Commissioner of Education dismissed an application seeking the removal of an individual from a board of education after finding the application "moot"

 The Board of Education [Board] petitioned the Commissioner of Education seeking to remove the President and member of the Board. The Commissioner denied the application as "moot". 

The Commissioner's decision explained that the Commissioner "will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances" or where the Commissioner "can no longer award a petitioner meaningful relief ...."

The Board conceded that the individual it sought to have the Commissioner remove had resigned from the position and that an appointment had been made to the then vacant position. Accordingly, the Commissioner found that the Board's application "was moot and must be denied."

Although the Board contended that the matter was not moot, the Commissioner, citing Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718, found that the Board had not met its burden to demonstrate the matter "fits within an exception to the mootness doctrine."

The staff of FindLaw has posted an item captioned Exceptions to the Mootness Doctrine on the Internet at https://constitution.findlaw.com/article3/exceptions-to-the-mootness-doctrine.html, which was last reviewed by Renee Guolee, J.D. July 15, 2022.

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

 

New York State's State Comptroller raises concerns about local governments missing critical deadlines and not filing required financial information

On March 27, 23024, New York State Comptroller Thomas P. DiNapoli announced that six villages were designated in fiscal stress under the Fiscal Stress Monitoring System (FSMS). DiNapoli’s office evaluated all non-calendar year local governments and designated one village in “significant fiscal stress,” one in “moderate fiscal stress,” and four as “susceptible to fiscal stress.”

The following items are also posted on the Internet. Click on the text highlighted in color to access a particular report.

 

List of Villages and Cities in Fiscal Stress - Municipalities in Fiscal Stress

 

List of Villages and Cities that Failed to File Financial Information - Municipalities that Failed to File or Inconclusive List

 

Complete List of Fiscal Stress Scores - Data Files

 

FSMS Search Tool - Tool

 

Injury sustained by a police officer participating in a training exercise ruled not an accident for the purpose of eligibility for accidental disability retirement benefits

A police officer [Petitioner] filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to injuries sustained in an incident when he fell while engaged in a training exercise at the police academy. His application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363. Following a hearing for re-determination, a Hearing Officer [HO] denied the application, concluding that the incident occurred during a training program that was an ordinary part of Petitioner's job duties and a normal risk of those duties and, as such, was not an accident for purposes of accidental disability retirement benefits.

The Comptroller sustained the HO's decision, adopting the HO's findings and conclusions of law. Petitioner initiates a CPLR Article 78 proceeding challenging the Comptroller's determination.

Noting that for purposes of the Retirement and Social Security Law an accident is "defined as a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact", the Appellate Division explained that under settled law, "an incident is not an accident within the meaning of the Retirement and Social Security Law where the underlying injuries result from an expected or foreseeable event arising during the performance of routine employment duties or occur during the course of a training program constituting an ordinary part of the employee's job duties and the normal risks arising therefrom". 

Further, said the Court, the petitioner has the burden to establish that the event producing the injury was accidental in nature, and the Comptroller's determination will be upheld where it is supported by substantial evidence.

Here Petitioner was participating in a "simulated training exercise" that required him to dismount from a moving bicycle and then run on foot to chase an instructor acting as a fleeing "suspect." During the exercise, Petitioner lost his balance and fell on his knee, causing injuries. Further, Petitioner confirmed "the bicycle was not defective and that he did not hit anything while riding the bicycle and did not slip or trip on anything while attempting to dismount."

Noting that "Pursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer", the Appellate Division opined that Petitioner's job duties included on-the-job training in law enforcement techniques and Petitioner acknowledged that his duties as part of the unit to which he was assigned included bicycle training.

Citing Matter of Marsala v New York State & Local Employees' Retirement Sys., 14 AD3d 984, the Appellate Division observed that it had "previously recognized in comparable scenarios, incidents in which injuries are sustained while participating in a training exercise as part of routine job duties and involving normal risks related thereto, including police officers injured while practicing running dismounts during bicycle patrol training, do not constitute accidents for purposes of eligibility for accidental disability retirement benefits."

Finding that substantial evidence supported the Comptroller's determination, the Appellate Division said "it will not be disturbed".

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

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Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

On March 25, 2024, the New York State Department of Civil Service posted Attendance and Leave Advisory Memoranda 2024-01 and 2024-02 on the Internet

The Department of Civil Service [DCS] published the following Advisory Memoranda:

Advisory Memorandum 2024-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Advisory Memorandum 2024-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2024

 

If you wish to print these Memoranda, DCS offer a version in PDF format at:

https://www.cs.ny.gov/attendance_leave/AM2024-01Combined.pdf; and 

https://www.cs.ny.gov/attendance_leave/AM2024-02.pdf

 

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

Demanding a trial by jury in the course of seeking to recover damages for alleged discrimination in employment

As relevant here,* Plaintiff commenced this action against the New York City Transit Authority and two of its employees [Defendants] to recover damages for discrimination in hiring and discrimination in promotion. 

Plaintiff made a demand for a jury trial. Defendants moved to strike the demand, contending that Plaintiff waived her right to a jury trial by joining claims for legal and equitable relief. 

Supreme Court granted the Defendants' motion to strike the Plaintiff's demand for a jury trial. Plaintiff appealed the Supreme Court's decision.

The Appellate Division reversed the Supreme Court's granting Defendant's motion, noting that CPLR §4101(1) provides, in pertinent part, that "issues of fact shall be tried by a jury, unless a jury trial is waived," in any action "in which a party demands and sets forth facts which would permit a judgment for a sum of money only."  

The Appellate Division's decision, stating that the "deliberate joinder of claims for legal and equitable relief arising out of the same transaction" may constitute a waiver of the right to a jury trial but the right to a jury trial must be determined by the facts alleged in the complaint and not by the prayer for relief. Citing Hebranko v Bioline Labs., the Appellate Division explained "[w]here a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint's prayer for relief will not constitute a waiver of the right to a jury trial". In other words, "[a] jury trial will not be waived if the equitable relief sought by the plaintiff is "incidental to [his or her] demand for money damages".

In this action Plaintiff sought to recover damages for employment discrimination. Accordingly, said the Appellate Division, the action is essentially legal, and even though the prayer for relief in the complaint contains demands for equitable relief, only an award of monetary damages would afford Plaintiff a full and complete remedy. Accordingly, the Supreme Court should have denied the Defendants' motion to strike Plaintiff's jury demand.

* For factual background of this appeal see Blackman v Metropolitan Tr. Auth. (206 AD3d 602.

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

 

Court resolves an ambiguity created by the custodian of records sought pursuant to a Freedom of Information Law request against the custodian

Below is the decision of the Appellate Division in In the Matter of Portfolio Media, Inc., Appellant, v New York State Office of Court Administration, Respondent, 2024 NY Slip Op 01523, addressing an agency's partial denial of a request for records in accordance with the Freedom of Information Law  

"Order, Supreme Court, New York County (Lisa S. Headly, J.), entered August 28, 2023, which granted respondent's cross-motion to dismiss as untimely the petition challenging the agency's partial denial of a request for records in accordance with the Freedom of Information Law (FOIL), and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the motion denied, and the petition reinstated.

"On April 11, 2022, petitioner submitted a FOIL request to the Office of Court Administration (OCA). OCA did not respond to the request within five business days, thus constructively denying the request (Public Officers Law § 89[3][a]). As a result, on May 13, 2022, petitioner sent an email stating that it was appealing OCA's constructive denial, and on May 27, 2022, OCA constructively denied that appeal by failing to respond within the 10 business days permitted under Public Officers Law § 89(4)(b). On June 16, 2022 and August 5, 2022, OCA's substantively denied the FOIL request, noting that under Public Officers Law § 89(4)(a), petitioner had 30 days to take a written appeal of that determination. OCA also responded on June 23, 2022 to the initial May 13 appeal, stating that its June 16 response to the FOIL request rendered the appeal moot. That same day, June 23, petitioner sent a letter to OCA appealing the June 16 substantive denial. OCA ultimately produced certain documents on July 27, 2022, but petitioner took the position that the production was incomplete and commenced this article 78 proceeding on November 8, 2022.

"Ordinarily, a FOIL requester's statutory remedy for an untimely response is to deem the response a denial and begin a CPLR article 78 proceeding (Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405, 406 [1st Dept 2013], lv dismissed 21 NY3d 930 [2013], lv denied 22 NY3d 854 [2013]). In that case, the four-month limitations period to challenge OCA's determination would have begun on May 27, 2022, when the statutorily mandated 10-day period to respond to the appeal expired (Matter of Jewish Press, Inc. v New York City Dept of Hous. Preserv. & Dev., 193 AD3d 483, 483 [1st Dept 2021], lv denied 37 NY3d 908 [2021]).

"However, OCA's ongoing consideration of the request created an ambiguity and the impression of nonfinality regarding its May 27 constructive denial (see Matter of Burch v New York City Health and Hosps. Corp., 118 AD3d 454, 454 [1st Dept 2014]). Twice, on June 16 and August 5, 2022, OCA issued substantive rulings on the FOIL request, stating that petitioner had 30 days to take a written appeal of the determination. OCA's treatment of its May 27 constructive denial as a final agency determination is inconsistent with its statements notifying petitioner that it had opportunities for further administrative appeals (see Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). Thus, petitioner was justified in pursuing the administrative [*2]appeals that OCA appeared to offer rather than commencing what would have been a timely article 78 proceeding.

"OCA created further doubt about the finality of its May 27 constructive denial when it wrote in its June 23, 2022 email that its substantive response to the FOIL request rendered the appeal of the constructive denial moot and issued a ruling on petitioner's appeal. OCA's contention that petitioner's May 13, 2022 appeal was denied with finality on May 27 is incompatible with its later characterization of that appeal as moot. Similarly, the July 27, 2022 production letter from OCA stated that OCA was producing records in response to petitioner's FOIL request, which, according to OCA, had been "remanded back . . . in response" to petitioner's appeal. Petitioner was justified in its understanding that its request had not been denied with finality on May 27, as it could not have been both conclusively denied and simultaneously "remanded back . . . in response" to petitioner's June 23, 2022 appeal.

"Because OCA created an ambiguity, it is resolved against the agency, and the petition is deemed timely (see Matter of Burch v New York City Health and Hosps. Corp., 118 AD3d 454 [1st Dept 2014]; see also Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604, 606 [2d Dept 2001]).

"THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

"ENTERED: March 19, 2024."

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

 

NYPPL e-books concerning laws, rules, regulations, policies, provisions in collective bargaining agreements and court and administrative decisions addressing the employment of individuals in the public service of New York State and its political subdivisions published by BookLocker, Inc.

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html

 

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

 

The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

 

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

N.B. New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.