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

November 12, 2013

A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification


A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification
2013 NY Slip Op 07250, Appellate Division, First Department
 
An individual seeking an appointment as a New York City Correction Officer [Candidate] filed an administrative appeal challenging the removal of his name from the eligible list. He successfully argued that he had been improperly disqualified for the appointment and his name was again placed on the eligible list for appointment.

However, Candidate’s claim that his winning the administrative appeal “entitled him to an appointment as a correction officer” was rejected by Supreme Court.

The Appellate Division agreed.

Restoring the name of a candidate to an eligible list, even one improperly earlier removed from the list, does not obviate the application of the so-called Rule of Three, Civil Service Law §61(1). The Rule of Three authorizes the appointing authority to select of any one of three persons with the highest rankings on an eligible list willing to accept the appointment or promotion.

In the event there are more that three eligibles certified for appointment because of “tied-scores,” the appointing authority may select any one of the eligibles certified to it.

For example, in the event one candidate had a score of 95, a second candidate had a score of 90 and 20 candidates had a score of 85, the names of all 22 eligibles would be certified for appointment and the appointing authority could select any one of the 22 individuals so certified for the appointment.

In contrast, had there been 20 eligibles with a score of 95, one eligible with a score of 90 and one eligible with a score of 85, the appointing authority could select any on of the 20 candidates certified have a score of 95 but could not “reach” either the candidate with a score of 90 or with a score of 85 unless there were 18 or 19 "declinations" of the offer of appointment, as the case may be, among those eligibles attaining a score of 95..

In some instances, a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14] may require the appointing authority to observe the “Rule of the List” or “The Rule of One,”* and appoint the person whose name is listed first on the certification.

As the Court of Appeals held in Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 N.Y.2d 526, Civil Service Law §61(1) grants the appointing authority broad discretion in the selection of candidates, including that of appointing a lower-scoring candidate over a higher-scoring one.

However, should the appointing authority be faced with a mandatory eligible list, it must either select one of those certified to it as standing highest on the eligible list within the meaning of the Rule of Three or elect to keep the position vacant.

Another issue considered by the Appellate Division in Candidate’s appeal focused on the refusal of DOC to have the circumstances underlying Candidate’s not being appointed to the position expunged from the record before DOC as well as expunging that portion of  DOC’s  record that indicated that that it did not to appoint him notwithstanding his name being restored to the eligible list and considering him, along with other eligibles, for appointment on three occasions.

The Appellate Division ruled that DOC’s rejection of Candidate’s request to expunge the material to which he objected from his record was neither arbitrary nor capricious and dismissed his appeal.

* Preferred and special military lists are subject to the “Rule of One” by operation of law. In this instance the appointing authority must either appoint the persons whose name is certified as "first" on the preferred or special military list or elect to keep the position vacant.

The DOC decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07250.htm

November 11, 2013

Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA


Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA
Source: Employment Law Daily - a Wolters Kluwer publication
Decision summarized by Kathleen Kapusta, J.D.

"An employee’s request for a laptop so he could work from home while recovering from surgery was a “far cry from a ‘sufficiently direct and specific’ request for an accommodation” that would put his employer on notice that he wanted assistance for his disability, the Tenth Circuit ruled in an unpublished decision.

"Accordingly, the appeals court affirmed summary judgment in favor of the employer on his ADA failure to accommodate claim.(Dinse v Carlisle Foodservice Products, Inc, November 6, 2013, Holmes, J)."

The full text of Ms. Kapusta’s article is posted on the Internet at:
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November 09, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013
Click on text highlighted in color  to access the full report

Comptroller DiNapoli noted that onMonday, November 11, we will celebrate Veterans Day across the country, remembering and honoring the individuals of all ages and backgrounds who have served in the United States armed forces since our nation was born. November 11th marks the end of World War I, then known as the Great War, in 1918, a conflict intended to make the world safe for democracy in which some 4 million Americans served, 200,000 were wounded and 100,000 gave their lives. After World War II, Armistice Day was renamed Veterans Day and reconceived as a day to celebrate the dedication, patriotism and fighting spirit of all U.S. military veterans.

At local parades and other gatherings, and in our homes, Veterans Day is an opportunity for us to come together to thank the men and women who have served for their sacrifice and bravery, and to reflect upon the principles they upheld in defending the United States of America.

Comptroller DiNapoli & A.G. Schneiderman Announce Arrests of Former Monroe County Public Officials and Business Executives in Elaborate Bid–Rigging Scheme

On November 6, 2013 Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the indictment of four individuals for an elaborate scheme to rig the bidding process for several multimillion–dollar contracts. Nelson Rivera and Robert Wiesner, both former Monroe County public officials, along with John Maggio and Daniel Lynch, two local business executives, have been charged with a total of 43 felony counts, including Money Laundering, Conspiracy, Falsifying Business Records, Offering a False Instrument for Filing, and Combination in Restraint of Trade and Competition.


DiNapoli: Immigrants Continue to Play Key Role in New York City Economy

Immigrants in New York City accounted for $210 billion in economic activity in 2011, or about 31 percent of New York City’s gross city product, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. While immigrants were hit hard by the recession, their wages rebounded strongly and exceeded pre–recession levels two years later.


DiNapoli: Former Clerk Admits to Stealing Village Funds

The former clerk–treasurer in the Steuben County village of Riverside was arrested Friday and charged with stealing more than $40,000 in village funds, State Comptroller Thomas P. DiNapoli announced.


DiNapoli: $4 Million Availabile for Veterans to Expand Their Businesses

With Veterans Day coming, New York State Comptroller Thomas P. DiNapoli Wednesday spotlighted the availability of $4 million in competitive fixed–rate small business loans for military veterans through the New York Business Development Corp.


DiNapoli Announces $500 Million Investment in Opportunistic Portfolio Asset Class

New York State Comptroller Thomas P. DiNapoli announced on November  8, 2013 that the $160.7 billion New York State Common Retirement Fund has made the first investment in its opportunistic asset class with a $500 million separate account commitment to Blackstone Tactical Opportunities Fund.


DiNapoli Releases Quick Start State Budget Analysis for 2014–15

State Comptroller Thomas P. DiNapoli projects the state’s tax revenues will grow by 2.5 percent to $90.1 billion in state fiscal year 2014–15, according to the Comptroller's annual Quick Start reportreleased Tuesday in accordance with the Budget Reform Act of 2007.


DiNapoli’s Office to Audit SUNY Upstate Medical University’s Contracts with MedBest

New York State Comptroller Thomas P. DiNapoli announced Friday that his office has scheduled an audit of the State University of New York Upstate Medical University’s contracts with MedBest Medical Management Inc.


Comptroller DiNapoli Releases Municipal Audits

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




the Ethelbert B. Crawford Public Library.
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November 08, 2013

What's in a name? that which we call a rose



What's in a name? that which we call a rose*
Source: Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law

Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law, referring to a response to a motion submitted to the court by an assistant attorney general for the State of Tennessee, states “I’ve seen half-a-dozen links to this unique and amazing pleading but the world will be a better place with one more.”

Here is yet another link to the pleading. 

Professor Froomkin summaries the situation as follows:

“The setup is that the prosecutor wanted the Judge to order the defense ‘not to refer to the Assistant District Attorney General as “the Government” during trial.'" Seems they thought being called “the government” was prejudicial or derogatory or hurt their feelings or something. Defense hits it out of the park. The really good stuff starts at the bottom of page two.” 

* William Shakespeare, Romeo and Juliet

The defendant’s attorney’s Response To Government's Motion In Limine II is posted on the Internet at:
http://www.scribd.com/doc/180035586/Response-to-Government-Moving-to-Ban-the-Word-Government
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