Grand jury witness may claim absolute immunity regarding his or her perjurious testimony with respect to any §1983 claim based on such perjurious testimony

Grand jury witness may claim absolute immunity regarding his or her perjurious testimony with respect to any §1983 claim based on such perjurious testimony

Idrissa Adamou V Detective Edward J. Doyle [in

his individual capacity], USCA 2nd Circuit, No. 17‐255 [Summary Order]

The Second Circuit Court of Appeals reviewed this district court's denial of absolute or qualified immunity de novo claimed by the defendant, New York City police detective Edward J. Doyle.

The court, citing Giraldo v. Kessler, 694 F.3d 161, with respect to absolute immunity and Benzman v. Whitman, 523 F.3d 119, with respect to qualified immunity, held that under Rehberg v Paulk, 566 U.S. 356, a grand jury witness, including a law enforcement officer, “has absolute immunity from any §1983 claim based on the witness’ testimony,” even if that testimony is perjurious.

Accordingly, the Second Circuit ruled and Detective Doyle was "entitled to absolute immunity in this case because [the]  plaintiff’s claims are 'based on' Doyle's] allegedly false grand jury testimony, 'as that term is used in Rehberg' ...."

The Circuit Court reversed the district court's ruling to the contrary and remanded the matter to it "with instructions to grant Detective Doyle's motion to dismiss."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8d18bd4e-7199-4040-b76a-f7179ac1fc07/3/doc/17-255_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d18bd4e-7199-4040-b76a-f7179ac1fc07/3/hilite/

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates  

Fesler v Bratton, 2017 NY Slip Op 08881, Appellate Division, First Department

Retirement and Social Security Law §2[36][c] creates a rebuttable presumption that any condition or impairment of health resulting from a qualifying World Trade Center [WTC] event was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by the member's own willful negligence, "unless the contrary is proved by competent evidence."

Accordingly, first responders need not submit any evidence, credible or otherwise, of causation to obtain enhanced benefits if they have a qualifying condition but the burden is on the applicant to establish that "qualifying condition."

The Appellate Division agreed with Supreme Court's holding that in first responder Andrew Fesler failed to present sufficient credible evidence that his Crohn's disease was a qualifying condition or "new onset disease" within the meaning of §2[36][c].  The court noted that Fesler's personal physician had merely opined that it was "conceivable" that there was a link between Fesler's illness and exposure to toxins at the WTC site and that the articles he provided in support of his opinion were not relevant.

In view of this, the court concluded that respondent William J. Bratton, in his capacity as New York City Police Commissioner, was entitled to rely on the Medical Board's conclusion that the medical literature cited by Fesler did not provide evidence of such a causative link and the medical data showed that first responders did not have a higher incidence Crohn's disease.

Thus the burden of proof never shifted to NYC Police Department and Fesler was required to demonstrate a causative link between his illness and his alleged exposure to toxins at the World Trade Center site, which he failed to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08881.htm

Some information that give a teacher a reasonable assurance of continued employment for the purposes of Labor Law §590(10)

Some information that give a teacher a reasonable assurance of continued employment for the purposes of Labor Law §590(10)

Matter of Cieszkowska (Commissioner of Labor), 2017 NY Slip Op 08432, Appellate Division, Third Department

Labor Law §590(10) bars a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

The Unemployment Insurance Appeal Board ruled that wages paid to claimant, a per diem substitute teacher [Claimant], could not be used to establish a valid original claim for unemployment insurance benefits between two successive academic terms because Claimant had received a reasonable assurance of continued employment pursuant to Labor Law §590(10). Claimant  timely asked the Board to reopen and reconsider its decision. The Board denied Claimant's application to reopen the matter and reconsider its decision and Claimant appealed the Board's rejecting Claimant's request to reopen the matter.

Noting that "A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment," the Appellate Division explained that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

Claimant acknowledged that the employer contacted her by letter at the end of the school year and informed her that:

[1] there would be a need for per diem substitute teachers during the next school year;

[2] that it was expected that the economic terms and conditions for employment for the upcoming year would be the same as the previous year; and

[3] that it was anticipated that there would be as much work for per diem substitute teachers during the upcoming year as in the previous year.

In consideration of these representations, the Appellate Division found that substantial evidence supports the Board's conclusion that Claimant received a reasonable assurance of continued employment at the end of the school year.

In contrast, in Matter of Papapietro (Commissioner of Labor),* the Appellate Division reversed a decision by the Unemployment Insurance Appeal Board that held that a per diem teacher was ineligible to receive unemployment insurance benefits. 

In Papapietro  the court ruled that the school district had not sent any letter to the teacher, nor provided him with any other form of notice, that made a representation regarding his continued employment after a recess.

* NYPPL's summary of the Papapietro decision is posted on the Internet at https://nyppl-research.blogspot.com/2017/12/unless-employer-provides-educator-with.html,

The Cieszkowska decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08432.htm