Requirements for stating a justiciable claim alleging the employer intentionally inflicted emotional distress on the distressed employee

The motion court denied the complaint's [Plaintiff] motion for leave to amend his complaint alleging unlawful employment retaliation in violation of Not-For-Profit Corporation Law §715-b by adding claims alleging "intentional infliction of emotional distress" among others.

Sustaining the Supreme Court's decision, the Appellate Division explained that to state a claim for intentional infliction of emotional distress in such an action a party must allege:

1. "extreme and outrageous conduct;

2. an "intent to cause, or disregard of a substantial probability of causing, severe emotional distress;

3. "a causal connection between the conduct and injury; and

4. "severe emotional distress."

Citing 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49, the court said that "Whether the requisite 'outrageousness of the conduct' has been satisfied by the petitioner's allegations is, in the first instance, an issue of law for judicial determination."

In this instance, said the Appellate Division, although Plaintiff alleged, "in a conclusory fashion that the defendants [Respondents] engaged in a pattern of harassment that caused Plaintiff to suffer from anxiety and stress that eventually led to a serious cardiac event," it found that Plaintiff's allegations of abusive conduct directed at him in the context of his employment "do not rise to the level of outrageousness required to state a claim."

Further, opined the Appellate Division, Plaintiff's proposed amendment did not allege facts establishing that Plaintiff had an "imminent apprehension of harmful or offensive contact" to support a claim for assault.

The Appellate Division also addressed a "new claim for standard negligence" in the proposed amended complaint and opined that it "fails to allege with the requisite specificity that the [Respondent] board members acted with gross negligence in the training and supervision of [Plaintiff's supervisor] nor did Plaintiff present any specific allegations that the [Respondent] board members "acted intentionally."

Accordingly, the court found that Plaintiff's negligence claim was barred by the qualified immunity defense available to uncompensated board members under §720-a of the Not-For-Profit Corporation Law.

Click HERE to access the Appellate Division's decision

Appealing the termination of a probationary teacher

In this appeal to the New York State Commissioner of Education a probationary teacher [Petitioner] challenged her termination from her position with the New York City Department of Education's [DOE]. 

The Commissioner sustained DOE's termination of the Petitioner, observing that "[e]ven if the appeal were not dismissed as untimely, it would be dismissed on the merits."

The Commissioner explained that pursuant to its authority under Education Law §2573(1)(a), DOE may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith,” citing Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.

Further, the Commissioner's decision notes that the petitioner has the burden of:

[1] demonstrating a clear legal right to the relief requested; and 

[2] establishing the facts upon which he or she seeks relief in his or her appeal to the Commissioner of Education.

In this instance the Commissioner found that Petitioner has "neither alleged nor proven that her discontinuance was for a constitutionally impermissible reason or that it violated any statute."  Rather, said the Commissioner, Petitioner suggests that DOE acted in bad faith insofar as her discontinuance was the result of the principal’s personal animus toward her but offers no competent proof of this contention other than her own assertions.

DOE generally denied Petitioner’s allegations and submit numerous annual professional performance review [APPR] reports supporting their position that Petitioner’s discontinuance was based on the many “developing” and “ineffective” ratings that she received throughout the school years she served as a probationary teacher. 

Although Petitioner suggested that such feedback was insufficient and that her school administrators did not adequately address various challenges she faced during her probationary service, the Commissioner held that such assertions fail to render DOE's discontinuance of her probationary service impermissible.

Additionally, observed the Commissioner, Petitioner’s assertion that the APPR ratings she received lack a reasonable justification does not provide a basis to annul her discontinuance and reinstate her to a teaching position. 

The Commissioner's decision cited Education Law §3012-c, which section sets forth the procedures and requirements applicable to APPR ratings, provides that “nothing in this section shall be construed to affect the unfettered statutory right of a school district ... to terminate a probationary teacher ... for any statutorily and constitutionally permissible reason.” Accordingly, said the Commissioner, Petitioner’s objection to her APPR ratings is insufficient to establish her entitlement to the relief she requested. 

Addressing Petitioner's request the DOE be directed "to implement a regulation, policy, or procedure” requiring the superintendent to speak with a probationary teacher prior to discontinuance, the Commissioner said that Petitioner had failed to set forth an adequate basis for such relief.  

The Commissioner noted that the record reflected that Petitioner received ample notice that she may be discontinued from her position; that the superintendent’s initial letter invited Petitioner to submit a response; that Petitioner did, in fact, respond to the superintendent’s letter; and that the superintendent considered Petitioner’s response prior to rendering her final determination.  

Accordingly, the Commissioner said that she decline to compel DOE to implement a new procedure, beyond the requirements of Education Law §2573, obligating the superintendent to communicate with a probationary teacher in person or by telephone. 

Opining that Petitioner has failed to carry her burden of proving that DOE discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith, the Commissioner dismissed Petitioner's appeal.

Click HERE to access the full text of the Commissioner's decision.

 

New York City Emergency Executive Order 240 issued September 14, 2021

Emergency Executive Order 240 issued in response to Hurricane Ida

Download Emergency Executive Order 240

Employee serving a disciplinary probation period challenging his dismissal is required to show that his termination from employment was made in bad faith

Supreme Court rejected the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking to annul the New York Police Department's [NYPD] decision to terminate his employment while he was serving "on dismissal probation." Plaintiff contended that the termination of his employment as a police officer was made in bad faith in an effort "to frustrate his application for Accidental Disability Retirement [ADR] benefits".*

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Plaintiff, said the court, "failed to demonstrate that [NYPD] dismissed him in bad faith," noting that Plaintiff's dismissal was recommended after ADR benefits had been denied him. 

Further, opined the court, any delays in Plaintiff's dismissal were explained by the investigation undertaken by NYPD, which took months to complete.

*  Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

Click HERE to access the Appellate Division's decision.

Using a public office or position of trust for personal gain or advantage

In a press release dated September 10, 2021 captioned Corrupt Orange County IDA officials ordered to repay over $1 million, New York State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that three former officials of the Orange County Industrial Development Agency [IDA], who pleaded guilty in June to corruption charges, including hiding self-dealing and concealing conflicts of interest, were to pay more than $1 million in restitution.  Orange County Court Judge Robert Prisco presided over the sentencing.

Vincent Cozzolino was sentenced to five years probation and on September 10, 2021 paid $1 million in restitution for his conviction of Corrupting the Government in the third degree, a class D felony. Also on September 10, 2021, Laurie Villasuso paid $175,000 in restitution based on her conviction of Corrupting the Government in the fourth degree, a class E felony.

Edward Diana was sentenced upon his conviction of two counts of Offering a False Instrument for Filing in the second degree and one count of Engaging Prohibited Conflict of Interest, both class A misdemeanors. On September 10, 2021, the former county executive paid full restitution in the amount of $90,000.

Comptroller DiNapoli and D.A. Hoovler also released a report detailing the defendants’ crimes and how the systemic failures and neglect of duty by the IDA board and its officials enabled their scheme. 

Click HEREto access this 91 page publication.

The practice of using a public office or position of trust for personal gain or advantage is sometimes referred to as "Jobbery."

The press release reported:

 1. The investigation revealed that former IDA Managing Director Cozzolino entered into a series of contracts (funneled through his company, Galileo Technology Group) with the IDA with vague and seemingly overlapping responsibilities affording him complete control of the Accelerator Program;

2. To further cement his power and despite blatant conflicts of interest, former CEO Villasuso and former board member and Accelerator Committee Chair Diana, were “hired” by Cozzolino’s private company, which received millions in payment from the IDA. Villasuso and Diana were the two IDA officials primarily charged with overseeing the Accelerator program.  Diana admitted to receiving $90,000 in payments from Cozzolino’s firm for merely attending 20 meetings and “a couple” of phone calls;

3. The IDA’s board abdicated its fiduciary duty and acted as a mere rubber stamp for Cozzolino which he exploited for his personal gain and the enrichment of his co-conspirators; and 

4. The IDA board failed to review contracts, invoices or engage in any meaningful oversight which may have exposed the malfeasance. 

Comptroller DiNapoli and District Attorney Hoovler issued a number of recommendations in the report for the new board to implement and to ensure effective review and to promote enhanced IDA governance. 

This investigation was conducted in partnership between the Office of the State Comptroller’s Division of Investigations, the Orange County District Attorney’s Office and the Town of New Windsor Police Department.

Information concerning New York State's Productivity Enhancement Program for 2021 is now available

On Friday, September 10, 2021, Jessica Rowe, Director of Staffing Services, New York State Department of Civil Service, distributed §26.3 of New York State's Attendance and Leave Policy Bulletin 2021--02 addressing the Productivity Enhancement Program [PEP] for 2021. 

PEP permits eligible employees of the State as the employer in the Executive Branch of government represented by the Public Employees Federation [PEF] to exchange previously accrued annual leave [vacation] and, or, personal leave credits in return for a credit to be applied toward their employee share of New York State Health Insurance Plan [NYSHIP] premiums. For 2021, the prorated PEP credit will be credited among the State paydays that fall between September 29, 2021 and December 22, 2021. 

Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program are provided below.

N.B. The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

Ms. Rowe said:

"The starting and ending dates of the PEP Program for 2021 are detailed in the Program Description.  The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

"Implementation of the program will require action on the part of agency personnel officers, agency timekeepers, and agency health benefits administrators (HBAs).  Specifically, agency personnel officers will be responsible for (1) providing interested employees with program descriptions and enrollment forms; (2) verifying employee eligibility to participate; and (3) notifying timekeepers and health benefits administrators of participant enrollments and separations from service.  Agency timekeepers will be responsible for adjusting the vacation and/or personal leave balances of participants upon enrollment. 

"HBAs are responsible for processing the Health Insurance Premium Contribution Credit (HIPCC) for PEP enrollees.  The Employee Benefits Division will be issuing a separate document with specific instructions for HBAs.  Questions regarding health insurance transactions should be directed to your agency’s processor in the Employee Benefits Division by calling the HBA Help Line at (518) 474-2780."

Below are the Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program:

PEP Program Description

Enrollment Form

Address questions regarding employee eligibility and leave transactions to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.

 

An individual whose Freedom of Information request for public records was denied exhausts administrative remdies by sending a timely objection to the denial to the chief executive or his designee

 

In this CPLR Article 78 proceeding to compel a public entity to comply with petitioners' [Plaintiff's] requests pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6), the custodian of the records [Custodian] appealed Supreme Court's judgment that determined that Plaintiffs had "substantially prevailed in the proceeding" and awarded Plaintiffs attorney fees and costs. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The court said it concluded that Plaintiff had properly brought this proceeding after the Custodian [1] failed to meet its anticipated date for producing documents in response to one of petitioners' FOIL requests and [2] ignored petitioners' additional FOIL requests.

The Appellate Division then rejected the Custodian's claim that the Plaintiffs failed to exhaust their administrative remedies prior to commencing their Article 78 action, explaining that §89[4][a] of the  Public Officers Law provides that "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body." In the instant matter, said the court, Plaintiffs had exhausted their administrative remedies by sending timely letters to the Custodian objecting to its denial of their requests and asking the Custodian to consider their letter "appeals pursuant to Public Officers Law §89(4)(a)."

As to the Custodian's objection to Supreme Court's awarding Plaintiffs attorney's fees, arguing that "they did not 'substantially' prevail within the meaning of FOIL's fee-shifting provision," the Appellate Division opined that Plaintiffs "received a complete response to their requests only after commencing the instant proceeding," and saw no reason "to disturb Supreme Court's award of attorney's fees and costs."

Click HERE to access the Appellate Division's decision.