The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

2013 NY Slip Op 04321, Appellate Division, Second Department

The Village Police Commissioner and the Village had signed a contract that provided that the Commissioner was to earn $5,000 more than the highest-ranking lieutenant for each year that he served as Commissioner. In June 2010, the Commissioner learned that he would not be reappointed as Commissioner and alleged that he subsequently learned that his Lieutenants were earning more than he had been earning.

The Commissioner filed a written claim with the Village on November 2, 2010 alleging that the Village had breached its contract with him from 1999 through 2010 and on September 28, 2011commenced an action in Supreme Court pursuant to CPLR Article 78 alleging breach of contract and sought to “recover the wages that allegedly were owed him for those years.”

Supreme Court denied the Village’s motion [1] to dismiss so much of the Commissioner’s complaint that sought to recover payments allegedly due him prior to March 28, 2010 and [2] to transfer the Commissioner’s complaint to District Court, Nassau County. The Village appealed.

The Appellate Division reversed Supreme Court’s ruling and remanded the matter to District Court, Nassau County. In the words of the court, ”the damages sought [by the Commissioner] in connection with the portion of the complaint that is not time-barred fall within the jurisdictional limit of the District Court. Therefore, removal to that court is appropriate.”

Addressing the issue of the timeliness of the Commissioner’s petition, the Appellate Division [1] said that §9802 of the Civil Practice Act and Rules provides that, "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued," and [2] explained that “Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment.”

The Village had argued that the Commissioner's causes of action alleging breach of contract accrued at the end of each year that the Commissioner allegedly was not paid in accordance with his contract. The Appellate Division agreed, ruling that as the Commissioner’s action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the Commissioner sought to recover damages accruing prior to March 28, 2010, i.e., 18 months prior to the commencement of his action.

Significantly, the Appellate Division held that the Commissioner’s reliance on “his lack of knowledge that the several breaches had occurred” did not toll the running of the statute of limitations for bringing a timely action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04321.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

Reports issued during the week ending June 15, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Watertown Boasts Strong Finances

The City of Watertown has maintained a stable tax base, developed healthy revenue streams and built up rainy day reserves, according to a fiscal profile of the city issued by State Comptroller Thomas P. DiNapoli. The report was released June 12, 2013 in conjunction with the Comptroller’s 2013 Local Government Leadership Institute in Watertown.

DiNapoli: Auditors Uncover $3 Million in Improper Unemployment Insurance

State Comptroller Thomas P. DiNapoli uncovered up to $3 million in inappropriate unemployment insurance payments made by the Department of Labor, including payments to recipients who were ineligible because they were employed, had collected more than the maximum weekly benefits or were not authorized to work in the United States, according to a reportreleased June 14, 2013.

Comptroller DiNapoli Releases Municipal Audits

On June 13, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of:

the Village of Belle Terre;

the Town of Calicoon;

the Town of Gardiner;

the Town of New Berlin;

the Village of Nichols;

the Town of Pittsfield; and,

the Sylvan Beach Fire District.

Comptroller DiNapoli Releases Audits

On June 14, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed the following audits:

the Metropolitan Transit Authority;

the Office of General Services;

the Workers’ Compensation Program;

the Department of State; 

the Office of Children and Family Services; and,

the Division of State Police.

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

2013 NY Slip Op 03735, Appellate Division, Third Department

A public employee [Claimant] delivered his letter of resignation to the appointing authority indicating that he had been offered, and had accepted, a position at another facility.

Subsequently Claimant drove a motor vehicle after he had taken prescription medication and was arrested for “driving while ability impaired.” When his prospective employer learned of his arrest, it withdrew its offer of employment and Claimant’s former employer would not allow him to withdraw or retract his resignation.*

The Department of Labor initially disqualified Claimant from receiving unemployment insurance benefits, finding that he voluntarily left his employment without good cause.

Claimant appealed and after a hearing, an Administrative Law Judge overruled this determination. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge’s decision and Claimant appealed the Board’s ruling.

The Appellate Division affirm the Board’s decision, explaining "A claimant's conduct . . . with regard to accepting a new position is a critical element in determining whether separation from employment was for good cause."

In this instance, said the court, Claimant had a valid offer of employment at the time he tendered his resignation but he lost this offer through his own poor judgment in driving a motor vehicle after taking prescription medication.

Under these circumstances, said the court, substantial evidence supports the Board's finding that good cause did not exist for Claimant's voluntary departure from employment and that he was disqualified from receiving benefits and it found

* Given that Claimant worked in the field of substance abuse prevention, the Appellate Division said that his former employer was justified in refusing to allow Claimant to rescind his resignation. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03735.htm

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

Source: Office of the Governor

On June 13, 2013, Governor Andrew M. Cuomo released provisional open data guidelines for state agencies and public authorities to participate in Open.ny.gov. New York is the first state in the nation to publish its provisional open data guidelines* and seek public comment on GitHub, an open source platform that allows for open collaboration and sharing. Public comment is open until September 1, 2013.

Governor Cuomo said. “This transparency website is a coordinated effort by all of state government, so today’s provisional open data guidelines will provide direction to state agencies and authorities on how to catalogue and share their data on Open.ny.gov. I encourage New Yorkers to submit their comments as we work to build a new level of openness in government.”

On March 11, 2013, the Governor issued Executive Order 95** along with launching Open.ny.gov. The Executive Order directed state agencies, for the first time, to review and catalogue data they collect, and take steps to make public data available on Open.ny.gov in accordance with guidelines developed by the NYS Office of Information Technology Services (ITS).

These guidelines are designed for use by both covered state entities and other government entities not covered by Executive Order 95 including localities. The guidelines will help with identifying, reviewing, and prioritizing state data for publication. The Executive Order directs ITS to encourage public input and finalize the guidelines in the coming months.

Robert Freeman, Executive Director of the Committee on Open Government, said, “The use of Github represents a first among the fifty states, and will serve as the equivalent of a chat room open to the world. It will enable thoughtful and creative people to make contributions and communicate in a manner that can only improve the operation of government.”

Open.ny.gov is a comprehensive state data transparency website that provides user-friendly, one-stop access to open data from New York State agencies, localities, and the federal government. "Open data" refers to data that is free from restrictions and can be released in a format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. Open.ny.gov provides "open data" access and transparency to the wealth of information collected and maintained by the state and local governments. It allows researchers, citizens, business, and the tech community direct, centralized access to high-value government data to search, explore, download, and share. 

 * The Provisional Open Data Handbook is posted on the Internet at:

http://nys-its.github.io/open-data-handbook/

** Executive Order 95 is posted on the Internet at: http://www.governor.ny.gov/executiveorder/95

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

2013 NY Slip Op 04102, Appellate Division, First Department

The Port Authority of New York and New Jersey advised an employee that disciplinary action was being taken against him because he failed to obtain the Authority’s permission to engage in outside employment that was required to be so employed. 

Subsequently the employee submitted his resignation from his position with the Port Authority and then filed an application to participate in the Authority’s Vested Benefits Program “as a retiree.”

The Port Authority rejected the individual’s application to participate in its Vested Benefits Program because was not an employee “in good standing” when he submitted his resignation from his position. As a matter of policy the Authority deemed that “disciplinary action is pending” if the employee has been informed that disciplinary charges are being prepared.

According to the Appellate Division’s decision, the Authority’s rejection of the individual's application to participate in the Authority's "Vested Benefit Program" was based on its long standing policy that an employee who resigns while disciplinary charges are pending is not “in good standing and is therefore not entitled to such benefits.”

As the individual had been advised that disciplinary charges were being prepared prior to the effective date of his resignation, the Appellate Division ruled that the Authority’s rejection of his application to participate in the Authority’s Vested Benefits Program was  “not arbitrary and capricious or affected by an error of law.”

The court then indicated that the Authority had “reasonably complied with its own regulations when it determined that the lack of good standing disqualified petitioner from eligibility to participate in the Vested Benefits Program.”

The decision is posted on the Internet at:       

http://www.nycourts.gov/reporter/3dseries/2013/2013_04102.htm

Tenure by estoppel

Tenure by estoppel

2013 NY Slip Op 04006, Appellate Division, Second Department

Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

When a probationary teacher was denied tenure prior to the end of his probationary period, he claimed that he had attained tenure by estoppel.

According to the decision, the Board of Education had employed the teacher [Educator] as a per diem substitute teacher from September through the following June. Upon Educator’s completion of that academic year he appointed as full time teacher subject to the satisfactory completion of a two-year probationary period commencing July 1, 2008 through to June 30, 2010. The decision notes that Educator was entitled to a “one-year credit” toward the statutory three-year probationary period based on his prior tenure service in another district as provided by Education Law §3012[1][a].

What was ultimately to prove critical to the resolution of Educator’s claim that he had attained tenure by estoppel was a revised “letter of intent” he had signed that memorialized his probationary appointment and which specified that he would become eligible for tenure on July 1, 2010.

In May 2010, the superintendent of schools advised Educator that would be recommend the termination of his probationary appointment and on June 23, 2010 the Board voted to terminate Educator’s employment effective June 25, 2010.

Educator challenged the Board’s action and filed an Article 78 seeking a court order directing his reinstatement to his former contending that the Board did not have the authority to summarily terminate his employment because he had acquired tenure by estoppel.

Supreme Court denied Educator’s petition.

The Appellate Division sustained the Supreme Court’s decision, explaining that Educator had failed to demonstrate that the Board unduly delayed his formal appointment to his position or that he had otherwise acquired tenure by operation of law.

The court said that it was undisputed that Educator signed a revised letter of intent. This letter was held to have superseded all prior agreements and specified that Educator would become eligible for tenure on July 1, 2010.

Educator, however, had already discharged from his employment prior to that date.

Accordingly, ruled the Appellate Division, the Supreme Court properly denied Educator’s petition and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04006.htm