A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

Delanoy v City of White Plains, 2014 NY Slip Op 07615, Appellate Division, Second Department

Joseph J. Delanoy, Jr sued the City of White Plains seeking to recover damages for personal injuries.

The jury issued a verdict on the issue of liability finding White Plains 58% at fault in the happening of the accident. The City appealed the jury’s finding that there was a “special relationship” and asked the Appellate Division to set aside the verdict on the issue of liability or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence.

The Appellate Division denied the City’s appeal.

The court held that there a “special relationship” between the City of White Plains and Delanoy was created when the City's plumbing inspector directed Delanoy to perform a clearly unsafe air pressure test.

The Appellate Division explained that the Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship between a public entity and a plaintiff:

"(1) the plaintiff belonged to a class for whose benefit a statute was enacted;

“(2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or

“(3) the municipality took positive control of a known and dangerous safety condition"

In this instance only the third situation was at issue, i.e.: Did the City take positive control of a known and dangerous safety condition?

Notwithstanding the City’s arguments to the contrary, the Appellate Division ruled that the jury's determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to Delanoy’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence.

Neither, said the court, was the jury's determination that the inspector was performing ministerial acts rather than discretionary acts contrary to the weight of the evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07615.htm

New York State Comptroller Thomas P. DiNapoli releases school audits

New York State Comptroller Thomas P. DiNapoli releases school audits

Source: Office of the State Comptroller

On November 18, 2014, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the school districts listed below.

Click on text highlighted in color  to access the audit report for the school district.

Brewster Central School District – Financial Condition (Putnam County)
District officials have taken appropriate action to manage the district’s financial condition. Officials provided for effective financial planning and management by ensuring unrestricted unappropriated fund balance levels are in accordance with statutory requirements, and budget estimates and reserve balance levels are reasonable.

General Brown Central School District – Financial Condition (Jefferson County)
The board has balanced recent budgets with appropriations of fund balance and reserves while limiting tax increases, resulting in a deficit unrestricted fund balance of $435,655 at the end of fiscal year 2012-13. District expenditures, specifically those related to employee benefits, increased by more than $1.2 million since the 2008-09 fiscal year despite the elimination of 46 positions over the last four fiscal years.

Onondaga Central School District – Non-payroll Disbursements (Onondaga County)
District officials need to improve internal controls over non-payroll disbursements. The accounts payable clerk performed all non-payroll disbursement processes for the general fund with little oversight or any other compensating controls. The clerk is responsible for recording all general fund non-payroll disbursement transactions, initiating check printing, receiving printed checks and distributing checks.

Spencer-Van Etten Central School District – Financial Condition (Tioga County)
Over the last three fiscal years, the district developed budgets that were reasonable and based on historical or known expenditures. District officials have also implemented multiple cost-savings measures in an effort to minimize expenses. For example, due to anticipated increases in health insurance premiums, the district switched to lower cost health insurance coverage during the 2011-12 fiscal year and achieved savings of approximately $850,000 in the first year of the change.

Watervliet City School District – Fiscal Stress (Albany County)
The board did not adopt realistic, structurally balanced general fund budgets or adequately monitor the financial activity of capital projects to ensure fiscal stability. The board also did not adopt a policy regarding establishing an adequate level of unrestricted fund balance to maintain. As a result, the general fund’s financial condition has diminished in recent years. In addition, the district spent $741,000 more than the total amounts authorized for two projects causing a fund balance deficit in the capital projects fund in that amount.

White Plains City School District – Procurement of Professional Services (Westchester County)
District officials did not always seek competition for professional services and did not have documentation to support why contract providers were chosen for all professional service contracts. The district did not have adequate documentation to support the payment of certain claims made to professional service providers. 

Establishing seniority rights in the course of collective bargaining

Establishing seniority rights in the course of collective bargaining
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department

The Appellate Division held that Steven Bregman and the other plaintiffs [Bregman] in this action had waived their right to seniority credit through their teacher association's collective bargaining agreement with the Board of Education for the East Ramapo Central School District. To this end the court said that Supreme Court should have entered a judgment declaring that the relevant provision of the collective bargaining agreement governing seniority rights and the determination to deny Bregman seniority credit pursuant thereto was not illegal and invalid.

The court noted that such a waiver was not against public policy, as the Board of Education was allowed to establish a separate tenure area for administrators apart from the teaching tenure areas enumerated in 8 NYCRR 30-1.4.and Bregman did not establish that the positions in question constituted "instructional support services" as defined in 8 NYCRR 30-1.1(j).

However, certain “seniority provisions” in a collective bargaining agreement may not be lawful and thus unenforceable as the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, demonstrates. The decision addressed the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in the event of a layoff.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date to be used to determine an individual's service for seniority purposes for layoff under State law.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But both §§80 and 80-a of the Civil Service Law provide that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and thus, in accordance with law, B would have greater seniority than A.

When the City laid off A rather than B, notwithstanding the fact that A had been employed by the City for a longer period than B because B had received his permanent appointment before A was permanently appointed, the Union grieved.

The Union contended that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh obtained a court prohibiting submitting the grievance to arbitration.

In the appeal that followed the Appellate Division sustained the City's decision and explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07610.htm

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Some limitations to obtaining information pursuant to New York State's Freedom of Information Law

Some limitations to obtaining information pursuant to New York State's Freedom of Information Law

Miller v New York State Div. of Human Rights, 2014 NY Slip Op 07742, Appellate Division, First Department

The Appellate Division sustained a Supreme Court ruling that the New York State Division of Human Rights did not violate the State’s Freedom of Information Law [FOIL] when it denied Jerald Miller’sFOIL request for certain documents.

Initially addressing a procedural issue, the Appellate Division said that although Supreme Court reviewed the Division’s determination using the "arbitrary and capricious" standard instead of determining whether the denial "was affected by an error of law", the matter need not be remanded since Division correctly determined that FOIL did not require disclosure of the materials sought by Miller.*

As to the merits of Miller’s appeal, the Appellate Division explained that the Division properly withheld the four legal opinions he had requested pursuant to the "intra-agency materials" exemption set out in Public Officers Law § 89[2][g] as these documents were essentially "predecisional memoranda” prepared to assist the Division in its decision-making process and were not final agency determinations or policy. Rejecting Miller’s argument to the contrary, the court said that the opinions neither fell under the exceptions to this exemption set out in Public Officers Law §89[2][g][i]), which is applicable with respect to “statistical or factual tabulations or data” nor Public Officers Law § 89[2][g][ii], which is applicable with respect to “instructions to staff that affect the public."

Citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, the Appellate Division said that three of the four opinions are "specifically exempted from disclosure by state . . . statute" whereby Executive Law §297(8) prohibits the Division from making public information contained in reports obtained by it with respect to a particular person without that individual's consent.

As to Miller’s request for the Division’s "Case Management System Legal Resources Notebook," the court ruled that this was not a record within the meaning of FOIL. The “Notebook,” said the Appellate Division, is not "information" but rather a software application providing the means of accessing information in the Division’s electronic file system. Further, said the court, the Division also properly withheld the user's manual for that application as its disclosure "would jeopardize [the Division’s] capacity . . . to guarantee the security of its . . . electronic information systems."

Finally, the Appellate Division ruled that as Miller “has not substantially prevailed, he is not entitled to attorney's fees and costs pursuant to Public Officers Law §89(4)(c).”

* Where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.See CPLR 7803[3]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07742.htm
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