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

June 20, 2017

Determining if an individual is an employee of an employer



Determining if an individual is an employee of an employer
Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;
2. The payment of salary or wages by the entity;
3. The power of dismissal of the individual by the entity; and
4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

June 19, 2017

Claiming the affirmative defense of "privilege"


Claiming the affirmative defense of "privilege"
Casey v State of New York,  2017 NY Slip Op 01922, Appellate Division, Third Department

Office of Court Administration's [OCA] sole contention is that the Court of Claims court should have found that its "detention" of Colleen Casey, a senior court officer, was privileged* on the ground that a designated superior's authority to command Casey through lawful orders carried with it a privilege to keep Casey under the supervisor's supervision and to control her movements when Casey did not immediately comply with the lawful order to surrender her personal firearms.

The Appellate Division, observing that OCA bore the burden of proof to establish any claim of an affirmative defense of privilege, said that "There is nothing in this testimony that supports [OCA's] current claim that [Casey] was so noncompliant that it was reasonably necessary to confine her or restrict her movements to ensure her compliance, or so distraught that close supervision was required to ensure her safety and that of others until the firearms [sought] were secured."

OCA, relying upon Casey's testimony in her Court of Claims action to support its claim of privilege, argued that the testimony that Casey she was upset and uncooperative establishes that it was reasonable under the circumstances for the supervisor and the other officers to confine her and restrict her movements. However, said the Appellate Division, as it "previously noted, it was [OCA's] burden, not [Casey's], to prove the claim of privilege."

Having made no claim at trial that the officers' actions were based in any way upon Casey's alleged insubordination or required by any threat to public safety, and having instead presented contradictory evidence to the effect that Casey consented to almost everything she was directed to do, "[OCA] cannot now meet its burden by relying on the same testimony that it sought to discredit at trial."

Addressing OCA's contention that the supervisor "was privileged to confine [Casey] restrict her movements," under the governing rules and procedures to ensure Casey's compliance with lawful orders, the Appellate Division observed that "the rules that require court officers to comply with their supervisors' lawful orders and to turn over their firearms when directed to do so are solely directed at the subordinate officer's obligations, and do not directly address the extent of a supervisor's authority to compel compliance."

Further, said the court, "Nothing in any of the provisions relied upon by [OCA] expressly authorizes a supervisor to use confinement or force to compel a subordinate to comply with an order" nor do the rules that require an officer to comply promptly with lawful orders unequivocally forbid all resistance to every order. Rather the rules provide that the officer "shall not obey any order which is inconsistent with the law," must request clarification or confer with a supervisor when in doubt as to whether an order is lawful, and must obey an order that he or she believes to be unlawful only if the supervisor fails to modify the order after being respectfully informed of the subordinate's belief that it is unlawful.

Accordingly, the Appellate Division said that it agreed with the Court of Claims conclusion that OCA did not meet its burden to that the conduct of the officers in confining Casey and restricting her movements was "reasonable under the circumstances and in time and manner," and therefore OCA failed to prove that its supervisor's conduct was privileged.

The decision is posted on the Internet at:



* A particular benefit, advantage, or immunity available to a particular entity, person or class of persons.

June 17, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017

Click on text highlighted in color  to access the full report


Audits of State Departments and Agencies

The AIDS Institute has taken several steps to update its procedures to address problems with contractor cost claims that were identified prior to this audit. However, the institute needs to further improve its internal controls to provide effective oversight and monitoring, and ensure that claimed contractor expenses are program appropriate and consistent with contract requirements.

DOH is generally meeting its obligations for conducting background checks on unlicensed employees of nursing homes, adult care facilities (ACF), and home health care (HHC) providers, according to state requirements. However, auditors identified 24 criminal history record check applicants whose determination letters were not completed on time. As a result, the individuals could have been allowed to work for periods ranging from 2 months to as long as 28 months. Of these, auditors found only eight applicants (who were ultimately denied eligibility) actually worked on a provisional basis, for periods between 3 and 14 months while their background checks were pending.

The 80/20 program provides low-interest financing to multifamily rental developers who commit to designating at least 20 percent of a development's units to low-income households. Based on the rents charged and the regulatory agreements for our four sampled developments, auditors concluded that the proper numbers of affordable apartment units were made available to low-income tenants. However, auditors found higher earners with apartments and several areas that could use improvement.

An initial audit report issued in December 2015, identified $710,284 in rebate revenues from agreements with 114 drug manufacturers that were not credited to the state Department of Civil Service from Jan. 1, 2011 through Dec. 31, 2013. In a follow-up report, auditors found UHC officials made progress in addressing the issues identified in the initial audit. This included the remittance of $338,649 in drug rebate revenue to Civil Service. In addition, UHC officials agreed to remit another $67,386 in rebate revenues.

An initial audit report issued in November 2016, found that UHC did not remit $1,498,719 in drug rebate revenue to the Department of Civil Service as it was required to do during from Jan, 1, 2010 through Dec. 31, 2013. In a follow-up, auditors found UHC officials had remitted the rebate revenue to Civil Service.

Based on testing, auditors found the Port Authority complied with the terms related to base rent payments to the city. However, the Port Authority had not fully complied with the terms of the ancillary agreements, which included an obligation to provide information and support to the Airport Board.

For the fiscal year ended June 30, 2014, Elmcrest claimed $54,250 in ineligible costs for the rate-based preschool special education program that it operated. The ineligible costs included: $18,264 in personal service costs, including bonuses and employee fringe benefits; $16,578 in overstated expenses; $12,911 in improperly allocated costs; and $6,497 in other than personal service costs, including undocumented vehicle costs, ineligible consulting services costs and non-reimbursable auditing fees. Elmcrest did not disclose related-party transactions with two vendors as required.

An initial audit report issued in October 2015 found that for the period from January 1, 2015 to December 31, 2016, the courts ordered the installation of 1,084 Ignition Interlock Devices (IIDs) for offenders under the Probation Department's supervision. Auditors found only a small percentage of the IIDs were installed in the cars of persons cited for alcohol-related motor vehicle violations and that probation officers often did not provide sufficient oversight of DWI offenders. Auditors also found that referral of probation violators were not made to the appropriate courts and district attorneys as required. In a follow-up, auditors found that probation officials made considerable progress in correcting the problems that were identified. However, additional improvements are still needed.

Variety, a not-for-profit organization located in Syosset, is a provider of special education services. Variety offers a range of special education services and programs to children with disabilities from birth to eight years of age. For the fiscal year ended June 30, 2014, auditors identified $6,719 in other-than-personal-service costs that did not comply with the requirements for state reimbursement.

During 2016, the tax department processed almost 7.6 million refunds totaling over $9.6 billion. After the tax department processes refunds, DiNapoli's office is charged with serving as a second set of eyes to ensure that only proper refunds are paid. Auditors returned 12,335 refunds totaling almost $43.9 million to the department that it had approved for payments. DiNapoli's auditors found red flags and other questionable information that led them to determine that the refunds were fraudulent or inappropriate.

Auditors identified $1,224,077 in inappropriate claims. They also identified two high-dollar outlier claims that resulted in $2,633,204 in total savings. For these claims in particular, board staff members entered incorrect data in fields used to calculate the payment amount resulting in artificially higher amounts to be paid. Auditors also reviewed claims processed by the board on a post payment basis to identify potential duplicate payments. For calendar year 2016, they identified 210 potential duplicate payments totaling $344,000.


Municipal Audits

The board needs to improve its policies and procedures over credit card use and travel related expenditures to ensure that all such expenditures are adequately supported and for necessary district purposes. Credit card charges totaling $32,860 were either not adequately supported or did not comply with the district's purchasing policy. In addition, credit card charges for conferences totaling $6,185 were not supported by proof of attendance and district officials paid travel credit card charges for meals for individuals who were not authorized by the board to travel.

A total of $5,681 in documented collections received during the audit period had not been deposited into a court bank account. The justices did not provide adequate oversight of the clerks responsible for receiving, recording and reporting cash receipts, and did not compare manual cash receipt records to the bank deposits. Accurate and complete bail records were not maintained and bank reconciliations and accountability analyses were not performed. The justices did not establish policies and procedures for enforcing unresolved traffic tickets.

The board has not established an internal control environment that fosters compliance and transparency due to its lack of policies, guidelines and monitoring. For example, claims to be paid were not presented on an abstract, and board minutes did not indicate that the board authorized, via resolution, the payment of claims audited and reviewed. In addition, the district has not submitted its statutorily required financial statements to the Office of the State Comptroller.

The village accumulated significant fund balances without clear plans to use this money. Over the last three years, the general fund balance increased by 42 percent to $338,000, or 159 percent of actual expenditures, and the water fund balance increased by 58 percent to $238,700, or 240 percent of actual expenditures.

For access to state and local government spending, public authority financial data and information on 130,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.

June 16, 2017

The Plausibility Standard


The Plausibility Standard
Irrera v Humpherys, USCA, Second Circuit, Docket #16-2004

The Plausibility Standard was addressed the United States Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, and essentially attempts to establish the "bright line" between speculative allegations and those of sufficient plausibility to survive a motion to dismiss the action. In Irrera the Second Circuit explained that "... Iqbal instructs [that] courts are to determine whether a complaint contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Dr. Joseph Irrera [Plaintiff] filed Title VII against Dr. Douglas Humpherys and the University of Rochester [Defendants] alleging that he had suffered unlawful retaliation as a result of his filing a complaint of sexual harassment. The district court granted Defendants' motion to dismiss.

The Second Circuit applied the Plausibility Standard to Plaintiff's retaliation claim and held that it was plausible that he was denied a teaching position after he declined sexual approaches from the man who was his teacher and the department chair.

Accordingly, the Second Circuit Court of Appeals vacated in the District Court's ruling part and remanded the matter for its further consideration of Plaintiff's retaliation claims.

The decision is posted on the Internet at:

Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes


Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes
Lawrence Teachers' Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, Appellate Division, Third Department

The Lawrence Union Free School District [District)] implemented a universal prekindergarten program pursuant to Education Law §3602-e. Initially program tasks were performed by employees working in a collective bargaining unit exclusively represented by the Lawrence Teachers' Association's [Association] but in 2012 the District unilaterally contracted with an outside eligible agency to staff and operate the program. The Association filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the District had violated Civil Service Law §§204[2] and 209-a[1][d] of the Public Employees' Fair Employment Act, commonly referred to as the "Taylor Law," by outsourcing the work without first negotiating the matter in good faith with the Association.

A PERB Administrative Law Judge [ALJ] concluded that the provisions of Education Law §3602-e vitiated the District's duty to negotiate in good faith and dismissed the charge. PERB affirmed the ALJ's ruling and the Association initiated a CPLR Article 78 proceeding challenging PERB's decision. Supreme Court annulled PERB's determination and remitted for further proceedings, holding that nothing in Education Law §3602-e "defeat[ed] the District's bargaining obligations . . . under the Taylor Law." The District appealed.

Although the outsourcing of work performed exclusively by represented employees is a mandatory subject of bargaining under the Taylor Law, rendering a failure to bargain an improper employer practice under Civil Service Law §209-a(1)(d), PERB had concluded that the outsourcing in this instance was not a mandatory subject of bargaining in view of the provisions set out in Education Law §3602-e(5)(d). That provision authorizes a school district "to enter any contractual or other arrangements necessary to implement" a prekindergarten program plan "[n]otwithstanding any other provision of law."*

The Appellate Division said that its review of the statutory landscape "nevertheless leads us to agree with PERB's interpretation." The court explained that the main goal in statutory construction is to discern the will of the Legislature and, in this instance, the statute provides for a universal prekindergarten program "designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies." Thus, said the court, a school district is free to avoid collaborative efforts in crafting a prekindergarten program plan as regardless of the precise plan devised, a school district is empowered to "enter any contractual or other arrangements necessary to implement" it "[n]otwithstanding any other provision of law."

Significantly, the Appellate Division noted that §3602(5)(d) grants a school district the power to make necessary arrangements "[n]otwithstanding any other provision of law," which, said the court, is the "verbal formulation frequently employed for legislative directives intended to preempt any other potentially conflicting statute, wherever found in the [s]tate's laws."

The court held that the addition of that language "signals the intent of the Legislature to override any statutory conflicts to the exercise of the school district's contracting power, including the Taylor Law bar to outsourcing work absent bargaining beforehand."

The Appellate Division opined that "[t]here is no absolute bar to collective bargaining over" the outsourcing of prekindergarten work to an outside agency and an agreement reached after collective bargaining on the subject is enforceable. However, the court observed that the clear language of Education Law §3602-e compels the conclusion that negotiation is not required to begin with and thus PERB was correct when it determined that the absence of negotiation in this instance did not constitute an improper practice under the Taylor Law.

In contrast, the Appellate Division noted that PERB's decision with respect to the Association's allegations concerning an improper practice within the meaning of the Taylor Law does not preclude Association from demanding "impact negotiations" concerning the program in the future.

* The Appellate Division's decision noted that "[a]s PERB itself recognizes, the interplay between the Taylor Law and Education Law §3602-e presents a question of pure 'statutory construction [that] is a function for the courts[, and PERB] is accorded no special deference in [its] interpretation of statutes'."

The decision is posted on the Internet at:

June 15, 2017

Claim for back pay upon reinstatement rejected



Claim for back pay upon reinstatement rejected
Koppman v. Board of Education, 95 A.D.2d 777

In Koppman the Appellate Division held that a former probationary employee had no claim in law for the payment of back salary upon reinstatement to service.

The employee had not been removed unlawfully, said the Court, and therefore “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, §1, of the State Constitution).

Police officer dismissed for reckless handling of a firearm



Police officer dismissed for reckless handling of a firearm
Rider v. Board of Trustees, Village of Rockville Center, 78 A.D.2d 856

The Appellate Division upheld the dismissal of a police officer charged and found guilty of reckless handling of firearms. However, the Court found that the police officer was entitled to back pay for the period of his enforced absence prior to the determination of guilt in excess of the 30 days without pay authorized by §75 of the Civil Service Law.
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Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"


Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"
Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss


Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss
England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

June 14, 2017

Educational malpractice


Educational malpractice
Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm the Supreme Court held that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.

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