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January 26, 2018

The tolling of the statute of limitations when litigating a federal civil rights claim

The tolling of the statute of limitations when litigating a federal civil rights claim
Artis v District of Columbia, USSC, Docket 16-460

28 USC Section 1367(d) provides that the “period of limitations for” to refile a cause of action for a claim in State court  “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Stephanie C. Artis filed lawsuit in federal court against the District of Columbia alleging a federal employment discrimination claim. Artis also filed three related claims under D.C. law.

At the time Artis filed the related claims nearly two years remained on the statute of limitations for timely filing of the D.C. law claims.

More than two years later the federal district court rejected Artis' federal claim and dismissed her D.C.-law claims. Artis then filed her D.C. law claims in the D.C. Superior Court 59 days later. Superior Court dismissed those actions as time-barred and the D.C. Court of Appeals affirmed.

Supreme Court reversed, rejecting the District of Columbia's argument that 28 USC Section 1367(d) merely provided a grace period and the statute of limitations continued to run while the claim was pending in another forum.

The Supreme Court disagreed, explaining that the plain meaning of the statutory language, 28 USC Section 1367(d) indicated that the provision was a tolling provision, suspending the running of the statute of limitations both while the claim is pending in federal court and for 30 days after a dismissal of the federal action.

The decision is posted on the Internet at:

January 25, 2018

Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office



Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office
Szymanski v Albanna, 2018 NY Slip Op 00378, Appellate Division, Fourth Department

In 2006, Mohamed Albanna, the defendant in this action, pleaded guilty to the federal crime of operating an unlicensed money transmitting business in violation of 18 USC §1960. He was sentenced to five years in prison and three years of probation.

In his plea agreement, Albanna acknowledged that had operated an illegal money transmitting business that transmitted more than $3.5 million to Yemen over a 13½-month period, in the course of which he [1] transmitted money to Yemen from individuals who did not fully and accurately identify themselves; [2] failed to inquire about the source of the money or why it was being sent; and [3] "made false entries in a money transfer ledger to hide the identities of certain senders and recipients." Albanna also acknowledged that he failed to file required currency transaction reports for cash transactions in excess of $10,000 and that he "knew that his business did not have the required license to transmit money."

In 2017, Albanna ran for election to the office of Councilman, for the 1st Ward of the of Lackawanna and received a majority of votes. Geoffrey M. Szymanski and the City of Lackawanna, as the Plaintiffs in this action, asked Supreme Court to declare that Albanna was ineligible to assume the City office of Councilman, 1st Ward.

Plaintiffs argued that §14.9 of the City Charter provides that "[a] person convicted of a crime or offense involving moral turpitude shall be ineligible to assume or continue in any City office, position or employment." Supreme Court found that Albanna was ineligible to assume the office of 1st Ward Councilman in the City of Lackawanna.

Albanna appealed but the Appellate Division sustained the lower court's ruling.

The Appellate Division explained that because Albanna stipulated the facts recited above in the course of the 2006 criminal action and "was convicted of a crime of moral turpitude," Supreme Court properly declared Albanna ineligible to assume the office of Councilman.

The decision is posted on the Internet at:


January 24, 2018

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty
Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:


[1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).

January 23, 2018

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment


Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment
Jiggetts v New York City Human Resources Admin., 2017 NY Slip Op 09236, Appellate Division, First Department

A  per diem employee, Kyle Jiggetts, was terminated from his position with the New York City Department of Homeless Services [DHS] 1994.

Jiggertts challenged his termination and an arbitrator concluded that, as a per diememployee, he could not challenge the termination of his employment under the disciplinary review procedures set forth in the controlling collective bargaining agreement.

Jiggetts, however, "continued to pursue lawsuits long after their lack of any legal basis was made apparent to him" and ultimately Supreme Court granted DHS's motion for sanctions. Jiggetts appealed.

The Appellate Division opined that given Jiggetts history of frivolous litigation, Supreme Court had providently exercised its discretion in imposing sanctions, which consisted of:

1. Ordering Jiggetts to pay $10,000;

2. Enjoining Jiggetts from commencing any further actions or proceedings arising out of his termination of employment from DHS without prior leave of the court.

The Appellate Division further explained that "[t]o the extent Jiggetts' remaining claims of discrimination and retaliation are not barred by res judicataprinciples based on prior federal and state court rulings rejecting his challenges to HRA's termination of his employment in 1994, they are barred by the applicable statutes of limitations, as the instant petition, filed in 2015, was commenced more than three years after petitioner was terminated in 1994."

The decision is posted on the Internet at:


January 22, 2018

The unauthorized removal of inoperative medical equipment may not constitute misconduct

The unauthorized removal of inoperative medical equipment may not constitute misconduct
OATH Index No. 2286/17

A respiratory therapist [RT] was charged with removing a respiratory device from a patient, failing to notify a doctor or clinical team that respiratory device had been removed, and failing to respond when summoned to report to the emergency department to provide respiratory care for a trauma patient.

OATH Administrative Law Judge Astrid B. Gloade credited proof showing the patient broke the device before RT had removed it and recommended dismissal of the charge related to RT removal of the device from the patient. In effect, Judge Gloade found that an unauthorized removal of a patient’s inoperative respiratory machine did not constitute misconduct on the part of RT under the circumstances.

In contrast, the ALJ found that RT's failure to notify the clinical team that of the removal the nonfunctioning device from the patient and RT's failure to respond when summoned by the emergency department constituted misconduct for which RT could be sanctioned in an administrative disciplinary action.

Accordingly, Judge Gloade, recommended that RT be suspended for sixty-days without pay.

The decision is posted on the Internet at:


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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.
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