An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit

An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit

Ricket v Mahan, 2012 NY Slip Op 05773, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal was the allegation that the Town of Colonie appointed an individual to the office of Commissioner of Public Works who was unqualified for the position.

In this instance the court found that the individual appointed to the position of Commissioner of Public Works was selected based on his "administrative experience and qualifications for the duties of the office” and that  he was not required to possess a specific license or engineering degree to perform the duties of the position to which he had been appointed.

Noting that an investigation conducted by the State's Education Department determined that the Commissioner had not engaged in the practice of engineering while serving in the position, the Appellate Division concluded that the challenged appointee “has not engaged in nor was he required to practice engineering while holding this position."

This ruling reflects "the law of the case" set out in Matter of Martin as Administrator (Lekkas), 86 AD2d 712.

In Lekkas an Assistant Clinical Physician holding a permanent appointment with the Office of Mental Retardation and Developmental Disabilities was terminated from his position without notice or hearing because he did not obtain a license to practice medicine issued by the Education Department (Education Law §8522) set out in the minimum qualifications for appointment to the title Assistant Clinical Physician.

The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

Affirming the lawfulness of summarily discharging an employee without notice and hearing if the worker is unable to produce his or her required license or permit necessary to perform the duties of the position when requested to do so, the Appellate Division ruled that summary termination was permitted only if the duties actually being performed required the possession of the license or permit.

Lekkas, however, was performing administrative duties rather than “practicing medicine.” 

Ruling that no license was mandated by law to perform administrative duties, notwithstanding Lekkas’ title of  “Assistant Clinical Physician,” the court concluded that his removal from his position was subject to the notice and hearing provisions of §75 of the Civil Service Law.

The Ricket decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05773.htm

Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, US Circuit Court of Appeals, Second Circuit,  No. 11-2184 – [The following case summary was prepared by Findlaw]

In a Title VII suit against the City of Buffalo (City) claiming race discrimination in the administration of the 1998 and 2002 promotional examinations for the position of fire lieutenant, district court's judgment in favor of the defendants is affirmed where:

1. On plaintiffs' disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the defendant carried its burden to demonstrate that the examination's job relatedness by showing that the test derived from a valid statewide job analysis indicating the fire lieutenants across New York performed the same critical tasks required the same critical skills and in finding that the [New York State] Civil Service Department exercised reasonable competence in designing the examination and that the examination was both content related and representative;

2. On plaintiffs' disparate treatment challenge, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claims and that plaintiffs had not established a genuine material of fact that the City intentionally discriminated against African Americans by using the 1998 test results; and

3. On plaintiffs' Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of the City because the only matters in dispute had been resolved in the earlier challenge to the 1998 examination and there was sufficient identity between the plaintiffs in both suits.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/doc/11-2184_10-2168_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/hilite/

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition
Portnoy v Board of Educ. of City School Dist. of City of N.Y., 20 Misc.3d 1119(A)

This decisions sets out some of reasons that a court may consider in rejecting arguments that actions by another party served to toll the relevant statute of limitations.

Noting that the four-month period of the statute of limitations begins to run when the determination made by the agency becomes final and binding, Judge Madden said that:

[1] A request for reconsideration of an administrative determination does not toll or revive the statute of limitations, even when the agency reconsiders its determination or negotiates with individual regarding modification of the administrative decision.

[2] A statute of limitations is not tolled should the individual seeks redress through a procedure that subsequently turns out to be unavailable.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31933.pdf