ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

January 08, 2016

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:
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January 07, 2016

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:

January 06, 2016

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:

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January 05, 2016

Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule


Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule
State of New York, ex rel. Murray v Baumslag, 2015 NY Slip Op 08942, Appellate Division, First Department

Supreme Court, New York County, denied John T. Murray motion for a subpoena requiring Mary Kennedy Baumslag to produce certain records. Murray appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and in the exercise of discretion and granted Murray’s motion.

In a complaint made to the director of the Office of Internal Audit and Management Services [Internal Audit] of nonparty City University of New York [CUNY], Murray alleged that Gilbert Baumslag, a former professor at CUNY, had used public education monies for improper purposes. Internal Audit had conducted an investigation concerning the matter, which resulted in a report with recommendations. A redacted version of the report was provided to Murray.

In an action brought on behalf of the State pursuant State Finance Law §187, New York’s False Claims Act,* to recover allegedly falsely procured and misspent funds, Murray was provided a redacted copy of a report made by Internal Audit. The redacted copy of the report provided Murray had omitted several recommendations and Murray asked for the production of the unredacted version of the report, as well as investigators' notes of their interviews with CUNY and CUNY professors, including Gilbert Baumslag, named in the report.

Murray contended that the redacted material was relevant because it identified the actions recommended by the report and taken by CUNY on the basis of the results of the investigation.**

CUNY claimed that the material sought was “work product” and thus privileged.

The Appellate Division was not persuaded by CCNY’s contention, explaining that CCNY’s “conclusory statement is insufficient to invoke the work-product privilege.” The court also noted that although the director of Internal Audit testified that he is an attorney, he was not an attorney for CUNY and the report which he wrote with a CUNY examiner, who is not an attorney, contains nothing that reflects "legal research, analysis, conclusions, legal theory or strategy."

The court then said that “[t]he investigators' notes are not protected by the work-product privilege since there is no evidence that the investigators conducted their interviews with Baumslag and other professors allegedly involved in the improper spending in anticipation of litigation.”

CUNY also argued that the material sought by Murray was, “in any event,” not relevant. The Appellate Division ruled that CCNY failed to establish that the discovery sought is "utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.”

* §188, Definitions, of Article 13 of the State Finance Law, New York’s False Claims Act essentially defines the term “claim” as any request or demand, for money or property that is presented to an officer, employee or agent of the state or a local government while the term “false claim” means “any claim which is, either in whole or part, false or fraudulent.”

** For example, Murray alleged that Baumslag had used public education monies for improper purposes and the Director of Internal Audit had testified that the recommendations may have included asking Baumslag for "reimbursement of expenses."

The decision is posted on the Internet at:

January 04, 2016

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve


The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing orfficer to resolve
Durudogan v City of New York, 2015 NY Slip Op 08947, Appellate Division, First Department

The New York City dismissed Agah Durudogan, a New York City police officer, from his position following a disciplinary hearing. This action also had the effect of denying him eligibility for vesting retirement benefits.*

Durudogan appealed and Supreme Court, New York County, granted City of New York’s motion to dismiss his Article 78 petition. The Appellate Division subsequently vacated the lower court’s ruling and treated the proceeding as if it had been transferred to it for a “de novoreview pursuant to CPLR 7804(g),” explaining that Durudogan petition had raised an issue of substantial evidence and should have been initially so transferred to it.

Reviewing the matter de novo, the Appellate Division found that substantial evidence supported the City’s determination that Durudogan was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

Durudogan's contention that "the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute" is unavailing said the court, finding that the hearing officer's determination was based on Durudogan's inconsistent statements in that his testimony at the hearing differed from the statements that he gave during an investigative interview. Accordingly, said the Appellate Division, the administrative decision was based on the hearing officer's credibility findings which are entitled to deference.

Further, the Appellate Division noted that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Dept. of Correction and Community Supervision, 110 AD3d 425.

Citing Kelly v Safir, 96 NY2d 32, the court then found that dismissing Durudogan from the New York City police force was "not shocking to one's sense of fairness” in view of the record which indicated that Durudogan was brought up on five separate charges, based on events that occurred over a three-year period, and he was found guilty of nine of the specifications charged following a hearing.

Considering the possibility of mitigating of the penalty imposed by the City, termination, the Appellate Division concluded that although Durudogan was a decorated officer, with eighteen years of service, who often received high ratings on department evaluations, he also was previously disciplined for insubordination and placed on one-year dismissal probation.

The Appellate Division also noted the ruling in Vecchio v Kelly, 94 AD3d 545, leave to appeal denied 20 NY3d 855, in its decision. 

In Vecchio the court had annulled the Commissioner’s decision to terminate Vecchio in view of the fact it had dismissed certain of the charges brought against him and the remanded the proceeding for the Commissioner's determination of a new penalty. That court further directed that if the Commissioner adhered to imposing the penalty of termination, Vecchio  "should be permitted to apply for vested interest retirement benefits so as to avoid a punishment disproportionate to the offense, namely the extreme financial hardship to his innocent family." The Appellate Division explained that “In Vecchio, unlike here, [that court] found circumstances that warranted restoring Vecchio to a status that made him eligible to apply for the deferred retirement allowance as provided by Administrative Code §13-256(a), (b).

Upon completing its de novoreview the Appellate Division unanimously confirmed the City’s action and dismissed Durudogan petition.

* As Durudogan had less than 20 years of serve at the time of his termination, he lost his entitlement to deferred vested retirement rights upon his dismissal from City's the police force. §13-256 of the Administrative Code of the City of New York explicitly excludes a police officer having less than 20 years of service at the time he or she is discontinued as the result of his or her dismissal, death or retirement from applying for a deferred retirement allowance unless he or she filed an application for a deferred retirement allowance at least 30 days prior to the date of his or her discontinuance from service.

The decision is posted on the Internet at:

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January 01, 2016

The Disability Benefits E-book, 2016 Edition

The Disability Benefits E-book, 2016 Edition.  

This 800+ page electronic handbook for administrators, union officials and attorneys focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. 

For additional information click on http://section207.blogspot.com/

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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