Plaintiff's tort claims, claims of violations of the New York City Human Rights Law and allegations that he was forced him to retire from his position dismissed

Plaintiff, a former detective with the New York City Police Department [NYPD], commenced this action against the defendants [Defendants] alleging a number of tort claims and claims under the New York City Human Rights Law and alleged that Defendants' conduct forced him to retire from the NYPD.

Citing General Municipal Law §50-e and Umeh v New York City Health & Hosps. Corp., 205 AD3d 599, the Appellate Division held that Plaintiff's tort claims were properly dismissed as untimely as he failed to file a notice of claim within 90 days of their accrual.

In contrast, the Appellate Division held that Plaintiff "has sufficiently alleged that Defendants failed to accommodate his disability under the New York City Human Rights Law in that his complaint alleges that Defendants were aware of Plaintiff's medical problems after his being hospitalized for COVID-19, but failed to engage him in a good-faith interactive process to assess his needs and consider his request to work from home.

These allegations, said the court, coupled with his allegation that he would have continued working if his request for reasonable accommodation was granted, are sufficient to state a cognizable claim for failure to accommodate his disability under the City's Human Rights Law.

Notwithstanding this, the Appellate Division held that Plaintiff's discrimination claim was properly dismissed, explaining "the complaint fails to allege that 'Plaintiff' was 'treated less well' or 'disadvantaged' because of his disability".

Addressing Plaintiff's retaliation claim, the court said "vague, generalized complaints" about a NYPD physician's treatment of him to an unspecified person or authority do not constitute protected activity nor did Plaintiff allege facts showing that Defendants "took an action that disadvantaged [him]" after his complaining about alleged discriminatory conduct.

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

 

Seeking a recount of the results of a school board election

Petitioner, an unsuccessful candidate for one of five open board seat, sought a vote recount, the voiding of board actions taken after the election if appropriate and the revision of the school district's policies relating to board elections.

The Commissioner held that the appeal must be dismissed for failure to join necessary parties as any person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.

However, said the Commissioner of Education, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner explained that "To invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law".

In contrast, the Commissioner noted that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results, citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947 and  Appeal of Dodson, et al., 54 id., Decision No. 16,764).

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In addition, opined the Commissioner, Petitioner has not established that school district violated any legal requirement or that the act of which she complains affected the outcome of the election.

As to Petitioner’s argument is that the school district improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election, the Commissioner viewed this argument is unavailing as the school district had submitted an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and the tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  

In any event, even assuming that the school district had not extended this invitation, the Commissioner noted it has been previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives, citing Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108 and Appeal of Georges, 45 id. 453, Decision No. 15,380.

In sum, the Commissioner found Petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election. 

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

 

New York State Workers’ Compensation Board webinar series for workers and their advocates

New York State Workers’ Compensation Board continues to offer its webinar its webinar series for workers and their advocates. Workers’ Comp 202: Best Practices to Access Benefits for Workers, A presentation by the Office of the Advocate for Injured Workers, webinars is currently scheduled to be held on Wednesday, December 13, 2023.

The sessions are free and time for questions will be provided.

Wednesday, December 13, 2023
10:00 A.M. - 11:30 A.M.
Register here

Topics include:

• Understanding labor market attachment
• Details on benefit periods and how benefit rates are calculated
• The importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order
• How advocates can help workers and comply with privacy provisions
• The Workers’ Compensation Board’s New York Medical Treatment Guidelines, and more!

 

Employee required to demonstrate his objection to receiving COVID-19 vaccines is based on a sincerely held religious belief

In this challenge to a denial of the employee's [Petitioner] request for a religious exemption from the COVID-19 vaccination requirement for employees of the City of New York, brought pursuant to CPLR Article 78, the Appellate Division unanimously affirmed the Citywide Panel's determination denying the Petitioner's application for the exemption.

The court said the Petitioner had failed to demonstrate that the Citywide Panel's determination was arbitrary and capricious or made in violation of lawful procedure as the Citywide Panel had a rational basis for denying Petitioner's administrative appeal from the denial of his application for a religious exemption from the vaccination requirement, based on the Citywide Panel's findings that: Petitioner:

1. Petitioner failed to establish that his objection to receiving any of the COVID-19 vaccines was based on a sincerely held religious belief, given that he "had no demonstrated history of refusing medications or vaccines" other than declining to receive flu vaccinations for unspecified reasons; and 

2. Petitioner failed to address whether he had "avoided any other vaccines or medications based on the same objection he raised to the COVID-19 vaccines". 

Citing Matter of Marsteller v City of New York, 217 AD3d 543, the Appellate Division noted "It is not dispositive that the Citywide Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in the article 78 proceeding".

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

 

 

New York State's Freedom of Information Law [FOIL] as amended does not limit disclosures

The New York State Legislature repealed Civil Rights Law §50-a* and amended the Freedom of Information Law [FOIL] relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure effective June 12, 2020,.**

Addressing an appeal by Petitioner in a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to FOIL, the Appellate Division noted that Supreme Court's judgment, insofar as appealed from, denied branches of the petition which were to compel the production of the records sought in three Freedom of Information Law requests and, in effect, dismissed that portion of the proceeding.

As to the three FOIL requests at issue in this action, NCPD had withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an "unwarranted invasion of personal privacy" pursuant to Public Officers Law §87(2)(b).

The Appellate Division opined that "records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law §87(2), as mandated by §87(4-a), or as permitted by §87(4-b).

The Appellate Division observed that "By their nature, FOIL requests seek records that were generated prior to the request date." In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, "the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves", citing Matter of Friedman v Rice, 30 NY3d at 478.***

* The former Civil Rights Law §50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct. See Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

** See Chapter 96 of the Laws of 2020.

*** There are statutory prohibitions to public disclosure of certain public records. Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory limitations. 

Click HERE to access the full text of the Appellate Division's analysis and decision posted on the Internet.

 

Selected judicial decisions posted on the Internet during the week ending December 1, 2023 posted on the Internet

ANTHONY SANDERS, ET AL V. COUNTY OF VENTURA Civil Rights, Labor and Employment Law US Court of Appeals for the Ninth Circuit 

 

Cities Management, Inc. v. Commissioner of Revenue Business Law, Constitutional Law, Government and Administrative Law, Tax Law Minnesota Supreme Court

 

Gray v. Hawthorn Children's Psychiatric Hospital Government and  Administrative Law, Labor & Employment Law, Personal Injury Supreme Court of Missouri

 

Harper v. Springfield Rehab & Health Care Center Government & Administrative Law, Labor & Employment Law, Personal Injury Supreme Court of Missouri

 

Hart v. Illinois State Police Government & Administrative Law Supreme Court of Illinois

 

Highroller Transportation, LLC v. Nev. Transportation Authority Government & Administrative Law, Transportation Law Supreme Court of Nevada

 

Jones v. Regents of the University of California Labor and Employment Law, Personal Injury California Courts of Appeal

 

League of Women Voters of Ohio v. Ohio Redistricting Comm'n Constitutional Law, Election Law, Government and Administrative Law Supreme Court of Ohio

 

Matter of Didier Constitutional Law, Government and Administrative Law North Dakota Supreme Court

 

Mellowitz v. Ball State University Contracts, Education Law, Health Law Supreme Court of Indiana

 

Singh v. Garland Government & Administrative Law, Immigration Law US Court of Appeals for the First Circuit

 

State ex rel. Ames v. Ondrey Government and Administrative Law Supreme Court of Ohio

 

State ex rel. Block v. Industrial Commission of Ohio Government & Administrative Law, Labor and Employment Law, Personal Injury Supreme Court of Ohio

 

State ex rel. Clark v. Ohio Dep't of Rehabilitation & Correction Criminal Law, Government and Administrative Law Supreme Court of Ohio

 

Stufkosky v. Department of Transportation Government and Administrative Law, Personal Injury, Products Liability California Courts of Appeal

 

Thomas v. The Regents of the University of California Education Law, Entertainment and Sports Law, Personal Injury

 

 

Counting provisional service towards completing probation upon permanent appointment to the position subject of The New York State Department of Civil Service's General Information Bulletin 23-04

On November 30, 2023, Jessica Rowe, the New York State Department of Civil Service's Director of Staffing Services, advised Department and Agency Directors of Human Resources, Personnel and Affirmative Action Officers, Equal Opportunity Specialists, Diversity and Inclusion Specialists as follows:

"On September 7, 2023, Governor Kathy Hochul signed Chapter 356 of the laws of 2023. This Chapter amends subdivision (1) of Civil Service Law (CSL) section 63, entitled 'Probationary term,' to include the following language:

"This statute requires that on or after September 7, 2023, any employee serving provisionally in a title that receives a permanent appointment immediately following the provisional service to the same title shall have all actual service time in provisional status counted towards completing the required probationary period as set forth in Title 4, Chapter 1 of the Rules for the Classified Service (4NYCRR)*. All provisional service that meets such criteria shall be credited regardless of when the qualifying provisional service first began. This change to the law does not impact individuals who served provisionally and were permanently appointed to the same title before September 7, 2023.

"This statue applies only to provisional employees appointed in accordance with section 65 of the CSL and does not apply to employees appointed in temporary status in accordance with section 64 of CSL. Provisionals who have their status changed to “temporary revocation” upon eligible list establishment shall have such service considered as provisional service for the purposes of meeting the requirements of CSL section 63."

The text of General Information Bulletin 23-04 is posted on the Internet at: https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB23-04.cfm

* N.B. Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.