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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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Click on text highlighted in color  to access the full report

Department of Agriculture and Markets: Dairy Inspections (2014-S-16)

The department performed approximately 6,000 inspections at almost 1,400 locations in calendar year 2013. Despite staffing shortages, the department does not have a backlog of safety inspections; all mandated inspections had been completed for 2013. However, the staffing shortfalls have required it to cut back on other activities or goals it also considers important to quality control and safety such as delivery vehicle inspections, plant raw and pasteurized milk sampling, and butterfat testing.

Department of Health: Unnecessary Medicaid Payments for Children at Voluntary Agencies (Follow-Up) (2014-F-5)
An initial audit report issued in September 2012 found that DOH could save millions of Medicaid dollars annually by assessing and modifying certain policies and practices that drive the costs of medical care provided to children placed at voluntary agencies. In a follow-up report, auditors found DOH has made progress in implementing the recommendations made in the initial audit report. Of the report’s five audit recommendations, three were implemented, one was partially implemented and one was not implemented.

Department of Health: Medicaid Program: Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (2013-S-57)
Medicaid made $12,378,309 in overpayments for low birth weight payments that did not meet the necessary requirements. For example, Medicaid paid one managed care organization $99,044 for a low birth weight payment based on a reported newborn birth weight of 215 grams. However, the newborn’s actual birth weight was 3,215 grams. Medicaid should have only paid the MCO $3,232. There was an additional $949,681 in potential overpayments for similar claims at high risk of not meeting the billing requirements for supplemental low birth weight claims. Medicaid paid $548,404 in duplicate fee-for-service and managed care low birth weight newborn claims. At the time the audit fieldwork concluded, auditors recovered more than $7 million of the overpayments identified.

Department of Labor: Amusement Park and Fair Ride Safety (2014-S-47)
Auditors conducted site visits at 53 locations across the state covering almost 1,000 rides and found each of the rides being operated at all of the 53 locations had been inspected and permitted as required.

Department of Motor Vehicles (DMV): Driver Responsibility Assessment Program (2013-S-53)
DMV accurately assessed all program fees and either collected these fees or suspended the licenses or the privilege to obtain a license of drivers who did not pay. However, the DMV needs to improve its internal controls over manual adjustments made to the program database by ITS staff.

Metropolitan Transportation Authority: MTA-NYC Transit Medical Assessment Centers (2013-S-33)
On a unit cost basis, auditors determined that Medical Assessment Centers (MAC) run by the MTA to gauge drivers’ health and ability to do their jobs were not more costly than using a contractor that previously performed the work. Auditors also concluded that there are opportunities to attain further efficiencies in the MAC program.

New York City Department of Buildings: Outstanding Violations (Follow-Up) (2014-F-13)
An initial report, issued in December 2011, found that New York City Department of Buildings managers did not have effective systems in place to ensure hazardous violations were resolved quickly. In a follow-up, auditors found the department has made progress in addressing the issues identified in the initial report. Of the four prior recommendations, two have been implemented and two have been partially implemented.

New York State Health Insurance Program: Empire BlueCross BlueShield – Selected Payments for Special Items for the Period April 1, 2011 Through June 30, 2011 (Follow-Up) (2014-F-6)
In an initial report, auditors determined Empire did not have adequate controls to ensure special items were paid according to contract limitations. As a result, Empire made a net overpayment of $119,141 on 33 claims. In a follow-up report, auditors found Empire officials made considerable progress in implementing the recommendations made in the initial audit report. Of the three prior recommendations, two were implemented and one was partially implemented. Empire recovered the overpayments from hospitals, implemented controls to ensure payments for special items are made in accordance with hospital agreements, and made significant progress to ensure that future agreements with hospitals contain language limiting the reimbursement of special items.

Port Authority of New York and New Jersey: Vehicle and Heavy Equipment Purchase Program (Follow-Up) (2014-F-2)
An initial report issued in December 2010 found that the Port Authority generally did not follow required procedures to ensure that the acquisition of vehicles and heavy equipment was justified. In a random sample of 75 items that were purchased for $8.2 million, the Port Authority provided documentation for only two items for $192,279. In addition, the Port Authority included funds for vehicle and equipment rentals in its annual Purchase Program. Auditors also found that the car service contract amounts were excessive compared to the amount the Port Authority actually spent. In a follow-up, auditors found the Port Authority has made some progress in addressing the issues identified earlier. Of the eight prior recommendations, two were implemented, and three were partially implemented and three were not implemented.

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Deleting e-mails sent by the supervisor

Deleting e-mails sent by the supervisor

OATH Index No. 2553/14

The appointing authority filed disciplinary charges against an employee charging the individual with having deleted 27 of the 29 of the e-mails sent by her supervisor without having read them and disobeying an order not to delete e-mails transmitted by the supervisor.

Testimony presented at the hearing included a statement by the employee’s supervisor that he had “received via e-mail notices that [the employee] had deleted without reading … e-mails on which he had copied [the individual].

OATH Administrative Law Judge Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges as the evidence in the record did not establish that the employee was given an order to retain the e-mails. Further, explained the ALJ, the appointing authority “failed to prove that even if [the employee] had deleted the e-mails it would have constituted misconduct. Misconduct may be premised on carelessness or negligence, as well as willful or intentional conduct.”

In the words of the Administrative Law Judge: “I find that [the employer] failed to establish by a preponderance of the evidence that [employee] committed misconduct and recommend that the charges be dismissed.”

Among Judge Gloade's finding: 27 of the 29 of the emails were deleted on a Sunday morning and that the appointing authority failed to present any evidence that the employee was at work, or had remotely accessed her e-mail account, at that time.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2553.pdf
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