ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 05, 2012

A tentative collective bargaining agreement between the State and Council 82 Supervisors Unit announced


A tentative collective bargaining agreement between the State and Council 82 Supervisors Unit announced
Source: Office of the Governor

On April 5, 2012 Governor Andrew M. Cuomo and Council 82 Executive Director James Lyman announced a tentative contract agreement between the State and Council 82 Supervisors Unit.

The tentative contract, which is subject to ratification by unit members includes zero percent wage increases for 2011-2013 and ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% general salary increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

The agreement follows the pattern of contracts negotiated over the past year and includes:

> A zero percent wage increases for 2011-2013; a 2% increase in both 2014 and 2015.

> The agreement includes 3% and 4% wage increases for 2009-2011; same pattern as other units that have completed negotiations for a new agreement. These increases were previously reserved for in the state financial plan.

> A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year.

> Deficit Reduction Leave (DRL) totaling nine days, saving $2.3 million. The total deduction for the days comes from the "retro pay for 2009-11."

> Employees will be repaid the value of 4 DRL days in equal installments starting at the end of the contract term.

> Retroactive payments that are scheduled to be paid in one payment this fiscal year.

· A six percent increase for health insurance premiums, making the employee share 16% for individuals and 31% for family premiums.

> A health plan opt-out so officers can opt-out through a spouse/partner to a non-State health plan.

> Members will receive broad layoff protection. However, workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

COLA pension increases affect Section 207-a retirement benefits


COLA pension increases affect Section 207-a retirement benefits
Wise v Jennings, 290 AD2d 702, 703, lv denied 97 NY2d 612

Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement.

The amount of the supplement: the difference between their retirement allowance and the amount that they would have earned as active firefighters had they not retired for disability, including adjustments for negotiated salary increases.

When the legislature provided for an automatic cost of living adjustment [COLA] to retirees, including those retired for accidental or service connected disability, the City of Albany advised its retirees receiving Section 207-a supplements that it would recompute and reduce their supplements to reflect the increase they received as a result of the COLA adjustment. William Wise, a retired City of Albany firefighter and President of the Albany Permanent Professional Firefighters Retirees' Association, sued the City contending that the City could not withholding any portion of the supplemental income payments as an adjustment for the amount that they receive as a COLA increase. A Supreme Court justice dismissed Wise's petition and he appealed.

Pointing out that General Municipal Law Section 207-a was intended only to affect the source, not the amount, of payments made to disabled firefighters, the Appellate Division affirmed the lower court's ruling.

The Appellate Division said that COLA's legislative history demonstrates that it constituted a clear policy directive to offset the negative effects of inflation experienced by public retirees whose pension benefits were eroded as a result of annual increases in the cost of living without commensurate increases in benefits. Accordingly, the court reasoned, "[a]s a clear pension supplement, we agree that since the payment of the adjustment is dependent upon the right to receive a disability retirement allowance, the COLA adjustment must be found to be generated through that income stream."

As Section 207-a only permits the employer to supplement the "difference between the amounts received under such allowance or pension and the amount of the firefighters' regular salary or wages [had he or she remained an active firefighter]," the deduction of an amount equal to the COLA adjustment from the firefighters' Section 207-a supplement was proper. This determination, said the court, is consistent with the underpinnings of Section 207-a, which is to ensure that permanently disabled firefighters receive an amount equal to that of active firefighters holding the same position and rank with only the income source and not the amount affected.

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Allegations of defamation of the employee follow postings made on the employer's web site


Allegations of defamation of the employee follow postings made on the employer's web site 

Firth v State of New York, NYS Court of Appeals, 98 NY2d 365

From time to time, an employee will sue his or her public employer contending that he or she was defamed because of the employer's dissemination of information concerning his or her performance of official duties that the individual considers demeaning or embarrassing.

Among the most common "defamation" claims are those involving an individual alleging that internal communications between administrators or between an employee and an administrator or a third party concerning the worker contains libelous or defamatory statements.*

As a general rule, unless the individual is able to demonstrate "publication" and prove "malice," the courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."

The electronic age has provided an additional potential source of litigation based on allegations that the publication of certain information constitutes libel.

Many public jurisdictions maintain a "web-site" to disseminate information to the public. The Firth decision concerns a situation where placing a report critical of an individual resulted in the individual suing the public entity for defamation.

George Firth, formerly employed by the New York State Department of Environmental Conservation as its Director of the Division of Law Enforcement, sued the State, alleging that it defamed him when it placed a report issued by the Office of the State Inspector General critical of Firth's managerial style and the procedures he used in procuring weapons for the agency on State-maintained web-sites available to the public.

At a press conference, the Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized. On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

The court's conclusion: the single publication rule is applicable to allegedly defamatory statements that are posted on an Internet site and an unrelated modification of information displayed in another part of the same Web site does not constitute a republication for the purpose of determining the one-year statute of limitations for defamation actions set out in Section 215(13) of the Civil Practice Law and Rules.

In effect, the statute of limitations begins to run when the statement alleged to have disparaged the individual is first made available on the Internet.

Although "republication" will "retrigger" the running of the statute of limitations, the Court of Appeals ruled that "[t]he mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter" as a separate publication.

Consider another aspect of the electronic distribution of information electronically -- the use of E-mail as a vehicle for transmitting statements alleged to disparage an individual. This issue was not addressed by the court in the Firth decision.

Clearly the date on which the E-mail was initially transmitted would trigger the running of the statute of limitations in such cases. But what is the effect of the "forwarding" of E-mail?

Will the courts consider "forwarding" an E-mail by the recipient to another individual to be a "republication" for the purposes of determining the timeliness of an action? Still another element to consider -- may the "forwarder" be sued for the alleged libel?

If the courts deem each "forwarding" [and, perhaps, the "forwarder"] of an E-mail to be an independent and unique "republication" for the purposes of determining the running of the statute of limitations and liability, it may be that alleged disparagement by E-mail may never become stale insofar as bringing a viable law suit is concerned. Undoubtedly these issues will be presented to the courts for resolution because of the proliferation electronic communication and dissemination of information in the workplace.

* Murphy v Herfort140 A.D.2d 415, is an example of litigation resulting from communications between administrators while Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. Allegations of defamation may arise following an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

April 04, 2012

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position


Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position
Lutz v Krokoff, 2012 NY Slip Op 22083, Supreme Court, Albany County, Justice Michael C. Lynch

An Albany, New York police officer’s driver’s license was revoked as the result of an off-duty incident.

The Chief of Police wrote the officer indicating that possession of a valid driver’s license “is a minimum qualification for [a] Police Officer in the City of Albany” and offered him “the opportunity to present ...written documentation regarding the status of [his] license.…” The officer told the Chief that his driver's license was "currently suspended pending prosecution and revoked ... but that he had filed a “Notice of Appeal.”

Chief Krokoff terminated the police officer from his position "effective immediately" explaining:

“In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.”

The officer sued, contending that the Chief’s determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and capricious. The officer also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".

Addressing the issue of “due process,” the court said that “A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligible or unqualified for continued employment,” citing New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 and Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498.

Justice Lynch, referring to Felix, commented that in that case the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e.the failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct.

Only action in the nature of discipline is subject to pre-termination review pursuant to the Civil Service Law or a similar law, or a disciplinary procedure set out in a collective bargaining agreement. 

In contrast, where an individual is required by law to posses a valid license or “professional certification” in order to lawfully perform the duties of the position was the individual’s failure to produce evidence of his or her possession of the required license or certification meant that he or she was not qualified to hold the position rather than “incompetent,” in a pejorative sense, to perform the duties of the position.*

In this instance, said the court, the issue was whether Chief Krokoff's determination to summarily terminate the police officer based on his failure to posses a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The question presented here did not implicate issues concerning the police officer’s performing the duties of his job satisfactorily or allegations of misconduct or competency. Rather, the police officer's ability “to operate a vehicle legally (i.e. with a valid license) is “a defined standard that is not related to job performance.” Justice Lynch concluded that once an officer loses his or her driver’s license, he or she is no longer able to perform the duties of his or her job lawfully. Whether that officer has engaged in misconduct or failed to competently perform such duties was not at issue.

In Justice Lynch’s view, the maintenance of a valid driver's license was a qualification for employment as a police officer in the City of Albany. As such, the Chief's decision to terminate the police officer without a hearing because he was unable to produce evidence of having a valid driver’s license was not arbitrary, capricious, contrary to law or a violation of due process.

As to the police officer’s claim of “disparate treatment” because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ... for the failure to possess a valid New York State driver's license," the court noted that Chief Krokoff had indicated that “since he became Chief of Police … no other police officer has been similarly situated to [the police officer] insofar as not having a valid driver's license" and the officer “has not demonstrated otherwise.”

Justice Lynch denied the police officer’s petition and dismissed his complaint.

* In Martin ex rel Lekkas, 86 AD2d 712, the appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. However, Lekkas served in an administrative capacity and did not practice medicine. The court held that only where the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22083.htm

Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties


Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties
DiBattista v County of Westchester, 35 Misc3d 1205

The action involved some 1,600 individuals who retired from Westchester County as their employer between 1993 and 2004.

Between 1993 and 2001, two collective bargaining agreements were executed between CSEA and Westchester County. These agreements, among other things, provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made.

The 2004 agreement changed the health benefits available to active employees and Westchester County decided that such changes should also be imposed on its then retired employees. The County indicated that it had been its policy to treat retirees the same as active employees whenever a new collective bargaining agreement negotiated.

The retired employees sued, contending the County could not modify their health insurance benefits to reflect the benefits it and CSEA had negotiated on behalf of active employees in the collective bargaining unit when such modification resulted in an increase in their medical and health insurance costs.

Justice Lefkowitz agreed, ruling:

1. “Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining;

2. “Vested retirement rights may not be altered without the pensioner's consent;

3. “Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits 'it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations';

4. “Retiree benefits 'carry with them an inference that they continue so long as the prerequisite status is maintained'; and

5. “This inference trumps any general duration clause as to the life or termination of the agreement.”

Deciding in favor of the retirees, Justice Lefkowitz held that the retirees’ health insurance benefits set out in the prior collective bargaining agreements survived the 2004 negotiated agreement and could not be modified without their consent, citing Hudock v. Village of Endicott, 28 AD3rd 923 and other decisions.

N.B. The County appealed Justice Lefkowitz's decision but subsequently decided to withdraw its appeals. The Appellate Division granted the County’s application to withdraw the appeals [DiBattista v County of Westchester, Slip Opinion No: 2010 NY Slip Op 60446(U), Appellate Division, Second Department, Motion Decision].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52731.htm

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake


A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake
Sheng v State of N.Y. Div. of Human Rights, 2012 NY Slip Op 02310, Appellate Division, Second Department

The New York State Division of Human Rights dismissed Juan Y. Sheng’s  administrative complaint alleging unlawful discrimination after deterimining that there was “no probable cause.” Subsequenlty Sheng asked  Supreme Court to vacate a stipulation discontinuing the proceeding before the Division with prejudice. Supreme Court denied Sheng’s petition.

The Appellate Division dismissed Sheng’s appeal, explaining that stipulations disposing of proceedings and actions "are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel." Further, said the court, A party seeking to set aside such a stipulation will be granted relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake,” citing McCoy v Feinman, 99 NY2d 295.

Concluding that Supreme Court properly determined that Sheng failed to demonstrate good cause to set aside the stipulation discontinuing the proceeding with prejudice, the Appellate Division commented that “The failure of [Sheng’s]  attorney to ascertain or understand the legal effect of a discontinuance with prejudice was not a basis upon which to vacate the sitpulation.”

Further, the court said that Sheng submitted no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform her counsel of the legal ramifications of a discontinuance with prejudice. In the words of the Appellate Division, “opposing counsel owed no duty to disclose her understanding of those legal ramifications” to Sheng or Sheng’s attorney.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02310.htm

April 03, 2012

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates


The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates
Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02367.htm

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration


If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration
County of Rockland v Civil Serv. Empl. Assn., Inc., 2012 NY Slip Op 01815, Appellate Division, Second Department

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA), filed a grievance on behalf of one of its members in the collective bargaining unit and shortly thereafter filed a similar grievance on behalf of another of its members in the unit. Both grievances filed by CSEA alleged that Rockland County had violated certain provisions of the Collective Bargaining Agreement [CBA] between CSEA and the County when it assigned per diem employees to perform certain work instead of giving those assignments to regular full- and part-time employees in the collective bargaining unit.

Rockland denied the grievances and ultimately CSEA demanded that the grievances be submitted to binding arbitration.

Rockland County filed an Article 75 petition in Supreme Court seeking a court order permanently staying the arbitration. Supreme Court granted its petition and permanently stayed the arbitration of the grievances. The Appellate Division reversed the lower court’s order.

The Appellate Division said that in the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.

If the demand for arbitration meets this test, then the court must then determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that inasmuch as the grievances allege that Rockland County violated certain provisions of the CBA, and the CBA contains a procedure to arbitrate "any alleged violation, misrepresentation, or inequitable application of [the CBA]," the parties have agreed to arbitrate the grievances.

Further, noted the court, Rockland’s allegation that CSEA’s demand for arbitration was untimely is an issue to be resolved by the arbitrator and not the courts.

Thus, said the Appellate Division, Supreme Court erred in granting the County’s petition and permanently staying the arbitration. 

The decision is posted on the Internet at:

April 02, 2012

Removal from public office


Removal from public office

Warren v Bielecki, 2012 NY Slip Op 01037, Appellate Division, Fourth Department

Although this action seeking to remove two persons from public office pursuant to Public Officers Law §36 was dismissed as moot as the individuals targeted for such removal no longer held public office, the Appellate Division commented that had it consider the matter on its merits if would have dismissed the petition seeking such removals.

The court noted that based on the findings of fact made by a referee it had appointed, there were insufficient grounds upon which to remove either individual from office pursuant to Public Officers Law §36.

Removal from public officer pursuant to Public Officers Law §36 requires evidence of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01037.htm

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits


Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits
Hughes v Kelly, 2012 NY Slip Op 02393, Appellate Division, First Department
A New York City police officer, Jeffrey Hughes, filed an application for accidental disability retirement benefits. He also filed an application for ordinary disability retirement benefits. Police Commissioner Raymond Kelly rejected denied both applications and Hughes filed a petition pursuant to CPLR Article 78 seeking to overturn the Commissioner’s determination.
Supreme Court dismissed Hughes’ petition. Unanimously affirming the lower court’s ruling, the Appellate Division held that there was a rational basis the Commissioner’s determination.
The record, said the court, showed that after reviewing the medical evidence submitted by Hughes and the findings from its physical examinations of Hughes, the Medical Board concluded that "there was no objective evidence of a disability." Citing Matter of Appleby v Herkommer, 165 AD2d 727, the Appellate Division noted that “ It is well established that the court may not substitute its judgment for that of the Medical Board.”
The decision indicates that the Medical Board found that the deficits in Hughes’ “range of motion” were attributable to "voluntary guarding" and there were no objective radiographic studies presented showing any abnormal findings. Further, said the court, Board considered evidence submitted by Hughes' personal physicians and provided a rational explanation for its medical judgment.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02393.htm

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