Slipping and falling as the result of an undetectable unknown substance on road constitutes an accident within the meaning of the Retirement and Social Security Law

Slipping and falling as the result of an undetectable unknown substance on road constitutes an accident within the meaning of the Retirement and Social Security Law

Sammon v DiNapoli, 2012 NY Slip Op 05587, Appellate Division, Third Department

City of Yonkers Firefighter Michael M. Sammon’s application for accidental disability retirement benefits was denied by the New York State Employees’ Retirement System.

Sammon had fallen when “his foot gave way on a slippery spot on the ground.” As a result he was unable to continue performing the duties of a firefighter. Ruling that Sammon’s disability did not result from an accident within the meaning of Retirement and Social Security Law, the System approved his application for performance of duty disability benefits.*

Sammon filed an Article 78 petition challenging the System’s determination.

The Appellate Division annulled the System’s ruling disapproving Sammon’s application for accidental disability retirement benefits explaining that to qualify as an accident within the meaning of Retirement and Social Security Law §363, the "cause of the injury [that resulted in the disability] must be a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Further, said the court, the burden rests on the applicant to demonstrate that the injury was accidental. 

The Appellate Division held that Sammon satisfied both tests.

As to “slip and fall incidents,” the question of whether an accident occurred turns on whether the condition that caused the slip could have been "reasonably anticipated." Sammon and his coworker testified that the spot on the ground on which he slipped was an unknown substance that blended in with the roadway and was, thus, undetectable.

As this event occurred during the summer and there is no indication that there was inclement weather, the Appellate Division said that it could not agree with System that the fact that sometimes slippery surfaces exist in public roadways is alone enough to conclude that Sammon should have reasonably anticipated the spot on which he slipped.

The court distinguished the situation in Sammon’s case from those involving [1] an individual who was not aware of ice prior to falling but who had observed snow on ground and acknowledged parking lot” iced over in past” and [2] an applicant who did not see an oily substance on stairs but had been warned by a building inspector just prior to falling that stairs were slippery.

* Sammon's had filed an application for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05587.htm

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Courts have a limited authority in modifying a disciplinary penalty imposed by the appointing authority

Courts have a limited authority in modifying a disciplinary penalty imposed by the appointing authority

Mary Ellis v Mahon, 11 NY3d 754

In Ellis v Mahon, 49 AD2d 538, the Appellate Division the annulled the disciplinary penalty imposed on the employee – dismissal – and remanded the matter to the appointing authority “for the imposition of an appropriate penalty less severe than either termination or suspension of [the employee’s] employment.” The individual had been found guilty of incompetence.

The Appellate Division found that “The evidence did not establish, nor does the [appointing authority] suggest, that [the employee’s] conduct was motivated by any malice or selfishness, or that it resulted in any "grave injury to the agency involved or to the public weal."

The Court of Appeals reversed the Appellate Division’s determination, commenting that the worker, who was employed as an eligibility examiner tasked with processing food stamp applications, consistently processed such applications in particularly late fashion, even after multiple warnings concerning her poor performance. Thus, said the court, “we cannot conclude that the penalty of termination shocks the judicial conscience,” citing Pell v Board of Education, 34 NY2d 222.

The Court of Appeals then reiterated its view that “the Appellate Division has no discretionary authority or “interest of justice” jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by the appointing authority.”

The Court cited Torrance v Stout, 9 NY3d 1022, a case involving the willful and intentional illegal disposition of county property, and Rutkanas v Stout, 8 NY3d 897, a case involving conduct that was found to have jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked, in support of its ruling.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06737.htm

Appointing authority disqualified from acting on the recommendations submitted by a disciplinary hearing officer as a result of his personal involvement in the disciplinary process

Appointing authority disqualified from acting on the recommendations submitted by a disciplinary hearing officer as a result of his personal involvement in the disciplinary process
Prioleau v Nicoletti, 54 AD3d 768

Joseph Nicoletti, Jr., the Commissioner of the White Plains Department of Public Works, adopted the findings and recommendation of a disciplinary hearing officer finding Assistant Sanitation Superintendent Jerry Prioleau guilty of misconduct and incompetence and terminated his employment with the agency.

The Appellate Division annulled the Commissioner’s decision and remitted the matter to him. The court directing that the Commissioner appoint new “a duly-qualified, impartial decision-maker authorized to review the recommendation of the hearing officer.” This new determination is to be based on the “original hearing record.”

The Court said that the Commissioner’s “personal involvement in this matter,” including meeting with Prioleau and issuing an oral directive to him which later formed the basis for over 200 specifications of misconduct, as well as the fact that he preferred the disciplinary charges against Prioleau, required that he recuse himself from reviewing the findings and recommendation of the hearing officer and acting on any of the charges.

In Ernst v. Saratoga County, 234 A.D.2d 764, the Appellate Division said that “persons who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges,” citing a number of decisions including Lowy v Carter, 210 AD2d 408, Hicks v Fortier, 117 AD2d 930; and Ortiz v Lesser, 83 AD2d 663.”

In other cases courts have been more lenient of the appointing authority being involved in some aspect of the disciplinary process. For example, in Stanton v Board of Trustees, 550 NYS2d 16, the Appellate Division ruled that Stanton was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. “(A)lthough a ‘fair trial in a fair tribunal is a basic requirement of due process’,” the court said, “... it has also been recognized that ‘mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decision-maker.’”

Failure to perform found to result from incompetence rather than misconduct

Failure to perform found to result from incompetence rather than misconduct
Transit Auth. v. Wong, OATH Index No. 1866/08

In a disciplinary proceeding, a computer specialist was charged with both incompetence and misconduct. ALJ Kara Miller sustained the incompetence charge, finding that the respondent had overstated his qualifications and experience on his resume and lacked the requisite skill set to perform his job functions.

The ALJ, however, dismissed the three misconduct charges, finding that as to the first, the respondent was not given a clear and unambiguous order that he violated; as to the second, the Department relied on hearsay that was so attenuated as to have no value at all in order to establish the charge; and as to the third, the respondent's failure to perform an assignment was a reflection of his incompetence rather than misconduct.

ALJ Miller recommended demotion.

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

Jurisdictional classification, position classification and determining the compensation to be paid individuals in the State’s “civil service”

DeMartino v City of New York, 2012 NY Slip Op 22178, Supreme Court, New York County

The City of New York promulgated Personnel Orders No. 2012/1 and 2012/2 that approve and resulted in an amendment to Rule X of the Personnel Rules and Regulations of the City of New York.

The amendments to Rule X, reclassified 106 heretofore ungraded [presumably NS or “non-statutory” positions] that were so-called “prevailing rate titles” into 14 new occupational titles, “with four grade levels within each service classification affecting salaries and benefits.”

DeMartino filed an Article 78 petition seeking a court order annulling Personnel Orders No. 2012/1 and 2012/2, contending that the determinations were unilateral, arbitrary and capricious, in violation of Labor Law §220, and the reclassification provisions of Civil Service Law §20.*

The City opposed the petition claiming that it had “complied with Civil Service Law §20 [1] when it allocated titles within a salary grade construct because it did not change a jurisdictional classification.” The City also contended that Civil Service Law §20 only applies when a title is changed from competitive to [the] noncompetitive or [the] exempt class [or the labor class].

Supreme Court disagreed with the City’s position, holding that the legislative intent of Labor Law §220 is to impose upon the state and municipal corporations the same obligations of paying the prevailing rate of wages to laborers, workmen and mechanics employed in public works, in ungraded or noncompetitive employment** as private employers.

Supreme Court then granted DeMartino’s petition and annulled the two challenged Personnel Orders  .

* NYPER comments: §20 of the Civil Service Law addresses the jurisdictional classification and jurisdictional re-classification of positions by a civil service department or personnel officer, which determination is subject to the approval of the State Civil Service Commission. 


Civil Service Law §2.10 defines the term "jurisdictional classification" as the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes while §2.11 defines the term "position classification" as a grouping together, under common and descriptive titles, of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements therefor. 


Positions in the classified service are typically allocated to a salary grade. See, for example, §130.1.a(1) of the Civil Service Law with respect to certain positions in the service of the State as the employer. 


Those positions that are not allocated to a salary grade are referred to as “Other Statutory” [O.S.] where the compensation to be paid to the incumbent is set by law or “Non-statutory” [NS] where the salary is typically determined by the entity’s budget as “not to exceed” a designated amount. An example of an “O.S.” position: §40.1 of the Executive Law sets the annual salary of the State Comptroller..

** NYPER comments: As noted above, a position in the classified service that is “Ungraded” is typically referred to as an “N.S.” or “O.S.” position. Being “Ungraded” does not in itself determine the jurisdictional classification of the position. All positions in the classified service are automatically in the competitive class unless the position has been classified or reclassified to a different jurisdictional class as provided by law or has been otherwise so designated by statute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22178.htm