Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

New York State Div. of Human Rights v Milan Maintenance, Inc., 2017 NY Slip Op 05508, Appellate Division, First Department

The Appellate Division unanimously sustained the New York State Division of Human Rights' (DHR) determination holding that  Milan Maintenance, Inc., [Milan] had unlawfully discriminated against an individual that it rejected for employment and DHR's awarding the complainant $10,000 for mental anguish and humiliation.

Noting that Milan defaulted at the administrative hearing held by DHR,* thus failing to rebut a prima facie showing that it had unlawfully discriminated against the complainant, the court said that DHR's findings were supported by substantial evidence and DHR's "award of compensatory damages for mental anguish" was proper.

Mari v Safir, 291 AD2d 298, sets out the tests typically applied by New York courts in resolving litigation challenging the decision of an administrative agency arrived at as the result of having conducted an administrative hearing in absentia. 

* In Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division upheld an arbitrator's award in favor of the employee after Environmental Conservation boycotted the arbitration because if believed that the employee was not entitled to arbitrate the dispute.

The Milan decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05508.htm

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing
2017 NY Slip Op 05147, Appellate Division, Third Department

An employee [Employee] at a residential facility operated by the Office of People with Developmental Disabilities [OPWDD] was alleged to have physically abused a resident.

An investigator conducted interviews of several witnesses and found the report of physical abuse to be substantiated. After a hearing, Employee's request that report be amended to unsubstantiated and that the report be sealed was rejected and a final determination sustaining the report of physical abuse was made.

Employee then commenced a CPLR article 78 proceeding challenging the determination which was made following an administrative hearing as unsupported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division found that the final determination was supported by substantial evidence. Addressing Employee's contention that the hearsay statements in the record cannot constitute substantial evidence, the Appellate Division said that "it is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence."

Citing Matter of Today's Lounge of Oneonta, Inc. v New York State Liq. Auth., 103 AD3d 1082, the court commented that hearsay evidence may, "under appropriate circumstances, form the sole basis of an agency's determination, unless the hearsay evidence is seriously controverted."

In this instance, said the court, the corroborated description of the incident by the eyewitness was only controverted by Employee's denial.  Consequently, the corroborated description by the eyewitness could be viewed as not seriously controverted and "sufficiently reliable" so as to constitute substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05147.htm

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment  

2017 NY Slip Op 05151, Appellate Division, Third Department

In 2009 the petitioner [Petitioner] in this Article 78 action had completed an application for employment with a public employer [Employer A] that included the question, "Have you ever resigned from employment rather than face discharge?" Petitioner answered "no" and signed an affirmation that the statements in the application "[were] true under the penalties of perjury and that a material misstatement or fraud may disqualify [her] from appointment." Petitioner was subsequently appointed by Employer A.

In 2015, Employer A issued a notice of charges alleging several acts of misconduct and notifying Petitioner that it would seek her dismissal if she was found guilty after a hearing. After obtaining additional information, the notice of discipline was revised to add a charge that Petitioner had made a false statement in her application for employment.

A disciplinary hearing was conducted and the hearing officer found, among other things, that Petitioner had withheld relevant information regarding her previous employment with another public employer, Employer B. As a result of this additional information, Petitioner was sent a notice of revocation of eligible certification, appointment and termination of employment pursuant to Civil Service Law §50(4). Petitioner requested, and was provided with a due process hearing. Ultimately Petitioner's "eligible certification and appointment" was revoked and Petitioner was terminated from her position.

Petitioner then commenced a proceeding pursuant to CPLR Article 78 seeking a court order annulling Employer A's determination and reinstate to her former position. Supreme Court dismissed Petitioner's action and she appealed the court's determination.

The Appellate Division noted that evidence and hearing testimony resulting Employer A terminating Petitioner revealed that Employer B, her former employer, had issued six disciplinary charges against her in 2008, which carried a maximum penalty of dismissal. After being served with these disciplinary charges, Petitioner had filed various claims against Employer B and her union, including charges with the Public Employment Relations Board. In September 2008, the parties entered into a separation agreement, by which Petitioner agreed to resign from her employment and withdraw her claims and Employer B, among other things, agreed to withdraw the disciplinary charges* against her, to issue a letter of reference using agreed-upon language, and to pay Petitioner $100,000 in settlement of her claims. In addition, the parties agreed not to discuss "the terms of [the agreement] or any fact concerning its negotiation, execution or implementation with anyone," unless "required to do so by law or legal process."

Acknowledging that she had resigned her position with Employer B while the charges were still pending, and that the maximum penalty sought by Employer B was dismissal, Petitioner gave several reasons for her "no" answer to the application question, stating that:

1. She acted upon the advice of counsel;**

2. She believed that she could not discuss the agreement because of its confidentiality provisions, and;

3. She expected to prevail on the disciplinary charges and therefore believed that she was not facing discharge.

Pursuant to the Civil Service Law §50[4], the State Civil Service Commission, with respect employee of the State as the employer and a county civil service department with respect to employers within its jurisdiction, may investigate the background and qualifications of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, as pertinent here, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of . . . fraud of a substantial nature in his [or her] application, examination or appointment."

Here, said the Appellate Division, Employer A's Personnel Officer found that Petitioner had resigned her position with Employer B rather than face discharge, that this resignation would have warranted Petitioner's disqualification from eligibility and, in the alternative, that Petitioner's failure to disclose the circumstances of her resignation constituted, as relevant here, a fraud of a substantial nature in her application. The Personnel Officer further found that Petitioner's failure to disclose her resignation had prevented Employer A from inquiring into the circumstances and discovering information material to her qualifications and background, and that her failure to disclose her resignation amounted to fraud.

The court noted that Employer A appointed Petitioner almost six years before it brought charges against her. Thus, said the Appellate Division, "Supreme Court correctly determined that [Employer A] is time-barred by the three-year statutory limitations period from enforcing Civil Service Law §50 on grounds other than fraud, and the sole issue to be resolved here 'is whether fraud of a substantial nature existed in connection with petitioner's application.'"

In the words of the Appellate Division, [Employer A] has "[w]ide discretion" to determine the fitness of candidates for civil service eligibility and employment and, in the absence of clear abuse, this Court will sustain such a determination."

Further, said the court, "Our review is limited to whether [Employer A's] determination was an abuse of discretion or arbitrary and capricious." Considering the affirmation that the statements in Petitioner's application were true in light of her acknowledgment that she resigned while charges that could have resulted in her dismissal were pending against her, the Appellate Division did not find Employer A's inference that Petitioner acted intentionally to be arbitrary and capricious. As Petitioner's resignation was an express requirement of the agreement by which Employer B agreed to withdraw the charges, "it was not arbitrary and capricious for [Employer B] to discredit Petitioner's assertion that she resigned, not for the purpose of avoiding dismissal, but instead to obtain payment for settling her claims against [Employer B].

The Appellate Division also rejected Petitioner's assertions related to the provisions of the agreement that prohibited her from disclosing its terms and related facts, explaining that the language in the agreement did not preclude her from disclosing the fact that she had resigned pursuant to an agreement. As Supreme Court had noted, said the court, Petitioner could have completed the employment application truthfully while complying with the agreement's confidentiality requirements by answering the question about previous resignations "yes" and indicating in the application's explanatory section that she had resigned from her employment with [Employer B] pursuant to an agreement, but could not disclose its details.

Such an acknowledgment would have allowed Employer A an opportunity to inquire further into circumstances surrounding her resignation, "as it did promptly when it later learned of her resignation." The Appellate Division said it found nothing arbitrary and capricious and no abuse of discretion in Employer A's determination that Petitioner committed fraud of a substantial nature.

* 4 NYCRR 5.3(b), which applies to employees of the State as the employer, in pertinent part, provides that, Resignation, provides: that “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule.

** Petitioner, said the Appellate Division, clarified that she did not consult with counsel while completing the application, and that her understanding of the issue was based upon a conversation that she had previously had with her counsel when she entered into the separation agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05151.htm

______________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

2017 NY Slip Op 05145, Appellate Division, Third Department

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Probationer contending that the termination of his probationary period was made in bad faith as the appointing authority "waited to demote him to his former position until just after he completed the eighth week of his probationary period — the minimum probationary service period — to avoid having to establish under Civil Service Law §75 that the demotion was based on incompetence or misconduct," filed an Article 78 petition in Supreme Court seeking reinstatement to the higher grade position with back salary.

Supreme Court dismissed Probationer's petition and he appealed the court's ruling.

The Appellate Division affirmed the lower court's determination, explaining that "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not "in bad faith or for an improper or impermissible reason."*

To warrant a hearing after completing his or her minimum period of probation, the employee bears the burden of raising a material issue of fact as to whether the termination was made in bad faith or for an impermissible reason; allegations of a conclusory or speculative nature are insufficient to meet this burden.

Here, said the Appellate Division, Probationer's submissions were insufficient to raise a material issue of fact as to whether his discharge from the higher grade position was made in bad faith or based on an improper or impermissible motive.

The court noted that in answering Probationer's petition, the appointing authority submitted, among other things, the affidavit of the Personnel Director "which established that the decision to terminate [Probationer's] probationary promotion was made in good faith." The affidavit of the Personnel Director cited an investigative report in which it was concluded that the most credible version of certain events that occurred prior to Probationer's promotion "pointed to [Probationer] having observed and/or participated in threatening [a] particular inmate and then denying such observation or participation."

In addition, "as found by Supreme Court," the Appellate Division said that Probationer's allegations of bad faith "were too conclusory and speculative to warrant a hearing on the matter" as there was no evidentiary support that the Director waited to demote him to his former position until just after he completed the minimum probationary period.

* "Probationary employees" typically hold permanent appointment in the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05145.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

County of Monroe (Civil Serv. Employees Assn., Inc., Local 828, Unit 7423, 2017 NY Slip Op 04602, Appellate Division, 4th Department

Civil Service Employees Association, Inc., Local 828, Unit 7423 [7423] filed a grievance on behalf of certain retired former employees of the Monroe County Sheriff's Department, all of whom retired prior to January 1, 2000, when a collective bargaining agreement [CBA] that covered the period between 1994 through 1999 was in effect.

The grievance alleging that Monroe County had had violated the CBA by unilaterally changing the subject retirees' post-Medicare health insurance benefits.

Monroe County contended that any such alleged unilateral change was subject to resolution pursuant to the grievance and arbitration procedure set out in the 2009-2012 CBA. 7423, however, denied that the parties had agreed to resolve retiree health insurance benefit disputes for those retiring prior to January 1, 2000, by submitting it to the grievance and arbitration procedure set out in the 2009-2012 CBA.

When Monroe County demanded arbitration pursuant to the 2009-2012 CBA, 7423 commenced this proceeding, and the County cross-moved to compel arbitration. Supreme Court granted 7423's petition, permanently staying arbitration, and denied the County's cross motion to compel arbitration. Monroe County appealed but the Appellate Division sustained the Supreme Court's ruling.

Citing City of Buffalo v A.F.S.C.M.E. Council 35, Local 264, 107 AD2d 1049, the Appellate Division, agreeing with Supreme Court, concluded that the rights of the subject retirees are governed by the 1994-1999 CBA, which was in effect when they retired.

Then, in order to determine whether the grievance was arbitrable under the 1994-1999 CBA, the Appellate Division initiated "the requisite two-step inquiry." As to the first step of its inquiry - was there any statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said " it is undisputed that there is no prohibition against arbitration of the grievance."

The court then considered the "second step" of the inquiry -  "... whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Addressing this second element of the "two-step inquiry," the Appellate Division concluded that Supreme Court had properly determined that the parties did not agree to refer to arbitration retiree health benefit disputes raised by former employees who had retired prior to January 1, 2000.

The decision of the Appellate Division notes that that a "grievance clause in the 1994-1999 CBA" specifically excludes retirement benefits from the grievance and arbitration procedure. Accordingly, the court dismissed Monroe County's appeal, sustaining Supreme Court's order granting 7423's petition to stay arbitration and denying the County's cross-motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04602.htm

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Oliver v D'Amico, 2017 NY Slip Op 04596, Appellate Division, Fourth Department

A former New York State Trooper, Jean Oliver, commenced a CPLR Article 78 proceeding seeking to annul Commissioner of State Police's determination finding her guilty of certain disciplinary charges or, in the alternative, to vacate the penalty of dismissal imposed upon her. Oliver contended that the Superintendent's determination was not supported by substantial evidence and that the penalty of dismissal is "shocking to one's sense of fairness."

Citing Wilson v City of White Plains, 95 NY2d 783, the Appellate Division sustained the Superintendent's determination, explaining that "It is well established that, '[i]n CPLR Article 78 proceedings to review decisions of administrative tribunals, the standard of review for the Appellate Divisions ... is whether there was substantial evidence to support the Hearing Officer's decision.'" The court found that, contrary to Oliver's contention, the Superintendent's determination was supported by substantial evidence.

Although Oliver also argued that the hearing panel had improperly expanded the charge in Charge number one by expanding the scope of the alleged order from an order to refrain from working on certain cases she had been assigned while at CNET to an order to refrain from working on relatedcases or being involved in "any matters related to her previous work, the Appellate Division rejected her contention, noting that Charge number one was "reasonably specific, in light of all the relevant circumstances, to apprise [Oliver] . . . of the charges against [her] . . . and to allow for the preparation of an adequate defense." Further, said the court, the evidence at the hearing established that "[Oliver's] guilt was based only on violations that were charged."*

As to the penalty imposed, dismissal, the court, quoting from Kelly, 96 NY2d at 38,  concluded that the penalty of termination is not shocking to one's sense of fairness noting that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . [T]he Appellate Division is subject to the same constraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Of critical importance, said the Appellate Division, is the principal that "a State Trooper holds a position of great sensitivity and trust . . . and [a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." Thus, given the conduct underlying the offenses -- directly disobeying an order and making false statements in an Internal Affairs interview and on official police records, and Oliver's refusal to accept any responsibility for her conduct. Accordingly, the court concluded that it could not say that the penalty of dismissal shocks its sense of fairness.

Finally, the court said it recognized that the allegations against Oliver did not involve any harm to the public, any misconduct for her personal gain or official corruption. It also noted that charges herein "were filed following petitioner's initial complaints of discrimination and that the Equal Employment Opportunity Commission has since found that "there is reasonable cause to believe that [the New York State Police] has discriminated against [petitioner] on account of her gender and in retaliation for engaging in a protected activity."

However, said the Appellate Division, its review of the penalty is extremely limited and it does not have any "discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."

* Oliver also argued that the hearing panel failed to consider the retaliatory motive of the disciplinary charges in violation of Civil Service Law §75-b, the so-called "whistle blower statute." The Appellate Division said that she failed to raise that contention in her petition and thus that contention was "not properly" before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04596.htm

_____________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

_____________________

Recent Decisions by OATH Administrative Law Judges

Recent Decisions by OATH Administrative Law Judges

Source: NYC Office of Tribunals and Hearings

Dismissal of disciplinary charges recommended

OATH Index Nos. 1417/17 & 1418/17

OATH Administrative Law Judge Astrid B. Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route.

The ALJ found that the home was across the street from workers' assigned route and that they were scheduled to service it the next day. The workers collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste.

Judge Gloade found that the fact that the workers failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1417.pdf

Termination of hospital dietician recommended

OATH Index No. 282/17

OATH Administrative Law Judge Noel R. Garcia recommended termination of a hospital dietician for "misconduct and/or incompetence" after finding that the dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk.

Judge Garcia was not persuaded by the dietician's contention that he had a  "high volume of work," concluding that "To the extent [the dietician] attempted to justify any of [his acts, omissions or errors] by blaming an alleged high volume of work, such argument is without merit."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-282.pdf

 _________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

 _________________

Spoliation of evidence

Spoliation of evidence

Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, Appellate Division, Fourth Department

Kelly Burke commenced this action seeking damages for injuries that she sustained when she slipped and fell on stairs at a facility owned and operated by Queen of Heaven R.C. Elementary School [Defendant] and sought partial summary judgment as to liability against Defendant on the ground Defendant had destroyed and replaced the stairs after Burke had notified Defendants of her intent to have her expert inspect the stairs, contending that such destruction and replacement of the stairs in question constituted "spoliation of evidence".

With respect to "spoilage", the Appellate Division noted that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed." In contrast, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense."

In order to obtain sanctions for spoliation of evidence, the plaintiff had the burden of showing that [1] the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] the evidence was destroyed with a culpable state of mind, and [3] the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Defendant conceded that the original condition of the stairway was relevant.

Noting that Defendant had an obligation to preserve the condition of the stairs existed because litigation had begun at the time the stairs were replaced, the Appellate Division agreed with Burke that she met her burden of establishing that Defendant destroyed the stairs with a culpable state of mind.

As Supreme Court had "properly concluded" that Defendant's culpable state of mind was evidenced by its destruction of the stairs during the parties' ongoing debate about whether Burke had to disclose the name of her expert to Defendant before Defendant would agree to the inspection, the Appellate Division said it agreed with Burke that the  imposition of a sanction against Defendant for spoliation of evidence was warranted here.

As to granting Burke partial summary judgment on liability based on Defendant's destruction of the stairway, the Appellate Division, citing Sarach v M & T Bank Corp., 140 AD3d 1721, explained that  in deciding to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.

Observing that "It is well established that a less drastic sanction than dismissal of the responsible party's pleading may be imposed where [, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense ... the record does not demonstrate that [Burke] has been left 'prejudicially bereft' of the means of prosecuting her action." Accordingly, the Appellate Division ruled that "given that [Burke] has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action, "an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs."

In contrast, in some instances the destruction of records will not be deemed to be subject to sanctions for "spoilage."

In Matter of Klikocki (NY Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04593.htm