The timely filing of a “notice of claim” may be a condition precedent when suing the individual’s public employer

A timely filing of a “notice of claim” may be a condition precedent when suing the individual’s public employer

This action involved a claim of “fraudulent inducement” wherein the employee claimed that she was “induced … to accept a promotion” that resulted in her loss of union protection and other benefits as well as the imposition of a one-year probationary period.

When the employee was terminated from the new position prior to the end of the probationary period, she filed a petition alleging “fraudulent inducement.”* Supreme Court dismissed this allegation, holding that the notice of claim that had been filed pursuant to General Municipal Law §50-e was untimely.

The Appellate disagreed with this result, explaining that “An action based upon fraud accrues for purposes of General Municipal Law §50-e when the fraudulent act is committed or when ‘the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it,’ whichever occurs later,” citing CPLR §213[8].  Otherwise, said the Appellate Division, municipalities would have an incentive to conceal the damages and, or, injuries stemming from a fraudulent act until the 90-day period under §50-e had passed, leaving potential plaintiffs with no recourse aside from an application for leave to serve a late notice of claim.

In this instance, said the court, the petitioner was unable to assert a cause of action for fraudulent inducement until she sustained damages resulting from the fraud, i.e., when she was terminated from her new position during its probationary period. She did, however, timely served her notice of claim within 90 days of her termination.

The court, however, agreed Cayuga’s alternative ground for affirmance of the Supreme Court’s ruling -- the complaint should have been dismissed because plaintiff failed to plead with sufficient particularity the facts underlying her fraudulent inducement claim as required by CPLR 3016(b).

As the plaintiff had, in fact, failed to satisfy the requirements of CPLR 3016(b), the Appellate Division held that Supreme Court “properly dismissed the complaint to the extent that it was not withdrawn by plaintiff,” but noted that "[t]he dismissal . . . [was] without prejudice to an application by plaintiff to Supreme Court for leave to serve an amended complaint with regard to th[e] cause of action [for fraudulent inducement]."

In contrast, a notice of claim pursuant to Education Law §3813(1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest [Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs., 89 NY2d 395]. As it is well settled that the tenure rights of teachers are a matter of public interest, the notice of claim provisions of Education Law §3813(1) are not applicable to cases seeking to enforce such [Sephton v Board of Educ. of City School Dist. of City of New York, 99 AD2d 509, 510 (2d Dept), appeal denied 62 NY2d 605].

Another aspect of summary termination to consider: in a disciplinary action typically an aggrieved party has a statutory** or Taylor Law contract right to appeal an adverse determination by the appointing authority or an arbitrator or arbitration panel.

A temporary or provisional employee or probationary employee*** who has completed his or her minimum period of probation does not have a statutory right to appeal his or her termination except where he or she alleges the dismissal was in violation of his or her constitutional rights or was unlawfully discriminatory. 

* The plaintiff had withdrawn other causes of action, maintaining only the claim alleging fraudulent inducement.”

** See, for example, §76 of the Civil Service Law and §3202-a.5 of the Education Law. Appeals under §76 may be appealed to the responsible civil service commission [within 30-days of the decision] or as provided by Article 78 of the CPLR while §3202-a.5 appeals are to filed pursuant to Article 75 of the CPLR but must be filed within 10 days of the determination of the arbitrator or the arbitration panel.

*** In some instances a probationary employee may have a contractual right to challenge his or her termination as set out in a Taylor Law agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00840.htm

Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education

Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education

Appeal to the Commissioner of Education, Decision No. 16,455

According to the decision, the petition submitted in this appeal to the Commissioner of Education consisted of a request for an investigation. Included with the petition were various exhibits such as “a collection of letters, emails, Facebook postings, petitions, and questions presented to the [school] board.”

Initially the Commissioner noted that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself [or herself] entitled,” citing 8 NYCRR §275.10.

Further, cautioned the Commissioner, the statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of. In the event a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed

In the event a petitioner is not represented by counsel the Commissioner noted that “a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party.

The Commissioner however dismissed this appeal as untimely. Although the petitioner conceded that she had not filed the appeal within 30 days from the making of the decision or the performance of the act complained of, she asked the Commissioner to excuse her delay contending that “she could not gather documents needed to file her appeal.”

While a delay may be excused by the Commissioner “for good cause shown,” in this instance the Commissioner said that he found “no basis to excuse petitioner’s delay” and ruled that the appeal must be dismissed as untimely.

Commenting on the relief sought, the Commissioner commented that the only relief the petitioner sought was an investigation into the school board's and certain administrators' alleged “inappropriate decisions, actions, and lack of leadership and accountability....”  

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations. Accordingly it appears that even had this appeal been timely filed, it would have been dismissed because, in the words of the Commissioner, “the sole relief sought by petitioner is beyond the authority of the Commissioner to grant."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16455.html

Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty

Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty

City of New York v Organization of Staff Analysts, 2013 NY Slip Op 00806, Appellate Division, First Department

The Appellate Division affirmed Supreme Court’s denial of the City of New York’s petition to vacate an arbitrator’s award imposing a penalty of a one-year suspension without pay rather than termination of the employee.

The employee had been charged with accessing the personnel files of two co-workers.

The Appellate Division said that although and arbitrator’s award “can be overturned where it is directly contrary to a settled public policy,” citing UFT Local 2 v Board of Education, 1 NY3d 72. The court said that imposing a one-year suspension without pay rather than termination did not violate “the policy of protecting confidential information.”

Further, explained the court, the imposition of a penalty short of termination did not render the award irrational, rejecting the City’s argument that there was a possibility that the employee “will re-offend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct.”

The City had cited Binghamton City School District, 46 AD3d 1042, in support of its contention that termination was the appropriate penalty in this instance. In Binghamton the Appellate Division held that a “school teacher's lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken.”

Although the Appellate Division noted “the employee's lack of remorse,” it held that although “relevant to the risk of recidivism,” in this instance such lack of remorse  “did not rise to the level in the cases relied upon by the City.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00806.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending February 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Reaches Agreement with Cabot Oil and Gas to Disclose Policies on Hydraulic Fracturing Fluid

New York State Comptroller Thomas P. DiNapoli announced that Cabot Oil and Gas Corporation has agreed to publicly disclose its policy and procedures for eliminating or minimizing the use of toxic substances in its hydraulic fracturing fluids. As a result of the agreement, DiNapoli has withdrawn his shareholder proposal submitted for the company’s 2013 proxy statement calling for a report on the use of these substances in Cabot’s shale energy operations.

DiNapoli: Special Education Providers Charged Taxpayers for Excessive Salaries and Personal Items

The owners of two Manhattan–based special education providers claimed more than $500,000 in expenses to which they were not entitled, including extra money for their salaries, vehicle costs and personal expenses, as well as bonuses for staff that could not be justified, according to two audits released Thursday by New York State Comptroller Thomas P. DiNapoli. The audit findings are being considered for referral to law enforcement.

DiNapoli: Court Allows Securities Litigation Class Action Against BP To Move Forward

New York State Comptroller Thomas P. DiNapoli commended a Houston federal judge’s decision to allow a securities class action case against BP plc to go forward. “We are pleased that the New York State Common Retirement Fund’s claims on behalf of BP’s investors will proceed,” DiNapoli said. “Shareholders saw their investments plummet in value following the Deepwater Horizon catastrophe. Now information has come to light that BP was wholly unprepared to respond to the risks of its deep sea operations and incapable of adequately reacting when something went wrong.”

DiNapoli Receives Hubert H. Humphrey Humanitarian Award

State Comptroller Thomas P. DiNapoli received the Hubert H. Humphrey Humanitarian Award in recognition of his lifetime of public service to the state of New York and its citizens. The award was presented at the United Federation of Teachers’ annual Greater Metropolitan New York Social Studies Conference at which DiNapoli delivered the luncheon keynote address.

DiNapoli: Gloversville Faces Fiscal Challenges

Long–term population loss continues to limit economic growth in the city of Gloversville, according to a report issued by State Comptroller Thomas P. DiNapoli. City officials, however, have established critical rainy day funds by controlling the growth in spending, which helped lead to a recent upgrade to the city’s credit rating. The report is the latest in a series of fiscal profiles on cities across the state released by the Comptroller’s office.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Town of Bangor;

the Town of Black Brook;

the Town of Florida;

the Jericho Fire District;

the City of Mechanicville;

the Town of Olive; and,

the Watertown Housing Authority.

Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Matter of Osborne (Commissioner of Labor), 2013 NY Slip Op 00370, Appellate Division, Third Department

 The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The individual had been counseled by his supervisor about having inappropriate relationships in the workplace. Notwithstanding this, he became involved in a relationship and was issued a written disciplinary warning notice at that time, which stated that the relationship was a clear violation of the standards that he was counseled on earlier and that any further infractions in this regard would result in his termination.

Although the individual apparently briefly ended the relationship, it was subsequently resumed and his employment was terminated.

The Appellate Division affirmed the Unemployment Insurance Appeal Board decision disqualifying the individual for unemployment insurance benefits, explaining that "A knowing violation of an employer's established policy or reasonable request may constitute disqualifying misconduct, particularly where, as here, the claimant has received prior warnings about similar behavior."

While the court noted that the employer’s policy in question was not in writing, the individual was clearly aware of the policy as he signed a warning letter affirming his understanding of it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00370.htm

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

The Appellate Division affirmed the dismissal of an Emergency Medical Services Supervisor by the Commissioner of the New York City Fire Department for misconduct, ruling that the Commissioner’s determination that the Supervisor was guilty of violating departmental regulations was supported by substantial evidence.

The EMS Supervisor had admitted photographing a computer terminal’s screen showing confidential and privileged information received during a 911 call concerning a medical emergency, as well as the 911 caller's name, address and telephone number, and then uploading the image to his Facebook account, with the caption "[c]an't make this up."

The decision states that approximately 460 of the Supervior’s Facebook "friends" had access to the posting.

Further, said the Appellate Division, at the time of the posting the EMS Supervisor understood that divulging such patient information was in violation of departmental rules, as well as a serious breach of trust.

Considering the “serious nature” of the Supervisor’s misconduct, the court said that the penalty imposed, dismissal,  did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32 and  Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00437.htm

Equal pay for equal work

Equal pay for equal work
Subway Surface Supervisors Assn. v New York City Tr. Auth., 2013 NY Slip Op 00276, Appellate Division, First Department

In deciding this appeal, the Appellate Division, in a three to two decision, said that Civil Service Law §115 codifies a critical public policy, which is that, "to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government," there should be "equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service."

In Bertoldi v State of New York, 275 AD2d 227, the Appellate Division, First Department, stated that "[t]he principle of equal pay for equal work need not be applied in all cases under any and all circumstances." The clear implication of that statement, said the court, is that there are circumstances in which the principle of equal pay for equal work must be applied and that “this Court has the power to apply it.”

Further, the Appellate Division explained, “The mere fact that there are no reported cases in which a court has exercised such power does not mean that courts do not have that power.”

While case law establishes that a court need not presume that a disparity in pay is violative of §115, the Appellate Division said a court nevertheless may correct the disparity where "there is palpable discrimination or arbitrary action detrimental to the individual or class," citing Beer v Board of Educ. of City of N.Y., 83 NYS2d 485.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00276.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Technical guilty of failing to follow hospital procedure

Recommended penalty: 30-suspension without pay recommended

An ultrasound technician was charged with failing to follow hospital procedures requiring that a patient’s name and medical record number be placed on each image of the patient’s echocardiogram. Without the required identifiers, the reviewing cardiologist could not prepare his report, and the patient had to return to re-take the test.

Though the hospital sought the penalty of termination of employment, Administrative Law Judge Tynia D. Richard recommended a 30-day suspension, noting that the misconduct, while serious, was a single error and caused no harm except inconvenience.

The decision is posted on the Internet at:

Health & Hospitals Corp (Jacobi Medical Ctr.) v. Goldfayn (in PDF), OATH Index No. 2100/12

Employee found guilty of sexually harassing female co-workers

Penalty recommended: termination

Administrative Law Judge Spooner found that a pharmacy technician sexually harassed two female co-workers by forcibly grabbing one from behind and pressing himself against her, and by forcibly kissing the other employee three times. Termination of employment was recommended.

The decision is posted on the Internet at: 

Health & Hospitals Corp (Elmhurst Hospital Ctr.) v. Polepalle (in PDF), OATH Index No. 142/13