Social Security Administration’s disability determination not binding on a public retirement system of this State.

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Fusco v Teachers' Retirement Sys. of the City of New York, 2016 NY Slip Op 00782, Appellate Division, First Department

Kimberly Fusco appealed the New York City Teachers’ Retirement System’s [System] denial of her application for accidental disability retirement benefits.., unanimously affirmed, without costs.

The Appellate Division sustained the System’s determination indicating that some creditable evidence supported its finding that:

1. Fusco was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work.

2. Fusco failed to show that any disability was the result of an accident as there a lack of evidence that her fall was caused by anything other than her own misstep while ascending the stairs to the school.

In addition, the court held that the Social Security Administration’s finding that Fusco was disabled, rendered after the System’s determination, “is not dispositive of the Medical Board's disability determination.” 

This is consistent with previous court decisions holding that an employer's Section 207-a or Section 207-c decisions are not binding on PFRS; PFRS' disability rulings are not binding on the employer's Section 207-a or Section 207-c rulings and that the Workers' Compensation Board's decisions are not binding on PFRS or vice versa. See, for example, Cook v City of Utica, 88 NY2d 833 and Bett v City of Lackawanna et al.,76 NY2d 900.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm

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The Disability Benefits E-book: - This 810 page e-book focuses on disability leaves and 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 more information click on: http://section207.blogspot.com/

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Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action

Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action  
2016 NY Slip Op 00881, Appellate Division, First Department

In this action brought against the City of New York for alleged violations of the federal Civil Rights Act, 42 USC §1983, the Appellate Division found that the “complaint failed to state a cause of action … as [the] plaintiff alleged only a single instance of wrongful conduct by a municipal employee without authority to make decisions regarding official policy.”

The Appellate Division noted that “The conclusory allegation of wrongful hiring and training, standing alone, cannot support a §1983 claim.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00881.htm

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Appeal of Martha Kavanaugh, Decisions of the Commissioner of Education, Decision No. 16,870

Martha Kavanaugh, a tenured teacher employed by the Hamburg Central School District, filed a petition asking the Commissioner of Education to rescind the Board of Education’s decision granting James Martinez tenure as an elementary school principal “pending an investigation by the State Education Department’s Office of School Personnel Review and Accountability and referral of the matter to law enforcement.”

Kavanaugh’s petition contained some 200 paragraphs setting out Martinez’s employment history in the district and alleged various acts of misconduct, harassment, intimidation, and impropriety by Martinezand others that Kavanaugh contended “raise questions as to his moral character.”

The Commissioner dismissed Kavanaugh’s appeal, noting two critical procedural difficulties barring consideration of her appeal.

First the Commissioner held that Kavanaugh lacked standing to challenge granting tenure to Martinez, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless he or she can show he or she is aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. In other words, “Only persons who are directly affected by the action being appealed have standing to bring an appeal.”

Rather than setting out any facts or evidence that her civil, personal or property rights were, or are, directly adversely affected by the School Board’s granting tenure to Martinez, the Commissioner said Kavanaugh's petition “expresses concern that others may be harmed by Martinez’s continued employment.”

In addition, the Commissioner found that Kavanaugh failed to name to a necessary partly, Martinez, as a respondent in her appeal.

It is well settled that “a party whose rights would be adversely affected by a determination of an appeal to the Commissioner in favor of a petitioner is a necessary party and must be joined as such.” Here, were Kavanaugh to prevail in the appeal, clearly Martinez’s rights could be adversely affected.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16870

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Reszka v Collins, 2016 NY Slip Op 00807, Appellate Division, Fourth Department

Elizabeth Reszka initiated a lawsuit in which she sought a court order removing Councilman Joseph A. Collins from his position as a council member of the Town Board of the Town of Hamburg. While the matter was pending in the Appellate Division, Collins filed an amended answer in the original action and asserted two counterclaims. When the Appellate Division dismissed Reszka’s petition in the original proceeding, she asked Supreme Court to dismiss Collins' two counterclaims.

Collins' first counterclaim alleged Reszka held a press conference regarding the lawsuit, and further alleged that Reszka "made slanderous and defamatory and libelous statements intentionally, willfully and maliciously" attacking him in his individual and professional capacity. Collins’ second counterclaim alleged malicious prosecution and abuse of process. Supreme Court dismissed Reszka’s motion to have both counterclaims dismissed.

In response to Reszka’s appeal challenging Supreme Court’s denial of her motion to dismiss both counter claims, the Appellate Division, noting that although Civil Rights Law §74* provides that “statements made in the course of judicial proceedings are protected by absolute privilege provided that they are material and pertinent to the issue to be resolved in the proceeding, explained that a party cannot maliciously commence a judicial proceeding alleging false and defamatory charges and then circulate a press release based on the same charges and escape liability by invoking §74 of the Civil Rights Law.

The Appellate Division ruled that Collins’ first counterclaim “adequately states that [Reszka’s] action was without any basis in fact and was commenced solely to defame [Collins] as well as also alleging that Reszka acted with actual malice, a required element for a defamation claim brought by a public official. Under the circumstances the Appellate Division concluded that Supreme Court properly refused to dismiss Collins' first counterclaim.

As to Collins' second counterclaim alleging malicious prosecution, the Appellate Division said that where the underlying action is civil in nature, “the party alleging a claim for malicious prosecution must allege a special injury.” Finding that Collins "fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property," the Appellate Division held that Supreme Court should have granted Reszka’s motion to dismiss Collins’ second counterclaim. The court observed that instead of alleging “a special injury,” Collins alleged damages amounting to "the physical, psychological or financial demands of defending a lawsuit," which claims are insufficient to constitute “a special injury for a claim of malicious prosecution.”

The court also ruled that to the extent Collins’ second counterclaim alleged abuse of process and not malicious prosecution, it must still be dismissed as well. "Insofar as the only process issued [here] was a summons necessary to initiate Reszka’s lawsuit."

Accordingly, said the court, “there was no unlawful interference with [Collins’] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Although Collins claimed that Reszka acted maliciously in bringing the action, the Appellate Division said that "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process."

* §74 of the Civil Rights Law, privileges in action for libel, provides “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00807.htm

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00977, Appellate Division, Second Department [Appeal I]

City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00970, Appellate Division, Second Department [Appeal II]

The Appellate Division handed down two decisions involving the same parties on the same day. 2016 NY Slip Op 00977 [Appeal I] considered the merits of a disciplinary determination while 2016 NY Slip Op 00970 [Appeal II] considered the merits of a disciplinary determination that resulted in the filing of an appeal concerning the issues decided in Appeal I.

Appeal I

In this proceeding pursuant to CPLR Article 78 Jay Gusler challenged his demotion from the position of lieutenant to the position of firefighter. Supreme Court granted the City of Long Beach’s motion to dismiss the proceeding and, in effect, denied Gusler’s petition and dismissed the proceeding. Gusler appealed the Supreme Court’s ruling.

According to the Appellate Division’s decision, Jay Gusler was a lieutenant in the City of Long Beach Fire Department [Department] and multiple disciplinary and grievance proceedings relating to his employment had been brought or then were pending. 

In a "Settlement Agreement" executed by Long Beach Professional Firefighters Assn., Local 287 [Local 287] and the City of Long Beach  it was agreed that Robert L. Douglas would be appointed to preside over a hearing on the charges pending against Gusler. The settlement agreement also provided that Douglas would have "sole and exclusive authority" to determine the timeliness of the charges, Gusler's guilt or innocence, and the appropriate penalty, if any, to be imposed on Gusler if he were found guilty of one or more of the charges pending against him. 

The parties subsequently agreed that the hearing would be bifurcated. First, Douglas was to determine guilt or innocence. Then, if necessary, he would hold a hearing as to the penalty. The City Manager then would be required to "implement" Douglas's determination as to penalty, if any, without amendment or modification.

Douglas issued an opinion and award finding Gusler guilty of certain charges. He then held a second hearing as to the penalty to be imposed and ultimately determined that the penalty to be imposed was Gusler's demotion from the position of lieutenant to the position of firefighter.

Gusler and Local 287 then initiated a CPLR Article 78 against the City, the City Manager, and the City Council seeking, among other things, to nullify Gusler's demotion, contending that Douglas was without authority to determine that the penalty would be demotion, because that penalty is not provided for under §11-54 of the City Code of the City of Long Beach. In addition Gusler and Local 287 argued that as Douglaswas without authority to issue the penalty of demotion, its implementation — as was required under the settlement agreement — was "arbitrary and capricious, without rational basis, without basis in law, . . . an abuse of discretion, and . . . in excess of [the respondents'] jurisdiction." Long Beach moved to dismiss the proceeding, and, again, the Supreme Court granted the motion and, in effect, denied Gusler and Local 287’s petition and dismissed the proceeding.

The Appellate Division, agreeing that the City Code did not provide for “demotion” as a penalty, explained that “nothing in the City Code precluded the City and the Association from negotiating a collective bargaining agreement that permits imposition of that penalty,” citing Civil Service Law §76[4]. Further, the court pointed out that in the controlling collective bargaining agreement, “the City and the Association expressly authorized the penalty of demotion in cases of certain specified misconduct.”

The Appellate Division found that Douglashad acted within his authority under the settlement agreement to determine the penalty and selected a penalty expressly authorized by the parties themselves. Additionally, said the court, “in abiding by the terms of the settlement agreement, which required the City to impose the penalty determined by Douglas, the imposition of the penalty was not arbitrary or capricious, and the respondents did not abuse their discretion, act without basis in law, irrationally, or in excess of their jurisdiction.”

Appeal II

Referring to the facts stated in its decision in Appeal I, the Appellate Division said that the "Settlement Agreement" between the parties in this matter provided that the parties could challenge or appeal the determinations of the hearing officer, Robert L. Douglas, "through any appropriate means of legal recourse, whether under the collective bargaining agreement [CBA] and/or applicable law."

The relevant CBA provided that the Association had the right to "submit the determination . . . to final and binding arbitration in accordance with the Rules of the New York State Public Employment Relations Board (PERB) for Voluntary Arbitration (Grievance Arbitration), within Fifteen (15) days of the determination, where upon the arbitrator “shall review the record of the hearing and . . . decide if substantial evidence supports the determination and penalty." The CBA further provided that "[t]he arbitrator shall have no authority to consider any matter which was not presented in the course of the discipline and shall be the ultimate authority there from."

On December 14, 2012, Douglasissued his "Opinion and Award" determining that the penalty was to be demotion of Gusler from lieutenant to firefighter. The Association did not serve the City with a demand for arbitration before PERB until 32 days later, on January 15, 2013. The City did not dispute Local 287’s the demand was filed with PERB the same day it was served but, rather, intiated an CPLR Article 75 action to permanently stay the arbitration on the ground that the Association's demand was untimely.

Supreme Court granted the City's petition to permanently stay arbitration, explaining that, in light of the narrowly drawn arbitration provision in the CBA, the timeliness of the Association's demand for arbitration was for the court, not the arbitrator, to decide. The court then found that “under the clear terms of the CBA's arbitration provision,” the demand for arbitration before PERB was not timely. Local 287 appealed the Supreme Court’s ruling.

The Appellate Division said that “Whether the issue of the timeliness of an arbitration demand is to be determined by the court or by the arbitrator depends on the nature and scope of the agreement to arbitrate.” Here the court, agreeing with Supreme Court, found  that the arbitration clause in the CBA “is so narrowly drawn as to clearly withhold the issue of timeliness from the arbitrator.” In addition the Appellate Division pointed out that the CBA provided that “the arbitrator was to decide only whether the hearing officer's ‘determination and penalty’ were supported by ‘substantial evidence’ and not any matter ‘not presented in the course of the discipline’."*

The Appellate Division also sustained Supreme Court’s ruling, on the merits, that the Association's demand for arbitration before PERB was not timely, regardless of whether timeliness was to be measured by service or filing of the demand as the CBA required that the determination be "submit[ted]" in accordance with PERB's rules within 15 days after the determination and the demand for arbitration before PERB was neither served nor filed before January 15, 2013 and both “service and the filing of that demand were indisputably untimely.”

One final argument presented by Local 287 was that its prior demand for arbitration, before a forum other than PERB, could be regarded as complying with the CBA's 15-day limitation on the theory that its seeking arbitration before a different forum was merely a “ministerial error.” However, the decision notes that Local 287’s arguments to the court make clear that the Local’s prior demand was not a ministerial error, “but a considered decision to invoke the jurisdiction of the other forum.” In the words of the Appellate Division, “the issue of the propriety of [invoking the jurisdiction of another forum] which was litigated in another proceeding … is not before us.”

* The issue of the timeliness of the demand did not involve an interpretation of PERB's rules as to whether its jurisdiction is invoked by service or by filing as the demand was served and filed the same day. The issue involved an interpretation of the provisions of the CBA as to whether arbitration was available.

The decision in Appeal I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00977.htm

The decision in Appeal II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00970.htm

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