A false statement of fact is a necessary element in proving a cause of action alleging defamation

A false statement of fact is a necessary element in proving a cause of action alleging defamation

Goldberg v Levine, 2012 NY Slip Op 05613, Appellate Division, Second Department

Supreme Court dismissed Barry Goldberg’s petition seeking to recover damages for alleged defamation based upon certain written and oral statements allegedly made about him by the Steven Levine at town board meetings and in a local newspaper. Goldberg appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that in determining whether a complaint states a cause of action to recover damages for defamation, “the dispositive inquiry” is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the complaining party.

Falsity, said the court, is a necessary element in a defamation cause of action and only facts are capable of being proven false. Accordingly, it follows that “only statements alleging facts can properly be the subject of a defamation action.”

Characterizing certain of Levine’s statements that Goldberg alleged were made at Town Board meetings and in a local newspaper as “rhetorical hyperbole” and expressions of “individual opinion,” the court said “accepting these allegations in [Goldberg’s] complaint as true … they fail to state a cause of action to recover damages for defamation.”

The Appellate Division also observed that “the documentary evidence submitted by [Levine] demonstrated that the Levine's statements … were substantially true” and  "Truth is an absolute defense to an action based on defamation."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05613.htm

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Wolf, OATH Index No. 2153/08

Under rules of the New York City’s Office of Administrative Trials and Hearings, an attorney who has filed a notice of appearance may not withdraw from representation without the client's permission or as delineated in the Code of Professional Responsibility.

OATH Administrative Law Judge Ingrid Addison denied an attorney's motion to withdraw based on the accused employee's failure to appear at the hearing and the attorney's inability to contact him.

The ALJ found no indication that the attorney had taken steps to avoid prejudice to the employee, including giving due notice of her intention to withdraw.

The hearing continued not withstanding the employee's absence.

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed
Santora v Silver, 20 Misc.3d 836, Modified and Affirmed, 61 A.D.3d 621, Motion to appeal denied, 13 N.Y.3d 704

This “citizen taxpayer action” pursuant to State Finance Law Section 123 et seq., sought money damages from Assembly Speaker Sheldon Silver and his former chief legal counsel, James Michael Boxley for the sum paid by the State of New York in settlement of a prior action entitled Jane Doe v The New York State Assembly, et al, Sup. Ct., Albany County, Index No. 33 14/04 (the Jane Doe action).

Ultimately The Jane Doe action was settled for $507,500 with the State of New York paying $500,000, conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under Section 17 of the Public Officers Law.*$7,500 was paid contributed by Boxley, who was represented by private counsel in that litigation.

In this action, Joseph J. Santora sued in an effort to obtain a court order directing “restitution to [the State] from Silver and Boxley of the ‘$480,000’ that was paid by [the State] in settlement of the Jane Doe action.” In addition, Santora sought “money damages for the value of the legal services provided by the Attorney General in connection with his defense of Silver in the Jane Doe action, and argues that the Attorney General must be prevented from appearing in the present action on behalf of Silver.”

Judge Goodman dismissed the complaint filed by Santora against Silver and Boxley for the following reasons:

1. The complaint fails to allege any illegal or wrongful expenditure of state funds on Silver’s behalf, even if Silver had demonstrated leadership that would have led to an entirely different and more acceptable outcome. “A claim that state funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing under the [relevant] statute.”

2. The Attorney General’s representation of public officers does not entail the expenditure of public funds within the meaning of the State Finance Law … and [the Court is powerless to undertake] judicial scrutiny of statutorily-mandated non-fiscal activity of the Attorney General.”

3. Boxley was represented by private counsel in the Jane Doe action; and he was personally responsible for $7,500 of the total settlement paid to Jane Doe.

* Section 18 of the Public Officers Law permits political subdivisions of the State to elect to provide for representation and indemnification of its officers and employees sued as the result of the performance of, or the failure to perform, official duties.

The Supreme Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31995.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03456.htm

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

Ashe v Town Bd. of The Town of Crown Point, N.Y., 2012 NY Slip Op 05693, Appellate Division, Third Department

The Town Board of the Town of Crown Point filed disciplinary charges against one of its employees pursuant to Civil Service Law §75.

The Board conducted the hearing rather than appointing a hearing officer hear the charges and make findings of fact and a recommendation as to the disposition of the charges. The Town Supervisor was the primary person to present proof in support of the charge.

Ultimately the employee was, a divided vote found guilty of misconduct and terminated from his employment with the Town Supervisor participating in the Board’s voting on the charge and penalty. The Supervisor voted in favor of the prevailing determination to find the employee guilty and terminate his employment with the Town.

The employee challenged the Board’s action.

As to the role of the Town Supervisor in the proceeding and adjudication, the Appellate Division, citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, noted that "Although '[i]nvolvement in the disciplinary process does not automatically require recusal,' . . . individuals 'who are personally or extensively involved in the disciplinary process should disqualify themselves from . . . acting on the charges.'"

Finding that the Town Supervisor “was extensively involved as she presented virtually all of the proof in support of the charge,” the court concluded that the Town Supervisor should have disqualified herself from voting on the final determination.

Considering a procedural challenge made by the Town concerning the employee’s appeal, the Appellate Division commented that although an objection to a particular hearing officer generally must be timely asserted at the hearing to preserve the issue for appeal, it is incumbent upon a person who has been extensively involved in the disciplinary process to "disqualify himself or herself from [involvement in] rendering a final determination," [emphasis supplied].

Finding that the Town Supervisor was extensively involved in the disciplinary proceeding but did not recuse herself from participating in the determination, the Appellate Division ruled that the determination must be annulled and the matter remitted to Town Board for a de novodetermination based on the record.

On this last point, the court noted that it appeared that the Board considered events that occurred after the misconduct alleged in the charges and the hearing. Accordingly, it said, the Board’s determination should not consider any such post-hearing events.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05693.htm

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Free speech does not protect individuals using epithets

Free speech does not protect individuals using epithets
Charles Williams v Town of Greenburgh, et al, 535 F.3d 71

A governmental entity may be sued for allegedly suppressing an individual’s Constitutional protected Freedom of Speech.

In the Williams case, the Second Circuit addressed, among other things, Williams’ allegation that the Town of Greenburgh’s actions against him were taken in retaliation for his exercising his right to free speech when it expelled him from a town facility and prosecuted him for trespass.

In addressing this aspect of Williams’ petition, the Second Circuit explained that it has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context, comparing Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (requiring a private citizen who sued a public official to show: “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right”), with Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (requiring evidence of “adverse employment action” where plaintiff was a public employee), and Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (requiring, in the prison context, an adverse action by defendants and a causal connection between the adverse action and the protected speech).

Regardless of the factual context, said the court, it has required a plaintiff alleging retaliation to establish that his or her speech was protected by the First Amendment.

Citing Chaplinsky v. New Hampshire, 315 U.S. 568, the Circuit Court noted that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

The court concluded that because Williams could not show that his speech was either silenced or chilled — i.e., that his right to free speech was actually violated — his claim failed as a matter of law and sustained the district court’s granting the Town’s motion for summary judgment dismissing his petition.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-2nd-circuit/1124970.html

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA
Local 2841 of N.Y. State Law Enforcement Officers Union, AFSCME, AFL-CIO v City of Albany, 53 AD3d 974

A stipulation of settlement was entered into by Local 2841 and the City of Albany to resolve a number of grievances filed under the then Collective Bargaining Agreement [CBA]. By its terms, the stipulation “could not be modified or rescinded absent a subsequent writing of the parties.”

Subsequently the Local and the City negotiated and executed a successor CBA.

In the course of resolving a grievance brought under the new CBA, the arbitrator found that the stipulation made under the earlier CBA had not been modified or rescinded by any writing of the parties. Further, the arbitrator deemed the stipulation of settlement to be a rule of the Albany Police Department and, therefore, concluded that the City violated the terms of the CBA by not complying with its provisions.

The Appellate Division disagreed and vacated the arbitrator’s award.

The court said that “inasmuch as the successor CBA represents the entire agreement between the parties, it was not proper for the arbitrator to rely on the ‘stipulation of settlement’ flowing from the earlier CBA in resolving the instant grievance.”

“Accordingly,” ruled the Appellate Division, “the arbitrator exceeded his power in amending the terms of the CBA by considering that stipulation of settlement in contravention of an expressed term of the CBA which prohibited amending, modifying or deleting any provision thereof,” presumably viewing a term in the successor CBA as constituting “a subsequent writing of the parties” modifying or rescinding the terms of the stipulation of settlement entered into under the earlier CBA.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06421.htm

Termination of employee for poor attitude and aggressive behavior recommended

Termination of employee for poor attitude and aggressive behavior recommended

Triborough Bridge & Tunnel Auth. v. Bell, OATH Index No. 1635/08

 

A Bridge and Tunnel Officer drew his firearm and pointed it at a customer after the customer reached into a bag during a dispute at the Queens Midtown Tunnel tollbooth.

OATH Administrative Law Judge Alessandra Zorgniotti found that the employee’s use of his firearm was reasonable but recommended his dismissal because the incident stemmed from his proven discourtesy and unexplained refusal to process the customer's toll.

The ALJ found that the respondent's significant history of customer complaints relating to his poor attitude and aggressive behavior made him a threat to public safety.

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

Messier v Bouchard Transp., USCA, 2^nd Circuit, Docket #10-5181

The Doctrine of Maintenance and Cure has been compared to workers’ compensation benefits in that the duty arises from employment and “does not rest upon negligence or culpability on the part of the owner or master.” As the Second Circuit said in Weiss v. Cent. R.R. Co. of N.J., 235 F.2d 309, maintenance and cure has been called “a kind of nonstatutory workmen’s compensation” benefit.

Under the Doctrine, the owner of the vessel is obligated to provide food, lodging, and medical services to a seaman while in he or she is in service. The Doctrine entitles an injured seaman to three remedies —maintenance, cure, and wages. The general rule is that “maintenance and cure” is available for any injury or illness that occurs during a seaman’s service.

A seaman filed a complaint in federal district court asserting claims for negligence under the federal Jones Act* and for "maintenance and cure under general maritime law."** Ultimately he withdrew all claims other than those for “Maintenance and Cure.”

Reversing the district court’s dismissal of the seaman’s petition, the Circuit Court of Appeals said that “Maintenance” compensates the injured seaman for food and lodging expenses during his medical treatment. “Cure” refers to the reasonable medical expenses incurred in the treatment of the seaman’s condition while lost wages are provided in addition to maintenance on the rationale that “maintenance compensates the injured seaman for food and lodging, which the seaman otherwise receives free while on the ship.”

“The obligation to provide maintenance and cure payments,” however, “does not furnish the seaman with a source of lifetime or long-term disability income.” An eligible seaman is entitled to maintenance and cure only “until he [or she] reaches maximum medical recovery,” i.e., “until such time as the incapacity is declared to be permanent.”

Citing Farrell v. United States, 336 U.S. 511, the Circuit Court noted that the Supreme Court ruled that … “where a seaman has reached the point of maximum medical cure and maintenance and cure payments have been discontinued, the seaman may nonetheless reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available."

The Circuit Court than cautioned: “The analogy to workers’ compensation, however, can be misleading, because maintenance and cure is a far more expansive remedy. First, although it is limited to 'the seaman who becomes ill or is injured while in the service of the ship,' it is not restricted to those cases where the seaman’s employment is the cause of the injury or illness. '[T]he obligation can arise out of a medical condition such as a heart problem, a prior illness that recurs during the seaman’s employment, or an injury suffered on shore'.”

Further said the court, “the doctrine is ‘so broad’ that ‘negligence or acts short of culpable misconduct on the seaman’s part will not relieve the shipowner of the responsibility.’” Accordingly, the doctrine may apply even if a seaman is injured or falls ill off-duty or while on shore leave, so long as the seamen is “in the service of the ship,” which means he is “generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders.”

Another difference pointed out by the court: a seaman may be entitled to maintenance and cure even for a preexisting medical condition that recurs or becomes aggravated during his or her service.

Accordingly, the Circuit Court remanded the matter to the district court to “proceed to trial on the amount of maintenance and cure due” the seaman.

* 46 United States Code 883.[See, in particular, 46 USC 30104, Personal injury to or death of seamen.]

** A seaman who is required to sue a shipowner to recover maintenance and cure may also recover attorney fees [Vaughan v. Atkinson, 369 U.S. 527].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/doc/10-5181_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/hilite/

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Bower v Board of Educ., Cazenovia Cent. School Dist., 53 AD3d 967

Retired from his teaching position with Cazenovia Central School District, at which time he was enrolled as an individual participant in the district's group health insurance plan, the retired teacher subsequently married and asked the District to change his health insurance to family coverage so that his wife would be covered. The district refused, contending that a retired teacher is not permitted to change his or her health insurance coverage.

The retiree sued, arguing that (1) the applicable collective bargaining agreement permitted him to change his coverage and (2) the district's refusal violated the statutory moratorium against reducing health insurance benefits of retirees unless there was a corresponding reduction for active employees.

Supreme Court held that retiree had the right under the terms of the collective bargaining agreement to change his health insurance coverage to include his new spouse. The District appealed, only to the Appellate Division affirm the lower court’s ruling.

The Appellate Division noted that Article XXII of the agreement provided that "[a]ll bargaining unit personnel currently employed or retired from [the district] who are legally eligible may participate in the . . . health insurance program," and that Appendix G to the agreement, sets forth individual coverage and family coverage as the "two types of enrollment" available, pointed out that a section in the agreement entitled "ENROLLMENT CHANGES" recognized that "[c]hanges in your family status may make it necessary or desirable for you to change the coverage for which you are enrolled," and states, in relevant part, that "[y]ou may request a change from individual coverage to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse."

As there is nothing in the collective bargaining agreement to indicate that "you" in this provision was not intended to include retired employees, the Appellate Division said that “Reading the relevant provisions as a whole, we agree with Supreme Court that the agreement permitted the retiree to add his spouse to his health insurance.”

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06418.htm

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence
Guerrero v Scoppetta, 53 AD3d 615

The New York City Fire Commissioner, adopting the recommendation of a hearing officer, found a New York City Fire Department Emergency Medical Technician [EMT] guilty of a number of charges of misconduct and terminating his employment.

The Appellate Division said that the finding that finding that the employee was guilty of the charges was supported by substantial evidence.

Substantial evidence, said the court, is "less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" and here New York City Fire Department records, the testimony of numerous witnesses and the EMT, and a videotape of the incidents on which the determination was based, provided "such relevant proof as a reasonable mind may accept as adequate"

Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence. The Appellate Division dismissed the EMT’s appeal, holding that as the Commissioner’s determination was supported by substantial evidence, it may not be set aside.

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06375.htm