk’s Child Protective Services [County]. Meehansued the County and the Birnbaums to recover damages, contending that the County was vicariously liable for Roslyn's negligence under the doctrine of “respondeat superior.”*

Contending that Roslyn was an independent contractor rather than its employee,** Supreme Court dismissed Meehan’s complaint insofar as asserted against it and Meehan appealed.

In contrast to an entity being a respondeat superior, the Appellate Division said that the general rule with respect to “an independent contractor” performing services for an entity is that “an employer who hires an independent contractor is not liable for the independent contractor's negligent acts." The court then held that the County had demonstrated a prima facie entitlement to judgment as a matter of law by submitting evidence showing that Roslyn was an independent contractor.

Meehan had the burden of showing that Roslyn was an employee of the County rather than an independent contractor. The court said that Meehan failed to raise a triable issue of fact with respect to her claim that Roslyn was an employee of the County as the only evidence she offered “revealed only minimal or incidental control” over Roslyn by the County and this was insufficient to demonstrate that Roslyn was an employee of the County at the time of the accident.

Significantly, the Appellate Division said that “the fact that some of the duties Roslyn performed as an independent contractor were identical to those she had previously performed as the County employee prior to her retirement from its employ did not convert the relationship between the County and Roslyn into one of employer-employee.

Roslyn II

The Independent Contractor Agreement and insurance

After the accident had occurred, Roslyn and the County executed a "Consultant/Personal Services Contract" [Agreement] for the period January 1, 2010, through December 31, 2010 that included a provision requiring the County to provide insurance coverage for Roslyn.

After the County's motion for summary judgment dismissing the complaint insofar as asserted against it was granted, the Birnbaums commenced a third-party action against the County for a judgment declaring that the County had breached a contractual obligation to procure insurance on behalf of Roslyn. The County asserted that since the consultant agreement was executed after the accident, they were not obligated to provide liability coverage for Roslyn. Ultimately Supreme Court directed that State Farm Insurance Company [State Farm], with which the Birnbaums had automobile and umbrella insurance policies, be joined.

The Appellate Division said that the County, in support of motion, had submitted the consultant agreement. The court said that the insurance procurement provision at issue is incomplete and ambiguous and that “the consultant agreement itself is ambiguous because it contains inconsistent language throughout.”

The court then explained that:

1. “[W]here two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to do so and to give both effect";

2. “[T]he failure to execute the consultant agreement until after the accident does not constitute an "absolute bar" to Roslyn's third-party claims’ and  

Finding that the County’s submissions did not demonstrate, as a matter of law, that it did not breach the terms of the consultant agreement, the Appellate Division held that Supreme Court properly denied that branch of the County’s motion to dismiss the third-party complaint insofar as asserted by Roslyn.

Further, contrary to the Birnbaums' contentions, the Appellate Division ruled that Supreme Court did not err in directing the joinder of State Farm, as State Farm may be inequitably affected by a judgment on Roslyn's third-party claims against the County. In addition, the court noted that Supreme Court “providently exercised its discretion in directing the severance of Roslyn's third-party claims ‘to ensure that no mention of insurance coverage is made during the trial of the main action.’"

* The doctrine of respondeat superior provides that the employer or principal is legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of the employment or agency of the employee or agent.

** The decision is silent with respect to any consideration being given to Civil Service Law §150 and, or, Article 7 of the Retirement and Social Security Law, which address the suspension of pension and annuity of a retiree during public employment. 

The decision in Roslyn I is posted on the Internet at:

 http://www.nycourts.gov/reporter/3dseries/2016/2016_07163.htm

The decision in Roslyn II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07164.htm