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

May 06, 2013

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers


Employer held liable for employee’s failure to call for assistance when asked to do so by police officers
Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

May 04, 2013

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


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending May 4, 2013 [Click on text highlighted in bold to access the full report] 


Entergy Shareholders To Take Up DiNapoli Proposal On Nuclear Power Safety

New York State Comptroller Thomas P. DiNapoli Friday raised concerns with the storage of nuclear fuel at Entergy Inc.’s annual shareholder meeting in Little Rock, Ark. DiNapoli’s shareholder proposal calls for the company to implement a policy to minimize the amount of nuclear waste it stores in spent fuel pools and transfer that waste into dry cask storage.


DiNapoli: State Overtime Costs on the Rise

Overtime earnings at state agencies rose nearly 11 percent in 2012 to $529 million, escalating a trend that began in 2009, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: State Ends Fiscal Year in Solid Position But Challenges Remain

Despite unexpected costs from Superstorm Sandy and a weaker than expected economy, New York State ended state fiscal year 2012–13 in a stable cash position compared to recent years, according to an end of the year report released Monday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: St. Lawrence County Needs Long–Range Financial Plan

St. Lawrence County is coping with cash flow difficulties and a sharp decline in surplus funds, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. The audit notes that the county’s weakening fiscal health has resulted in program cuts, tax increases and a potential operating deficit.


Comptroller DiNapoli Releases Municipal Audits

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










the Maine Endwell Central School District.

May 03, 2013

Governor Como appoints Catherine Scott to serve as the State’s Inspector General


Governor Como appoints Catherine Scott to serve as the State’s Inspector General

On May 2, 2013 Governor Andrew M. Cuomo announced that he has appointed Catherine Leahy Scott to serve as the Inspector General of New York State. Ms. Scott has been serving as the Acting Inspector General since February 2013.

While Ms. Scott served as Acting Inspector General, the New York State Inspector General’s Office has had numerous significant investigations, findings and reports, including:

• The investigation of a state employee for stealing nearly one million dollars in federal government funds that were intended to be used by New York State to provide rent subsidies for low income families. This investigation resulted in the federal prosecution and conviction of this state employee.

• The investigation of improper lab practices in the Monroe County Public Safety Laboratory, which involved the destruction of key evidence in criminal cases in that region.

• An investigation which led to the indictment of the director of a Bronx not-for-profit corporation for bribery. The Inspector General’s investigation revealed the director received thousands of dollars in home improvements from contractors with whom his not-for-profit was doing state business, and who received government-funded renovation contracts intended to assist low and middle income residents.

• An investigation that found mismanagement, faulty procurement practices and security lapses at the New York State Fair. The investigation resulted in sweeping changes at the State Fair.

• In 2013 Ms. Scott trained the heads of all Executive branch agencies and authorities, as well as their chief counsels and ethics officers. Her statewide presentations provided uniform standards to the Executive branch, including codes of conduct and best practices to ensure integrity and the efficient operation of state government.

 

Teacher terminated after rejection constructive criticism of her ineffective teaching methods


Teacher terminated after rejection constructive criticism of her ineffective teaching methods

A tenured New York City teacher challenged her termination following a disciplinary arbitration hearing. Supreme Court dismissed her Article 75 petition and confirmed the New York City’s cross motion to confirm the arbitration award.

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The decision notes that “Adequate evidence in the record supported the Hearing Officer's determination” that the teacher was guilty of multiple specifications charging her with failure to follow procedures and carry out normal duties, and incompetent and inefficient service during three school years.

Further, said the court, evidence in the record showed that the teacher was either unwilling or unable to implement suggestions and constructive criticism of her ineffective teaching methods.

Quoting the Pell Doctrine [Pell v Board of Education, 34 NY2d 222], the Appellate Division said that under the circumstances the penalty of termination “does not shock our sense of fairness.”

The decision is posted on the Internet at:


May 02, 2013

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge


Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge
New York City Office of Administrative Trials and Hearings,OATH Index No 911/13

The New York City Administration for Children’s Services filed eight disciplinary charges, alleging, among other acts of misconduct, that a Juvenile Counselor employed by Children's Services failed to immediately investigate, report, and document a reported incident of alleged child abuse at a juvenile detention center and then later failed to cooperate fully in an investigation of the matter.

The employee failed to appear at the hearing as scheduled. His attorney, however, did appear at the hearing and stated that she had made numerous attempts to contact the employee by Federal Express, by mail, and by telephone, but was unsuccessful. The attorney provided OATH Administrative Law Judge Ingrid M. Addison with proof that she had notified the employee of the hearing date and had notified the employee that she might withdraw representation if she did not hear from him.

The employee’s attorney, based on the employee’s failure to communicate with her, asked to be relieved as counsel pursuant to §1-12(a) of OATH’s Rules of Practice.*

Judge Addison granted the attorney's motion because the employee’s failure to communicate with her rendered her representation of the individual unreasonably difficult and because the ALJ could foresee no “material adverse effect on the interest of [the employee]."

The ALJ then proceed to hold the disciplinary hearing in absentia** and found that: Children’s Services 

[1] Children’s Services had proven seven of its eight allegations;

[2] That there was undisputed evidence of the employee’s misconduct; and 

[3] That there was no mitigating circumstance for the employee’s failure to perform his duty..

Children’s Services had requested a 45-day suspension without pay. Judge Addison agreed that this was an appropriate penalty under the circumstances and recommended that the employee be suspended without pay for forty-five days.

* §1-12(a), Chapter 1, Subchapter B, of OATH’s Rules of Practice provides as follows: An attorney who has filed a notice of appearance shall not withdraw from representation without the permission of the administrative law judge, on application. Withdrawals shall not be granted unless upon consent of the client or when other cause exists as delineated in the applicable provisions of the Code of Professional Responsibility.

** The matter proceeded as an inquest after the Children’s Services presented its proof of service of the notice of the hearing by certified and regular mail addressed to the employee’s address on file with Children’s Services. The certified mailing to the employee was returned by the United States Postal Service marked “unclaimed.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-911.pdf

May 01, 2013

Governor Cuomo makes millions of additional records available on the Internet


Governor Cuomo makes millions of additional records available on the Internet

On May 1, 2013, Governor Andrew M. Cuomo made millions of additional records from multiple government agencies available on New York’s new, comprehensive data transparency website, Open.ny.gov, which was launched earlier this year to provide user-friendly, one-stop access to data from the state, localities and the federal government.

The data featured in a new “Transparency” sectionon the website includes: campaign contribution and expenditure records from the New York State Board of Elections dating back to 1999; New York State lobbying and enforcement records from the Joint Commission on Public Ethics; attorney registration as far back as 1898 from the Office of Court Administration; the New York State employee phone directory; and information on public authorities from the Authorities Budget Office.

The voluminous additional data can be searched by keyword, cross-referenced with other public datasets, downloaded for analysis, and graphed, mapped or charted using the tools available through the website.

The data published includes:

· Campaign Contributions, Expenditures, and Committees: Over seven million records of campaign contributions and expenditures dating back to 1999, along with a complete list of candidate committees registered with the Board of Elections;

· Lobbying: Complete disclosure data from the last six years of lobbying reports required under New York State law from lobbyists, clients, and public corporations. Data includes the identities of lobbyists and clients, lobbying expenditures and compensation, and subjects lobbied. The site also includes information newly required under the Public Integrity Reform Act of 2011 on client sources of fundingand lobbyist- and client-reportable business relationships, as reported to the Joint Commission on Public Ethics, plus information on lobbyist disbursement of public money;

· Attorney Registration: New York State attorney registration information, including the admission date, current status (i.e., registered, disbarred, deceased, etc.), and other public information about all attorneys registered in New York State, including attorneys admitted to practice law as far back as 1898; and

· Budget Vetoes: To further increase transparency in the New York State budget process, the site now provides information about budget vetoes in the current budget. Following the enactment of the 2013-14 budget, Governor Cuomo vetoed 202 items that were added by the Legislature. Searchable, downloadable information on these vetoes is now available, including the justification for each item.

Open.ny.gov also now contains data on enforcement activities taken by the Joint Commission on Public Ethics and its predecessors dating back to 2008 and by the New York State Office of the Inspector General dating back to 2010; a new integrated list of public authorities as identified by the Authorities Budget Office; and a searchable, downloadable directory of New York State government employees, including office telephone numbers.


A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”


A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”
Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, Appellate Division, Second Department

Although contracts of employment are the exception with respect to most employments in the public sector, the decision by the Appellate Division in Hunt v Raymour and Flanigan, a decision involving a lawsuit between a former employer in the private section and its former employee, may be worthy of note by some public employers.

Thomas Huntsigned an application for employment with Raymour & Flanigan (R & F) that included a clause providing that "any claim or lawsuit relating to [his] service with [R & F] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit." The employment application also stated that Hunt “agreed that he waived any statute of limitations to the contrary.”

Hunt was terminated by R & F some three years later. More than six months after his employment was terminated, Hunt sued R & F and one of R & F’s vice presidents seeking to recover damages based on alleged “employment discrimination and retaliation in violation of Executive Law §296 and [the] Administrative Code of the City of New York §8-107.”

Supreme Court denied R & F motion to dismiss the first and second causes of action asserted by Hunt against R & F in the action he had filed against it and R & F filed a notice of appeal challenging this aspect of Supreme Court's ruling *

Considering R & F’s appeal, the Appellate Division explained that when reviewing a motion to dismiss a complaint pursuant to CPLR §3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." In this instance, said the court, R & F submitted documentary evidence in the form of the employment application, which demonstrated that Hunt contractually agreed to commence any claim or lawsuit against R & F no more than six months after the date of the employment action that was the subject of the claim or lawsuit.

Significantly, the court stated that "The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations [and] [a]bsent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" by the courts.

Accordingly, the Appellate Division ruled that Hunt’s arguments that the shortened limitations period set forth in the employment application was not applicable or was unenforceable were without merit. Thus, as Hunt commenced this action more than six months after the date on which his employment terminated, his first and second causes of action insofar as asserted against R & F should have been dismissed by Supreme Court pursuant to CPLR 3211(a)(1).

* The Appellate Division noted that “R & F's contentions on appeal that the third and fourth causes of action should have been dismissed [by Supreme Court] are not properly before this Court.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02715.htm

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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