Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

2017 NY Slip Op 01549,  Appellate Division, Second Department

A federal civil rights action was commenced in the United States District Court for the Eastern District of New York against, among others, a Nassau County police officer [Petitioner]. The claims in the federal action against Petitioner arose from an off-duty altercation caused by a traffic dispute, during which the Petitioner allegedly fired a gun at the plaintiff in the federal action. Petitioner sought to have his employer, Nassau County, defend and indemnify him in the federal action.

The Nassau County Police Officer Indemnification Board* concluded that Petitioner was not entitled to defense or indemnification by Nassau County because the alleged acts underlying the federal action were not committed "while [Petitioner was engaged] in the proper discharge of his duties and were not within the scope of his employment."

Supreme Court dismissed Petitioner's challenge of the Board's determination and he appealed its ruling.

Citing General Municipal Law §50-l, the Appellate Division said that question of whether a police officer's acts which formed the basis of the civil action were committed in the proper discharge of his or her duties and within the scope of his or her employment is to be determined in the first instance by the Board.

The Board's determination that Petitioner was not acting in the proper discharge of his duties and within the scope of his employment may be set aside by a court only if it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

The Appellate Division, sustaining Supreme Court's ruling, concluded that the record supported the Board's determination that Petitioner "was not acting while in the proper discharge of his duties or within the scope of his employment, since there is a factual basis for the conclusion that the alleged misconduct arose from an altercation that was personal in nature" and was not undertaken in the exercise of his "public responsibility as a police officer."

* General Municipal Law §50-l, in pertinent part, provides for "the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01549.htm

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

2017 NY Slip Op 04740, Appellate Division, Fourth Department

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

The Appellate Division ruled that Supreme Court had properly dismissed her petition as the record indicated that Petitioner had been given a "temporary appointment ... [to fill] a position that was encumbered by an employee on leave of absence."

Accordingly, there was nothing to support Petitioner's claim that she had been appointed to the higher grade position on a contingent permanent basis in the record.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, an employee, even if otherwise eligible for appointment as a contingent permanent employee pursuant to §64.4 of the Civil Service Law, must be specifically designated as being appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04740.htm

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