The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance

2015 NY Slip Op 03787, Appellate Division, First Department

Supreme Court denied a teacher’s [Teacher] petition seeking to annul the appointing authority’s sustaining unsatisfactory rating given Teacher for the school year in question.

Teacher appealed but the Appellate Division affirmed the lower court’s determination.

Teacher had contended that the appointing authority had “violated Department of Education Bylaw §4.3.3,” alleging that the assistant principal responsible for three of the four unsatisfactory observation reports was not present at the administrative hearing at which Teacher had challenged the performance rating he had received.

The Appellate Division first addressed a procedural issue – was Teacher’s complaint with respect to the absence of the assistance principal from the hearing ripe for the court’s review. It decided that Teacher’s claim regarding the absence of the assistant principal “was unpreserved” as Teacher did not raise this issue before the agency, citing Seitelman v Lavine, 36 NY2d 165 and thus could not be considered in this appeal.

Not withstanding the rejection of Teacher’s challenge on procedural grounds, the court said that regardless of the failure of Teacher to preserve the matter for the purpose of appeal, the record showed that the appointing authority’s determination had a rational basis as it was supported by the testimony of the school principal, who conducted a formal observation of Teacher’s performance and reached the same conclusions as the assistant principal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03787.htm

An employee injured on the job may sue for injuries he or she subsequently suffered while being transported to a hospital for treatment for his or her job related injuries

An employee injured on the job may sue for injuries he or she subsequently suffered while being  transported to a hospital for treatment for his or her job related injuries

2015 NY Slip Op 03506, Appellate Division, Second Department

A correction officer [Officer] sustained an injury in the course of his employment at a New York City corrections facility.  While Officer was being transported in a New York City Fire Department ambulance to a local hospital, the ambulance was involved in a motor vehicle accident. 

Officer applied for workers' compensation benefits for the injuries he sustained in the prison. In addition, Officer filed a lawsuit against, among others, the City of New York, the New York City Fire Department and the ambulance driver [Defendants] seeking damages for the injuries he allegedly sustained as a result of the motor vehicle accident that  occurred while he was being transported to the hospital.

Supreme Court denied Defendants’ motions to {1] amend its answer “to add an affirmative defense based on the exclusivity of the Workers' Compensation Law,” and [2] for summary judgment “dismissing the complaint insofar as asserted against them.” 

Defendants appealed but the Appellate Division sustained the Supreme Court’s ruling.

While "In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment," the Appellate Division said that even if a plaintiff received workers' compensation benefits, he or she is not precluded from commencing a separate action based on subsequent negligent conduct to recover damages for injuries causally related to the initial on-the-job injury, "but which did not arise out of or in the course of the plaintiff's employment.”

The Appellate Division found that such was the case in this action, explaining that notwithstanding Officer’s filing a claim for workers' compensation benefits for the injuries he sustained “on the job,” he was not precluded from commencing a separate action to recover for damages he allegedly suffered that were “caused by separate injuries that occurred outside the scope of his employment” – i.e., in the course of his being transported to a hospital by ambulance. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03506.htm

A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."

A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."

2015 NY Slip Op 03496, Appellate Division, Second Department

Among the defendants in this wrongful death action involving a police officer [Officer] were Officer’s employers: the Town Police Department and Town [Defendants]. 

The complaint alleged that Officer was handling his "off-duty handgun" when it went off and killed his friend, the deceased victim [Victim]. The Administrator of Victim’s estate and family members sued the Defendants, alleging, in relevant part, that Defendants were liable for the Victim’s death because Defendants were negligent in the hiring, retention, and supervision” of Officer. It was also claimed that the Defendant's were "vicariously liable" for Victim’s death pursuant to the doctrine of respondeat superior.

Supreme Court denied Defendants’ motions to dismiss them from the action “for failure to state a cause of action.” Defendants appealed. The Appellate Division ruled that Supreme Court should have granted Defendants’ motions to dismiss the complaint as to them.

As to the Administrator’s “negligent hiring, retention and supervision” claims, the Appellate Division explained that a necessary element of this cause of action is that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury." 

Here, said the Appellate Division, the evidentiary material submitted by Administrator failed to demonstrate that Defendants were guilty of the alleged “negligent hiring, retention, or supervision” of Officer.

Addressing that part of  Administrator’s compliant that alleged Defendants were vicariously liable pursuant to the doctrine of respondeat superior, the Appellate Division said that the doctrine of respondeat superior requires a showing that alleged wrongdoing committed by the employer’s employee occurred while that employee was acting “within the scope of employment and in furtherance of the employer's business."

The Appellate Division found that although Administrator’s complaint “generally alleged” that Officer was acting within the scope of his employment and in furtherance of the Defendant’s' purpose, the fact alleged by Administrator was “not a fact at all” and “no significant dispute exists regarding it.”  Again, said the Appellate Division, the Supreme Court “should have granted” Defendants’ motion to dismiss the part of Administrator’s cause of action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03496.htm