ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

February 21, 2013

An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action


An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

A teacher [Teacher] at a State correctional facility alleged that she had been subjected to unlawful discrimination based upon sex, age and disability and then subjected to retaliation for complaining about such alleged discrimination by her supervisor.

Supreme Court denied Teacher’s motion seeking the production of her supervisor’s medical records, which decision was sustained by the Appellate Division.

The Appellate Division explained that “[e]ven assuming, arguendo, that [the supervisor] waived the physician-patient privilege with respect to those records by disclosing them in an action commenced by [her] in federal court, we conclude that [Teacher] failed to meet her initial burden of making an evidentiary showing that [the supervisor’s] medical condition ‘in controversy’ in this action,” citing CPLR §3121[a].

The Appellate Division commented that “[t]he fact that [the supervisor] affirmatively placed her medical condition in controversy in the related action she commenced in federal court does not relieve [Teacher] of her initial burden herein.” 

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00853.htm

February 20, 2013

An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts


An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts
New York Finger Lakes Region Police Officers Local 195 of Council 82, AFSCME, AFL-CIO (City of Auburn), 2013 NY Slip Op 00844, Appellate Division, Fourth Department

The Finger Lakes Region Police Officers Local 195 appealed Supreme Court's rejection of its petition to vacate an arbitration award in which the arbitrator had determined that the City of Auburn had not violated the terms of the relevant collective bargaining agreement (CBA) when it terminated the employment of one of the members of the Local.

The Appellate Division sustained the lower court’s ruling, explaining that "[a]n arbitration award may be vacated if it is irrational, violates a strong public policy, or clearly exceeds a specifically enumerated limitation on the arbitrator's power*" Here, and notwithstanding the Local’s arguments to the contrary, the Appellate Division concluded that the arbitrator's interpretation of the CBA was not irrational, "nor did the arbitrator alter the terms of the CBA based on his interpretation of its terms so as to exceed his authority."

Citing Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3d 1668, leave to appeal denied 18 NY3d 802, the Appellate Division noted that an arbitrator is required to interpret and apply the terms of a CBA and while another entity could have applied a different construction to the relevant provision of the agreement, in this instance “it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

* §7511 of the Civil Practice Law and Rules sets out a number additional reasons that permit a court to set aside an arbitrator’s award such as a finding of corruption, fraud or misconduct in procuring the award; the partiality of an arbitrator appointed as a neutral,[except where the award was by confession], or the failure to follow procedures set out in Article 75 unless the party seeking to vacate the award on such grounds continued with the arbitration with notice of the defect[s] without objection.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00844.htm

February 19, 2013

Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced


Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced

Governor Cuomo and United University Professions [UUP] President Smith announce agreement on a  tentative Taylor Law contract agreement for State University of New York [SUNY] employees in collective bargaining units represented by United University Professions.

On February 19, 2013 Governor Andrew M. Cuomo and United University Professions [UUP] President Phillip H. Smith announced a tentative contract agreement between the state and the union representing more than 35,000 SUNY employees. UUP members had been without a contract since 2011. The proposed agreement is tentative pending ratification by UUP membership.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

The tentative pact includes the following provisions:

1. Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

2. Deficit Reduction Program involving nine days [of wages] over the contract period.

3. A two percentage point increase in health insurance premium contributions for employees earning less than $40,137, making the share 12% for individuals and 27% for family premiums.

4. A six percentage point increase for employees earning $40,137 and above, making the share 16% for individuals and 31% for family premiums.

5. Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

6. A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

7. Three payments of $500, $500, and $250 to be awarded to employees at the discretion of the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

The American Arbitration Association [AAA] will conduct a ratification vote by mail this spring. UUP members will have approximately three weeks to return their ballots to AAA.

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area


Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Education Law §2510[2] provides that a school district that abolishes a teaching position for economic reasons must discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished." As this decision demonstrates, an incorrect determination with respect to which teacher is “least senior” for the purposes of layoff could prove expensive to the school district.

A teacher [Teacher] challenged the Board of Education’s determination that she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law and was arbitrary and capricious. As redress, Teacher sought "seniority credit" for certain services as a substitute teacher that she had rendered to the District, reinstatement to her former position, and "restitution" for damages that she allegedly sustained as a result of the School Board's determination, which, in effect, terminated her employment.

The Appellate Division annulled the Board’s determination with respect to Teacher’s seniority for the purposes of layoff and it was [1] directed to award seniority credit to her for her service between November 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position as a full-time probationary teacher in the foreign language tenure area with back pay and benefits.* 

The significant issue in this action was the criterion used in determining a teacher's seniority, i.e., the "actual full-time service rendered" including full-time regular substitute service in a particular tenure area prior to his or her probationary appointment in that same area** and the rationale for equating full-time substitute service with full-time probationary service for seniority purposes.

The Appellate Division explained that employment as a regular substitute "constitut[es] employment by the board of education on a permanent basis" and is "equivalent to service rendered pursuant to a probationary appointment in contrast to an 'itinerant' or per diem substitute assigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.

The court noted that the District had argued that Teacher’s resignation severed her employment relationship with the District and that she therefore lost all seniority accumulated prior to that time notwithstanding the fact that Teacher had agreed to "resign" in exchange for the District's promise to immediately rehire her as a substitute teacher and to reappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.

Although the District was correct that a teacher who voluntarily severs all of his or her professional relationship with a school district through retirement or resignation forfeits his or her seniority rights under Education Law §2510, the Appellate Division questioned whether Teacher’s resignation, under the relevant facts in this case, could be deemed to have been voluntary, noting that:

1 "Public policy" favors the protection of an employees' seniority rights;

2. Although an employee may relinquish his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary, i.e., the employee must take "affirmative steps" to terminate all aspects of his or her employment by a school district and in the absence of a specific contrary intent, an employee who merely assents to being reassigned to a different title within the same tenure area — even under the guise of a resignation — is not deemed to have "resigned" for purposes of determining his or her seniority credit so long as the title to which he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.

3. Neither the District nor Teacher complied with the requirements of Education Law §3019-a ("Notice of termination of service by teachers"), which governs the formal resignation and termination of probationary teachers.

4. The record was devoid of any intent or affirmative act by Teacher to sever all aspects of her employment relationship with the District and thereby relinquish her seniority rights.

5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by either Teacher or the District to sever their professional relationship but instead the arrangement allowed Teacher to continue teaching in the District while her permanent certification was pending.

6. There was no actual break in Teacher's service to the District as a result of her "resignation" as the resignation was effective at the end of the day on October 1, 2009 and the next day she returned to the same classroom to teach the same subject to the same students during the same hours.***

Accordingly, as noted earlier, the Appellate Division modified Supreme Court’s ruling “on the law,” and granting Teacher’s petition in part, annulled the District's determination, awarded Teacher seniority credit for the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign language tenure area, with back pay and benefits.

* N.B. The decision notes that Supreme Court held that the District was "justified in giving more seniority credit to another teacher because that teacher had obtain … permanent certification at an earlier date.” The Appellate Division said that "[s]eniority [for the purposes of layoff] … relates only to length of service" and considerations such as prior experience, training, or educational qualifications are not properly included therein.”

** Teacher’s service with the School District for the purposed of determining her seniority within the meaning of §2510[2] of the Education Law is set out in some detail in the Appellate Division’s decision.

*** The Appellate Division characterized Teacher’s "resignation" as essentially "a legal fiction designed to allow Teacher to continue her duties as a full-time Spanish teacher while ensuring the District's compliance with the Education Law, which prohibits a school district from employing uncertified teachers."

The decision is posted on the Internet at:

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February 18, 2013

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings


Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings
Barber v New York State Off. of Victim Servs, 2013 NY Slip Op 00958, Appellate Division, Third Department

An individual [Applicant] installed certain security and surveillance devices in response to alleged stalking and harassment the Applicant had experienced. Applicant filed a request for reimbursement for the cost of such devices with the State’s Office of Victim Services, which application was rejected on the ground that Applicant failed to prove that a crime had been committed.

Applicant appealed and a hearing was conducted by a three-member panel of the Office of Victim Services. The panel affirmed the disallowance of Applicant ‘s claim.

In response to Applicant‘s challenging the panel’s determination, the Appellate Division said that notwithstanding the substantial evidence in the record to support Victim Service’s denial of Applicant’s claim, reversal of the ruling was required because Applicant was not provided with the opportunity to cross-examine witnesses providing testimony at the hearing.

According to the decision, although the panel was advised that Applicant was waiting in the lobby for the hearing to begin, the panel members conducting the hearing made the affirmative decision to take the testimony from one of the witnesses without the Applicant being present. Further, Applicant was only invited to attend the hearing following the conclusion of that witness's testimony and Applicant was asked to leave the hearing after testifying. Then, said the court, testimony was taken from a second witness without Applicant being present.

The Appellate Division ruled that as Applicant was denied the right to cross-examine witnesses, the panel’s determination must be annulled and the matter remitted to Victim Services for a new hearing.

The court explained that "Regardless of the merits in a particular case, a party whose rights are being determined at a quasi-judicial administrative hearing must be given the opportunity to cross-examine witnesses," citing Matter of Seeger v Moduform, Inc., 146 AD2d at 923.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00958.htm

February 16, 2013

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 February 17, 2013   [Click on the caption to access the full report]

DiNapoli Announces $250 Million Private Equity Co–Investment Allocation for Emerging Manager Program

Comptroller Thomas P. DiNapoli announced Friday that the New York State Common Retirement Fund (Fund) has allocated $250 million to Farol Investment Advisers for private equity co–investments with the Fund’s emerging managers program. The announcement came as DiNapoli hosted the sixth annual emerging manager conference in Albany, New York.


Comptroller DiNapoli and A.G. Schneiderman Announce Felony Plea of Former Senator Shirley Huntley

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Wednesday announced that former New York Senator Shirley L. Huntley has pleaded guilty to Tampering with Physical Evidence, an E Felony, for falsifying evidence in an effort to obstruct the investigation into the theft of a grant she sponsored for a sham non–profit entity, the Parent Workshop.


DiNapoli: Medicaid System Flaws Led to $7.8 Million in Overpayments

The Department of Health’s Medicaid program overpaid health care providers by $7.8 million over a six month period because of flaws with its eMedNY computer system, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors from the Comptroller’s Office recouped about $7.5 million of the overpayments and took steps to prevent future payment errors.


DiNapoli: Millions Sat Idle in MTA Bank Accounts

The Metropolitan Transportation Authority (MTA) held over $90 million in funds and bank accounts that could have been used to meet its budgeted costs, according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. Auditors found the MTA did a poor job managing its cash–on–hand, had excess bank accounts and no set targets for short–term investing of billions of dollars.


DiNapoli: Executive Budget Continues Spending Restraint in the Face of a Challenging Economy

The 2013–14 Executive Budget continues the state’s effort to move toward long–term structural balance and reduces projected out–year budget gaps while addressing infrastructure needs, including the recovery from Hurricane Sandy, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.


DiNapoli: Growth of Local Sales Tax Collections Slows

Local sales tax collections in New York grew by $450 million in 2012, an increase of only 3.3 percent from 2011, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. New York City had a slightly better growth rate of 3.5 percent.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:




Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:




the City of North Tonawanda.

February 15, 2013

An administrative determination made without a pre-determination hearing must have a "rational basis" and may not be "arbitrary and capricious”


An administrative determination made without a pre-determination hearing must have a "rational basis" and may not be "arbitrary and capricious”

The Court of Appeals decision in this case sets out the standard of review used by courts when considering appeals from administrative decisions made without first holding a hearing.

A fire lieutenant [Lieutenant] with the City of Long Beach Fire Department applied for accidental disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] §363-c. The State Comptroller granted Lieutenant’s application.

Lieutenant than sought supplemental disability retirement benefits from the City pursuant to General Municipal Law §207-a.

GML §207-a provides that an individual subject to its provisions receiving a retirement allowance as the result of disability incurred in performance of duty pursuant to §363-c of the RSSL, or similar accidental disability pension provided by the retirement system of which he or she is a member,  “shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] shall have attained the mandatory service retirement age applicable to him [or her] or shall have attained the age or performed the period of service specified by applicable law for the termination of his [or her] service, the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages.”*

The Fire Commissioner denied Lieutenant’s request for a GML §207-a supplement without explanation, which determination was subsequently sustained by the City's Corporation Counsel. Lieutenant then filed an Article 78 proceeding challenging the City of Long Beach's decision.

Supreme Court annulled the City's determination and directed it to pay Lieutenant the GML §207-a supplemental benefit. The Appellate Division affirmed the Supreme Court’s ruling.

The Court of Appeals agreed with the Appellate Division’s ruling, explaining that in reviewing the City's determination, which was made without a hearing, the issue is whether the action taken by the administrative agency had a "rational basis" and was not "arbitrary and capricious." An action is arbitrary and capricious, said the court, if it is taken “without sound basis in reason or regard to the facts." In contrast, noted the court, if the administrative determination has a rational basis, it will be sustained, even if a different result would not be unreasonable.

According to the Court of Appeals’ decision the City's denial of the GML §207-a supplement was based on statements made by Lieutenant's estranged wife in the midst of a divorce and the Corporation Counsel's personal observations of Lieutenant.

As Lieutenant not given any notice of the allegations nor an opportunity to respond to them,** despite the substantial contrary record evidence, including medical findings, that led to the approval of Lieutenant's application for disability benefits by the State Employees’ Retirement System, the Court of Appeals said that it agreed with the Appellate Division’s conclusion that the City's justification for its denial of payment of the benefits to be provided in accordance with GML §207-a “lacks the requisite rational basis and was, therefore, arbitrary and capricious.”

* N.B.This supplementation of a disability retirement benefit is unique to individuals within the ambit of GML §207-a. GML §207-c, which is applicable to law enforcement personnel disabled in the line of duty and who are subsequently granted an accidental disability or similar retirement benefit are not eligible to received a GML §207-a type “supplementation” to their disability related retirement allowance pursuant to GML §207-c except in certain situations such as the one considered by the court in Matter of the Arbitration between the City of Plattsburgh and Plattsburgh Police Officers, 250 AD2d 327.

** Although as a general rule the payment of the supplement authorized by GML §207-a is a function of the individual's receiving a disability retirement allowance, GML §207-a.6 provides for the forfeiture of the supplement under certain conditions. In view of the Long Beach decision, prudence suggests that such forfeiture of the supplement pursuant to GML §207-a.6 should be effected only after notice and hearing.  

The decision is posted on the Internet at:


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February 14, 2013

Arbitration award sustained absent proof that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power

Arbitration award sustained absent proof that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power
Shenendehowa Cent. Sch. Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 2013 NY Slip Op 00885, Court of Appeals

A school bus driver [Driver] tested positive for marijuana after submitting to a random drug test. This resulted in the School District's terminating Driver from the position, which action was ultimately submitted to arbitration.

The issue presented to the arbitrator: Did the termination of Driver violate the collective bargaining agreement between the parties and, if so, what is the appropriate remedy?

The arbitrator concluded that the School District had violated the agreement and that the penalty imposed on Driver, dismissal, was too severe. The arbitrator directed the School District to reinstate Driver without back pay, subject to certain conditions including an evaluation by a substance abuse professional and a negative drug test.*

The School District filed an CPLR Article 75 petition seeking to vacate that portion of the arbitration award directing that it reinstate Driver to the position of school bus driver and to modify the award by imposing the penalty of termination, contending that Driver had violated the School District’s “zero drug tolerance” policy.

Supreme Court granted the School District’s Article 75 petition seeking to vacate an arbitration award thus  reinstating the School District's decision to terminate Driver's employment with the district.

The Appellate Division vacated the Supreme Court’s ruling, finding that the award was not against public policy, was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.” The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.”

Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award [where it] violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.

The Court of Appeals agreed with the Appellate Division’s ruling, noting that it has recognized three narrow grounds that may form the basis for vacating an arbitrator's award, repeating the Appellate Division’s criteria that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power, commenting that none of these grounds had been established by the School District in this action.**

Specifically the high court ruled that:

1. The arbitrator's decision did not exceed a specific limitation on his power; nor was it irrational.

2. Contrary to the School District's argument, the parties' agreement did not require the penalty of termination in these circumstances and

3. That the District did not in fact have a zero tolerance policy in place.

According, said the court, the arbitrator’s determination that Driver’s “reinstatement with conditions” was the appropriate penalty did not violate public policy. Although, said the court, “reasonable minds might disagree over what the proper penalty should have been [this] does not provide a basis for vacating the arbitral award or refashioning the penalty...."

Significantly the Court of Appeals noted that the arbitrator “determined that, contrary to the School District's argument, the parties' Taylor Law agreement did not require the penalty of termination in these circumstances and that the District did not in fact have a zero tolerance policy.” This suggests that had the Taylor Law agreement provided for termination in the event the employee tested positive for an unlawful drug or if the School District had a written "Zero Tolerance" drug policy known to Driver in place at the time Driver tested positive for an unlawful drug, the School District would have prevailed.

* The decision notes that “This effectively imposed, at that time, a six-month unpaid suspension” on Driver.

** Article 75 of the CPLR sets out other grounds, not relevant in this action, for a court's vacating an arbitration award.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00885.htm

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February 13, 2013

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

February 12, 2013

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

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