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April 06, 2015

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance


Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance
2015 NY Slip Op 02775, Appellate Division, Second Department

Shortly before graduation a student [Student] in the nursing program at a Community College (College) was dismissed from the program for alleged academic deficiency. The student was told that she would receive a failing grade in a course and was given the option instead to withdraw from that course and repeat it.

Student declined to withdraw from the course and was dismissed from the program. She sued the College, challenging her dismissal and also sought damages for, among other things, breach of contract and violation of her right to due process.

Supreme Court denied Student’s petition, dismissed the proceeding and Student appealed.

The Appellate Division sustained the Supreme Court ruling explaining that unlike disciplinary action taken against a student, an institution’s assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators. According, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations.

The court further explained that although determinations made by educational institutions concerning the academic performance of their students are not completely beyond the scope of judicial review, "that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute."

In this case, said the court, the Student’s professors at the College “made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course.” Further, there was no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational, nor was there any evidence of a violation of the New York or United States Constitution, or of any statute.

As to Student’s claim that she was deprived of due process, the Appellate Division commented that the requirements of due process are less stringent when a student is dismissed for academic reasons than when a student is dismissed or suspended for disciplinary reasons. The court found that with respect to academic evaluations, Student was not entitled to a formal hearing, and the procedure utilized by the College was adequate.

The decision is posted on the Internet at:

April 03, 2015

Applying the Doctrine of Primary Jurisdiction


Applying the Doctrine of Primary Jurisdiction
2015 NY Slip Op 02769, Appellate Division, Second Department

A teacher [Educator] sued the school district when it declined to add two years to her “seniority credit.” Supreme Court granted the school district’s motion “pursuant to the doctrine of primary jurisdiction to the extent of staying the proceeding so that the parties could bring the issue before the New York State Commissioner of Education.” Educator appealed.

The Appellate Division affirmed the Supreme Court’s ruling with costs awarded to the school district.

The court explained that "The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions."

This doctrine applies, said the Appellate Division, "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views," citing Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147.

In this instance the question before the court concerned the appropriate calculation of Educator's seniority and thus, said the Appellate Division, fell within the special knowledge and expertise of the Commissioner of Education.

Thus, said the court, Supreme Court properly granted the school district’s motion to the extent of staying the proceeding so that the parties could bring the issue before the Commissioner.

The decision is posted on the Internet at:

April 02, 2015

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage enjoyed by the individual at the time of his or her retirement


A collective bargaining agreement may establish a vested right to a continuation of the same health coverage as a retiree enjoyed by the individual at the time of his or her retirement
Guerrucci v School Dist. of City of Niagara Falls,  2015 NY Slip Op 02617, Appellate Division, Fourth Department

Reversing a ruling by Supreme Court, the Appellate Division held that the “individual plaintiffs are entitled to the health insurance coverage provided in the collective bargaining agreement in effect at the time each individual plaintiff retired” and “those individual plaintiffs eligible for conversion of health insurance coverage ‘supplemental to Medicare’ are entitled to such coverage that, when combined with Medicare, equals the health insurance benefits prior to such conversion.”

Retired administrators [Plaintiffs] who were employed by Niagara Falls City School District alleged that the School District was in breach of contract with respect to its providing health insurance to these retirees.

The Appellate Division noted that the parties did not dispute that the language at issue in the various CBAs is unambiguous and, at oral argument, the School District had conceded that this case is controlled by Kolbe v Tibbetts (22 NY3d 344).

In Kolbe the Court of Appeals held that the relevant collective bargaining agreements [CBAs] “establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.”

Here the 1984-1987 and 1987-1990 CBAs provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Cross/Blue Shield coverage in effect at the time of his or her retirement, excluding dental coverage and major medical insurance, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage" while the 1990-1994 CBA provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Shield coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those retirees entitled to conversion of that coverage to coverage that is "supplemental to Medicare." The 1994-1997 and later CBAs provide that "[a]ny administrator who retires . . . shall continue to receive medical coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those entitled to conversion of that coverage to coverage that is "supplemental to Medicare."

The court said that it:

1. It agreed with Plaintiffs that the plain meaning of the CBA provisions at issue is that, upon retirement, a retiree will receive the health insurance coverage that the retiree was receiving prior to retirement, until the retiree becomes eligible for Medicare;* and

2. It agreed  with Plaintiffs that the supplemental coverage provided for in the CBAs required that School District provide health insurance coverage that, when combined with Medicare, equaled the health insurance benefits that the retirees enjoyed prior to qualifying for Medicare, 

The court explained that in interpreting a CBA, "it is logical to assume that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

In the words of the Appellate Division, “In view of our determination that the CBAs prevented [the School District] from reducing the retirees' health insurance benefits during retirement and that the intent of the CBAs was to ‘fix [the retirees'] rights to coverage as of the time they retired’ ... we conclude that the provision for ‘coverage . . . which is supplemental to Medicare’ means coverage that when combined with Medicare is equivalent to the health insurance coverage that the retirees enjoyed prior to becoming eligible for Medicare.”

* The Appellate Division noted that the CBAs provided that when certain retirees "reache[d] his or her sixty-fifth (65th) birthday and qualifie[d] for medical insurance under Social Security, the coverage shall be changed to that which is supplemental to Medicare."

The decision is posted on the Internet at:

April 01, 2015

Police officer disciplined for attempting to “fix tickets”


Police officer disciplined for attempting to “fix tickets”
2015 NY Slip Op 02686, Appellate Division, First Department

After a disciplinary hearing the hearing officer found the police officer was guilty of asking other officers for help in preventing the “prosecution of summonses issued to other individuals” on two occasions.

The Police Commissioner, adopting the findings of the hearing officer, determined that the police officer had engaged in conduct prejudicial to the good order, efficiency or discipline of the police department. The penalty imposed: a one year of suspended-dismissal probation, a five days suspension without pay and the forfeiture of 25 vacation days.

In response to the police officer’s appeal the Appellate Division unanimously confirmed the Police Commissioner’s determination which decision the court held was  supported by substantial evidence.

The Appellate Division commented that the inference of the hearing officer that police officer had attempted to prevent “the prosecution of summonses” on two occasions was rationally based on police officer's admission that he requested another officer take care of summonses "[a] couple of times," explaining that it perceived no basis in the record for disturbing the hearing officer's credibility findings.

The decision is posted on the Internet at:


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