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

November 11, 2016

Village of Hoosick Falls - Health Risks of PFCs


Village of Hoosick Falls - Health Risks of PFCs
Source: NYSBA New York Environmental Lawyer, 36(2):88-111, Fall 2016.

The New York State Bar Association’s New York Environmental Lawyerhas published an article by Dr. Robert A. Michaels entitled Perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York:  health risks and successive approximation toward enforceable national regulation. 

Dr. Michaels notes that “PFCs, most notably PFOA and PFOS found in drinking water in the ppt [parts per trillion] range at which they are toxic, reveal the need for routine monitoring, aggressive cleanup, and promulgation of enforceable regulation to control human exposure, prevent disease, and help to clarify accountability, thereby preventing similar incidents elsewhere.

“In short, PFOA exhibits a ‘perfect storm’ of troubling properties: essentially infinite lifetime in the environment, resistance to human metabolism, bioconcentration in the food chain, transmissibility to infants via breastfeeding, years-long excretion half-time in the human body, and causation of human cancer and non-cancer effects.”

The article is posted on the Internet at:

November 10, 2016

Terminating a teacher during his or her probationary period


Terminating a teacher during his or her probationary period
Zarinfar v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 07269, Appellate Division, First Department

As the Court of Appeals held in Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, a probationary teacher is subject to remvcal from his or her position at any time for any reason, or for no reason, without a hearing. Further, a terminated probationary teacher challenging his or her termination has the burden of showing that the termination was in violation of law or for a discriminatory reason or purpose.

Majid Zarinfar, a probationary teacher, was terminated from his position with the New York City Board of Education. Zarinfar, alleging that had attained tenure by estoppel based on his service in the same subject area at a different school under a different license,* filed an Article 78 petition seeking a court order annulling the Board of Education’s decision to terminated his probationary employment and declaring that he had attained tenure by estoppel by reason of his service in another New York City school.

Supreme Court denied his petition, finding that Zarinfar was not entitled “tenure by estoppel” because:

1. Zarinfar’s probationary service under his technology license was found unsatisfactory and was terminated from that position; and

2. Zarinfar had commenced a new probationary period under his mathematics license after his service as a probationary teacher was terminated under his technology license.

The Appellate Division affirmed the lower court’s ruling, noting that “[as Zarinfar] never received tenure, he was subject to termination at any time for any reason without a [pretermination] hearing.”

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

With respect to positions in the Classified Service, where the probationary period is set terms of completing a minimum or a maximum period of probation, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual "is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position" 

N.B. Education Law §3031(a) addresses procedures to be followed when  tenure will  not be  granted to a teacher at conclusion of the  probationary period. The procedure requires that a probationary teacher receive notice of the recommendation that his or her services are to be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered and further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation. The teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting. In some instances a probationary teacher may be offered an "extension of employment as a probationary teacher" in lieu of termination.

* See Education Law §2573[1][a], which, in pertinent part, provides … in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a or section three thousand twenty-b of this chapter, the probationary period shall not exceed two years;

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_07269.htm
 

______________


The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html


______________
 

November 09, 2016

Suing an employee organization for an alleged breach of its duty of fair representation


Suing an employee organization for an alleged breach of its duty of fair representation
Morton v Mulgrew, 2016 NY Slip Op 07270, Appellate Division, First Department

Dianna Morton, et al. [Plaintiffs] alleged that the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, [Federation] breached the duty of fair representation to individuals in the collective bargaining unit who resigned from their positions after October 31, 2009 and prior to June 3, 2014 as a result of its negotiating and ratifying a collective bargaining agreement that provided for wage increases retroactive to the date the previous agreement expired, October 31, 2009 which including members who had retired, but not those who resigned, after October 31, 2009 and prior to June 3, June 3, 2014.

Supreme Court granted the Federation’s motion to dismiss Plaintiffs’ petition and the Plaintiffs appealed. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that Plaintiffs had noted “the obstacle” to their cause of action in view of the Court of Appeals’ decision in Martin v Curran, 303 NY 276,* but contended the so-called Martin rule was abrogated by the enactment of the Taylor Law in 1967** or by its 1990 amendment codifying the so-called Triboro Doctrine.

In Palladino v CNY Centro, Inc., 23 NY3d 140, explained the Appellate Division, the Court of Appeals noted “this Court held in Martinthat a voluntary unincorporated association ‘is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members’ [and] determined that ‘for better or worse, wisely or otherwise, the Legislature has limited … suits against association officers, whether for breaches of … agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven.’ Although there were policy considerations that might suggest a different result, the Martin Court was ‘under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.’” 

The Palladinocourt also noted that New York is said to be "in the company of a small minority of states that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue,” citing Mitchell H. Rubenstein, Union Immunity from Suit in New York, 2 NYU JL & Bus 641, 649 [summer 2006]. 

* Civil Service Law §200 et seq.

** Martin v Curran did not involve a union member suing his union but was a libel action in which the president of one union sued another union for libeling him in its newspaper.

The decision is posted on the Internet at:


November 08, 2016

Some factors that a public employer wishing to obtain the services of a retired public employee should consider


Some factors that a public employer wishing to obtain the services of a retired public employee should consider
Meehan v County of Suffolk, 2016 NY Slip Op 07163, Appellate Division, Second Department, [Roslyn I], consolidated with
Meehan v County of Suffolk, 2016 NY Slip Op 07164, Appellate Division, Second Department, [Roslyn II]

These two decisions address questions that resulted when an individual was engaged to perform certain services by a public entity following his of her retirement from that entity.

Roslyn I

Status of the individual – employee or independent contractor?

Roslyn Birnbaum, while driving a car owned by Harvey Birnbaum, was involved in an accident with a vehicle operated by Michelle Meehan in the course of performing certain duties on behalf of Suffolk County and Suffolk’s Child Protective Services [County]. Meehansued the County and the Birnbaums to recover damages, contending that the County was vicariously liable for Roslyn's negligence under the doctrine of “respondeat superior.*

Contending that Roslyn was an independent contractor rather than its employee,** Supreme Court dismissed Meehan’s complaint insofar as asserted against it and Meehan appealed.

In contrast to an entity being a respondeat superior, the Appellate Division said that the general rule with respect to “an independent contractor” performing services for an entity is that “an employer who hires an independent contractor is not liable for the independent contractor's negligent acts." The court then held that the County had demonstrated a prima facie entitlement to judgment as a matter of law by submitting evidence showing that Roslyn was an independent contractor.

Meehan had the burden of showing that Roslyn was an employee of the County rather than an independent contractor. The court said that Meehan failed to raise a triable issue of fact with respect to her claim that Roslyn was an employee of the County as the only evidence she offered “revealed only minimal or incidental control” over Roslyn by the County and this was insufficient to demonstrate that Roslyn was an employee of the County at the time of the accident.

Significantly, the Appellate Division said that “the fact that some of the duties Roslyn performed as an independent contractor were identical to those she had previously performed as the County employee prior to her retirement from its employ did not convert the relationship between the County and Roslyn into one of employer-employee.


Roslyn II

The Independent Contractor Agreement and insurance

After the accident had occurred, Roslyn and the County executed a "Consultant/Personal Services Contract" [Agreement] for the period January 1, 2010, through December 31, 2010 that included a provision requiring the County to provide insurance coverage for Roslyn.

After the County's motion for summary judgment dismissing the complaint insofar as asserted against it was granted, the Birnbaums commenced a third-party action against the County for a judgment declaring that the County had breached a contractual obligation to procure insurance on behalf of Roslyn. The County asserted that since the consultant agreement was executed after the accident, they were not obligated to provide liability coverage for Roslyn. Ultimately Supreme Court directed that State Farm Insurance Company [State Farm], with which the Birnbaums had automobile and umbrella insurance policies, be joined.

The Appellate Division said that the County, in support of motion, had submitted the consultant agreement. The court said that the insurance procurement provision at issue is incomplete and ambiguous and that “the consultant agreement itself is ambiguous because it contains inconsistent language throughout.”

The court then explained that:

1. “[W]here two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to do so and to give both effect";

2. “[T]he failure to execute the consultant agreement until after the accident does not constitute an "absolute bar" to Roslyn's third-party claims’ and  

Finding that the County’s submissions did not demonstrate, as a matter of law, that it did not breach the terms of the consultant agreement, the Appellate Division held that Supreme Court properly denied that branch of the County’s motion to dismiss the third-party complaint insofar as asserted by Roslyn.

Further, contrary to the Birnbaums' contentions, the Appellate Division ruled that Supreme Court did not err in directing the joinder of State Farm, as State Farm may be inequitably affected by a judgment on Roslyn's third-party claims against the County. In addition, the court noted that Supreme Court “providently exercised its discretion in directing the severance of Roslyn's third-party claims ‘to ensure that no mention of insurance coverage is made during the trial of the main action.’"

* The doctrine of respondeat superior provides that the employer or principal is legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of the employment or agency of the employee or agent.

** The decision is silent with respect to any consideration being given to Civil Service Law §150 and, or, Article 7 of the Retirement and Social Security Law, which address the suspension of pension and annuity of a retiree during public employment. 

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

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

November 07, 2016

Consultant’s breach of contract claim rejected as time barred and for failure to state a cause of action


Consultant’s breach of contract claim rejected as time barred and for failure to state a cause of action
Kyer v Ravena-Coeymans-Selkirk Cent. Sch. Dist., 2016 NY Slip Op 07254, Appellate Division, Third Department 

The Ravena-Coeymans-Selkirk Central School District [District] Board of Education approved a contract between the District and Lisa Kyer [Plaintiff] that provided that Plaintiff would research and review the District’s financial and student records to determine whether it could seek additional special education aid for the 2012-2013 and 2013-2014 school years.  By letter dated June 27, 2013, the District advised Plaintiff that it was "terminating the contract . . . effective June 30, 2013 because it determined that the information provided by Plaintiff was inaccurate and excessively overstated the true costs involved" and the District would not pay her for her services.

Plaintiff then submitted an invoice seeking payment in the amount of $29,635.04 for her services. The invoice was rejected by School Superintendent Alan McCartney, who advised Plaintiff that payment was declined “because the work had been performed by his staff and others.” By letter dated July 17, 2013, Plaintiff asserted that “for services rendered in connection with the 2012-2013 school year, the ‘total amount due’ was $65,677.05.”

On August 27, 2014, Plaintiff commenced filed her complaint in Supreme Court asserting breach of contract and account stated claims, together with two causes of action sounding in tort, stemming from the District’s nonpayment of her invoice submitted July 17, 2013. Supreme Court granted the District’s motion to dismiss, finding that Plaintiff's claims sounding in tort “failed to state a cause of action” and her breach of contract and account stated causes of action were time-barred. Plaintiff appealed the Supreme Court’s rulings, which rulings were affirmed by the Appellate Division.

With respect to Plaintiff’s claims “sounding in tort,” the Appellate Division said that Supreme Court properly dismissed these claims as "there is no cause of action for negligent performance of a contract."

Citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, the Appellate Division explained that "[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract."

With respect to Plaintiff’s breach of contract claim, the Appellate Division said Education Law §3813 (2-b) provides that, "no action . . . shall be commenced against [a school district] more than one year after the cause of action arose." The court then noted that a breach of contract cause of action accrues and begins to run when the Plaintiff possesses “a legal right to demand payment.”

In this instance, said the court, June 15, 2013 was the earliest date on which Plaintiff could have exercised her legal right to request full payment for her services in securing additional aid for the 2012-2013 school year and, thus, this was “the operative date” and she had until June 15, 2014 to file her complaint. However, Plaintiff’s breach of contract cause of action was filed on August 27, 2014 and thus it is time-barred.

Submitting invoices on later dates does not toll or extend the one-year statute of limitations as a cause of action for an account stated "accrues on the date of the last transaction in the account." Plaintiff posted a letter dated July 17, 2013, in which she stated that she was enclosing a revised invoice that reflected "the total amount due" for the additional aid she secured for the District's 2012-2013 school year. However, said the Appellate Division, her “revised invoice, dated July 16, 2013, sought payment from [the School District] in the amount of $65,677.05 for ‘Special Education Aid Claim,’ and this is the last transaction reflected in the invoice.”

The bottom line: As Plaintiff did not commence this action until August 27, 2014, the Appellate Division ruled that Supreme Court properly dismissed her “account stated cause of action” as time-barred.

The court then said that Plaintiff’s claim that her “cause of action began to run when she filed her notice of claim” was incorrect. In the words of the Appellate Division, “…. Education Law §3813(2-b) plainly states that ‘no action . . . shall be commenced against any [school district] more than one year after the cause of action arose,’ and there is no authority indicating that the statute of limitations begins to run when a Plaintiff files a notice of claim, especially here, where accrual of a claim for purposes of the notice of claim is ‘deemed to have occurred as of the date payment for the amount claimed was denied.’”

The decision is posted on the Internet at:

November 06, 2016

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.

November 05, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016



New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School District and BOCES Audits

Bellmore Union Free School District – Financial Condition
The audit is posted on the Internet at:

Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Educational Services – Separation Payments
The audit is posted on the Internet at:

Olean City School District – Financial Management
The audit is posted on the Internet at:

Port Washington Union Free School District – Claims Processing and Inventories

Rensselaer City School District – Financial Condition
The audit is posted on the Internet at:

Spencerport Central School District – Financial Condition
The audit is posted on the Internet at:


Other reports issued


Contractor
improperly retained $1,498,719 due NYSHIP for prescription drug rebate
A company that was supposed to collect rebates from drug manufacturers on behalf of the New York State Health Insurance Plan failed to turn over nearly $1.5 million in rebates to the state over a four-year period, according to an auditreleased by State Comptroller Thomas P. DiNapoli. 

Volunteer Fire Department’s former treasurer pleads guilty to charges related to his embezzlement from the Patterson, New York Fire Department  
Preet Bharara, the United States Attorney for the Southern District of New York, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation, Thomas P. DiNapoli, New York State Comptroller, and George Beach, Superintendent, New York State Police, announced that Albert Melin, the former treasurer of the Patterson Fire Department in Patterson, New York (PFD), pled guilty to wire fraud and false subscription to tax returns before Magistrate Judge Judith C. McCarthy in connection with his embezzlement of more than $1.1 million from the PFD.

Metropolitan Transit Authority failed collect penalty fees from a contractor who
mishandled customer service calls
State Comptroller Thomas P. DiNapoli released an auditrevealing the Metropolitan Transportation Authority did not collect almost $400,000 in penalty fees from Global Contact Services, a contractor who mishandled customer service calls and provided inaccurate travel planning information to customers who utilize the MTA’s Access-A-Ride program.
___________________

The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

November 04, 2016

Review of a district attorney’s handling of a criminal proceeding brought before a grand jury


Review of a district attorney’s handling of a criminal proceeding brought before a grand jury
Staten Is. Branch of the N.A. for the Advancement of Colored People v State of N.Y. Grievance Comm. for the Second, Eleventh and Thirteenth Jud. Dists., 2016 NY Slip Op 07124, Appellate Division, First Department

The Staten Island Branch of the N.A.A.C.P. [Staten Island] sought a court review and a disciplinary remedy, alleging that that former Richmond County District Attorney Daniel Donovan had a conflict of interest per se in his handling of a grand jury proceeding in an effort to obtain an indictment against a local police officer.

Supreme Court denied Staten Island’s Article 78 petition seeking an order annulling the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts’ [Committee] determination not to reopen an investigation into Staten Island’s disciplinary complaint and dismissing the proceeding.  Staten Island’s appeal of the Supreme Court’s ruling was unanimously denied by the Appellate Division.

The Appellate Division said the Supreme Court’s determination that it lacked jurisdiction over this Article 78 proceeding to challenge an Attorney Grievance Committee decision not to investigate the handling of the grand jury proceeding involving former Richmond County District Attorney Daniel Donovan “is supported by well-settled authority.” The court explained that “the only avenue for review has already been exhausted through the reconsideration process and an application to the Presiding Justice of the Appellate Division, Second Department.”*

The Appellate Division also observed two additional elements that barred Staten Islands Article 78 action: [1] a court review and a disciplinary remedy against a duly elected prosecutor who acted within the discretion of his office “fails under the doctrine of separation of powers” and [2] Staten Island’s contention that “a publicly-elected district attorney is possessed of a conflict of interest per se whenever seeking an indictment against a local police officer was not sufficiently particularized.”

* The Appellate Division noted that an Executive Order of the Governor, Cuomo EO 147, authorizes transferring prosecutorial authority to the Attorney General in future cases involving fatal actions by police officers, which order provides an additional remedy to hold prosecutors accountable for their discretionary conduct as does the electoral process.

The decision is posted on the Internet at:

November 03, 2016

Probationary employee has the burden of showing his or her termination was unlawful


Probationary employee has the burden of showing his or her termination was unlawful
Mendez v New York City Dept. of Educ., 2016 NY Slip Op 06947, Court of Appeals

Finding that Diane Mendezdid not establish that the termination of her probationary employment "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," the Court of Appeals sustained the New York City Board of Education’s decision to dismiss Mendez from her employment.

The Court of Appeal's decision is posted on the Internet at:

The Trial Court's decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/pdfs/2013/2013_34073.pdf


Viability of claims submitted after the legislative deadline for filing the claim


Viability of claims submitted after the legislative deadline for filing the claim
County of Chemung v. Shah, Court of Appeals, 2016 Slip Opinion 07043

In response to claims filed by municipalities that the State consider and pay claims submitted after the effective date of the legislative deadline for pre-2006 Medicaid reimbursement claims mandated by §61 of the 2012 amendment to the Medicaid Cap Statute, the Court of Appeals held that reimbursement claims filed after April 1, 2012.

Further, said the court, the State was not required to initiate an administrative review of its records to identify and pay for any pre-2006 claims submitted by a municipality.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_07043.htm

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.