Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Gakhal v Kelly, 2016 NY Slip Op 00003, Appellate Division, First Department

Supreme Court dismissed Paramjit Gakhal’s Article 78 petition seeking an order annulling the NYC Police Pension Fund’s determination rejecting her application for accidental disability retirement (ADR) benefits.

The Appellate Division, Judge Sweeny dissenting,* reversed the Supreme Court’s determination “on the law” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

Gakhal’s injury occurred on the first day of her learning to ride a motor scooter as part of her normal police training. She lost control of the scooter while navigating on a motor scooter obstacle course and “crashed into a metal barrier at a speed of 40 miles per hour.” The barrier and scooter then both fell on top of Gakhal.

The Appellate Division, noting that an accident for the purposes of claiming eligibility for ADR is defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," and that the commanding officer of the training unit characterized the incident as "unexpected," concluded that Gakhal’s injury was the result of an event that qualified her for ADR benefits.

The court, citing Becker v Ward, 169 AD2d 453, explained that while injuries sustained during routine training exercises typically may not qualify for ADR benefits, ruled that in Gakhal’s case the loss of control of the scooter she was operating, coupled with the scooter's acceleration, “appears to have ‘been sudden and out of the ordinary,’” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

* Judge Sweeny, in his dissent, said “although the commanding officer's subjective observation that the incident was ‘unexpected’ is favorable for [Gakhal], there is credible objective evidence that the incident was not an ‘accident’” and opined that “the Board's determination must stand.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00003.htm

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Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Faisal v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09431, Appellate Division

Muhammad Faisal brought an Article 78 action to review a determination of the New York State Department of Motor Vehicles Appeals Board confirming a determination of an administrative law judge [ALJ]. The ALJ, after a hearing, found that Faisal violated Vehicle and Traffic Law §1180(d), speeding, and revoked his driver license.

The Appellate Division confirmed the Appeals Board ruling on the merits, explaining that the Board’s determination was supported by substantial evidence.

The court noted that the ALJ had “properly relied on the police witness's testimony concerning his visual estimate of the speed of the petitioner's vehicle as well as the reading of the radar device.”

The Appellate Division noted that there was a significant difference between the posted speed limit, which was 40 miles per hour, and the 70 miles per hour at which the police witness visually estimated the speed of Faisal’s vehicle, an estimation that was promptly confirmed by a radar indication that the actual speed was 71 miles per hour.

In the present action Faisal raised certain evidentiary objections that the court said were not raised at the administrative hearing, “when any alleged error might have been cured” and thus these arguments were unpreserved for review.

Also noted were the alleged “minor gaps and errors in the hearing transcript” but, said the court, such alleged omissions do not preclude meaningful review of the hearing.

Faisal’s petition alleged that a police sergeant was the sole witness at the hearing. In contrast, said the court, there is no indication anywhere in the record that Faisal was sworn in as a witness.

However, even assuming that the transcript of the hearing omits certain unsworn statements supposedly interjected by Faisal at some point during the course of the hearing, as alleged in his affidavit submitted to the Appeals Board, the Appellate Division ruled that those statements would not affect the validity of the determination under review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09431.htm

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim  

Idolor v Board of Coop. Educ. Servs. of Nassau County, 2015 NY Slip Op 09284, Appellate Division, Second Department

The Board of Cooperative Educational Services of Nassau County [BOCES] filed disciplinary charges against one of its employees, Lucky Idolor. The disciplinary hearing officer found that Idolor was guilty of misconduct and insubordination. BOCES adopted the findings of the hearing officer and dismissed Idolor from his position.

Idolor filed a CPLR Article 78 petition challenging BOCES’ action. BOCES, contending that Idolor petition was untimely because he had failed to comply with the notice of claim requirements set out in Education Law §3813(1), moved to have Idolor’s petition as untimely. Supreme Court granted BOCES’ motion and dismissed Idolor’s petition, whereupon Idolor appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court’s ruling, explaining that the filing of the §3813(1) notice of claim within three months after Idolor’s claim arose was a condition precedent to his bringing a timely Article 78 action, an action in which he petitioned the court for both [1] equitable relief and [2] for damages.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, [motion for leave to appeal denied, 62 NY2d 605], the Sephton court noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights.” However, the court said that the Sephton plaintiffs were seeking “to recover back pay due to the allegedly improper restructuring of their salaries,” and “[s]uch a claim seeks vindication of private rights" and a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of their action seeking to recover back pay. Again, in Mills v County of Monroe, 59 NY2d 307, the court ruled that where a plaintiff seeks private relief, damages, or reinstatement to his or her former position, in this instance for alleged unlawful employment discrimination in violation of the Executive Law, the filing of a timely notice of claim was a condition precedent to Mills' maintaining the lawsuit.

However, a timely appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law as the court ruled in Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602.

 

N.B. Another “statute of limitations” to be remembered: §3020-a.5.a of the Education Law, Appeal, provides as follows: “a. Not later than ten days after receipt of the hearing officer's [§3020-a ] decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.” Further, subdivision b of §3020-a.5 provides “b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09284.htm

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