Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department

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The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04103.htm

Transfer of exclusive bargaining unit work to another bargaining unit

Transfer of exclusive bargaining unit work to another bargaining unit

Selected Rulings posted by PERB  – Matter of the City of New Rochelle, Decision U-26722

The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge.

The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement

From the Office of the State Comptroller

From the Office of the State Comptroller

DiNapoli: Fire District Mismanaged Funds

The Thiells–Roseville Fire District made more than $60,000 in questionable payments and inappropriate gifts, according to an audit released on May 24, 2012 by State Comptroller Thomas P. DiNapoli.


DiNapoli: DEC Employee Who Cheated Taxpayers Pleads Guilty

A former biologist with the state Department of Environmental Conservation Tuesday pleaded guilty to petit larceny in Albany County Court and paid $15,000 in restitution for spending several hours a week at a local bar instead of performing his work duties, State Comptroller Thomas P. DiNapoli said.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Town of Bath; the Village of Bath; the Town of Lloyd; the Town of Moreau; the Town of Parish; the Town of Saugerties; the Town of Taghkanic.; the New York City Health and Hospitals Corporation; the State Education Department; and, the Department of Motor Vehicles .

Findlaw – Human Resources Newsletter

Findlaw – Human Resources Newsletter

Table of contents for the week of May 29, 2012

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EX-TIME WARNER EMPLOYEE SUES OVER PORN AT WORK (FindLaw's Law & Daily Life) - Time Warner Cable has been hit with another discrimination lawsuit, this time by a former employee in New York. Keith Reid worked in the company's New York City maintenance department for about 9 years before he was fired earlier this year.

JACK'S PLACE ROBBERY: A WORKERS' COMP CLAIM WORTHY OF A RAP STAR (The Houston Employment Law Blog) - While it seems like only stars in the hip hop world get paid if they survive a shooting, workers' comp insurance just might pay a regular Joe if he got shot at work.

BEST BUY CEO BRIAN DUNN GETS $6.6M SEVERANCE PACKAGE AFTER SCANDAL (FindLaw's In House) - Best Buy CEO Brian Dunn may have stepped down in early April, but we're only now learning about the intimate details of his relationship with a 29-year-old employee. And the amount of his severance package, of course.

WAITRESSES' 'NO FATTIES' LAWSUIT CAN GO TO JURY (FindLaw's Law & Daily Life) - Two former New York City waitresses will soon be meeting with a jury. A state appeals court has agreed that Kristen McRedmond and Alexandria Lipton can sue South Place Restaurant & Bar for retaliation and discrimination. They claim they were fired after complaining about the bar's "no fatties" policy.