Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Appeal of J.M from action of the Board of Education of the Croton-Harmon Union Free School District, Decisions of the Commissioner of Education, Decision No. 17,402

In some instances an appeal to the Commissioner of Education is dismissed for failure to comply with certain procedural requirements. The appeal of J.M. illustrates one of the reasons why an appeal is rejected on technical grounds, in this instance for lack of proper service of the appeal on the respondent parties.

Croton-Harmon Union Free School District, in its reply to J.M.'s appeal, contended that the appeal must be dismissed for lack of proper service. The Commissioner agreed, explaining that the Commissioner’s regulation requires that the petition be personally served upon each named respondent as set out in 8 NYCRR §275.8(a).*

In the event a school district is named as a respondent, 8 NYCRR §275.8(a) requires that service upon the school district "shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

J.M.'s affidavit of service indicated that the appeal was served upon the secretary to the superintendent.  Although the affidavit of service attests that the secretary was “duly authorized to accept service,” Croton-Harmon said that the secretary has not been designated by it to accept service on behalf of the school district or the superintendent. 

The Commissioner, noting that J.M. did not submitted a reply or otherwise responded to the Croton-Harmon’s "motion to dismiss" J.M.'s appeal, said that in the event there is no proof that an individual is authorized to accept service on behalf of respondent, "service is improper and the appeal must be dismissed."

The Commissioner observed that considering the record before her, "I cannot conclude that [J.M.] properly served a copy of the notice of petition and petition on [Croton-Harmon]" and, accordingly, J.M.'s appeal must be dismissed.

Another common procedural defect resulting in the dismissal of the appeal is the petitioner's failure to serve a "necessary party" as required by 8 NYCRR 277.1(b).**

A "necessary party" is a  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. Further, joinder as a necessary party requires that an individual be clearly named as a necessary party by name in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Further, it is the petitioner's burden to properly serve the petition and the service of the petition and the petitioner must submit evidence that that has been done. In the absence of such evidence, the Commissioner has ruled that the appeal must be dismissed "for improper service."

* 8 NYCRR 275.8, service of pleadings and supporting papers, provides as follows:

(a) Petition. A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner. If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services. Pleadings may be served by any person not a party to the appeal over the age of 18 years. If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

** In Decisions of the Commissioner of Education, Decision #16,853 the Commissioner noted that although a necessary party had not been named in "the original petition," her Office of Counsel had advised the all the parties that the petitioner's earlier request to join an individual as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include that [individual] in the original petition is not a basis for dismissal of this appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17402

New York State's Comptroller and New York State's Attorney General announce guilty plea of Queens pharmacy owner for $1.5 million Medicaid fraud scheme

New York State's Comptroller and New York State's Attorney General announce guilty plea of Queens pharmacy owner for $1.5 million Medicaid fraud scheme

Source: Office of the State Comptroller

On June 8, 2018 State Comptroller Thomas P. DiNapoli and Attorney General Barbara  Underwood announced that Arkady Goldin of Brooklyn and Value Pharmacy, Inc., ["Value"] a pharmacy formerly located in Corona, Queens before re-locating to its current location in Lynbrook, NY, entered felony guilty pleas in Supreme Court, Queens County admitting to defrauding the State’s Medicaid program out of $1.5 million. The case was investigated and prosecuted as part of the Attorney General and State Comptroller’s Joint Task Force on Public Integrity.

The State Comptroller said that "Arkady Goldin billed Medicaid millions for cancer medications he never dispensed. Thanks to our partnership with the Attorney General’s Office, Goldin has been convicted, his corrupt pharmacy closed, and he and his partners will pay the state back for the $3 million total in stolen Medicaid funds" while the Attorney General added that “We have zero tolerance for those who defraud the state’s Medicaid program. We will continue to aggressively pursue all individuals who steal from Medicaid to enrich themselves at the expense of those who need the program for their fundamental health care.”

Supreme Court Justice Barry Kron accepted Goldin’s guilty plea to Health Care Fraud in the Second Degree, a class C felony, and to violating the Social Services Law prohibition on the payment of kickbacks related to the State’s Medicaid program, a class E felony.

The pharmacy entered a guilty plea to Grand Larceny in the First Degree, a class B felony. Goldin will be sentenced to six months incarceration, five years’ probation, and, along with Value, will be required to pay $1.5 million as restitution for money stolen from Medicaid. The defendants will also pay an additional $1.5 million in financial penalties, including a $10,000 fine that must be paid by the corporation. Goldin will also be required to perform 200 hours of community service.

Goldin's and Value's pleas will also resolve a separate civil asset forfeiture and False Claims Act law suit filed by the Attorney General’s Medicaid Fraud Control Unit Civil Enforcement Division in New York State Supreme Court, Queens County.

In papers filed in court, the State alleged that Goldin, an owner of Value, which formerly was located in Corona, Queens, had a kickback arrangement with a former employee of Nassau University Medical Center (NUMC) who earlier in the investigation pleaded guilty to unlawfully accepting kickbacks related to Medicaid services. In exchange for steering expensive cancer prescriptions from NUMC to Value, Goldin paid the hospital employee a monthly cash referral fee and provided him with other items of value, including tickets to sporting events, an iPad, and free meals. State law prohibits all medical providers, including pharmacies, from paying or offering to pay kickbacks to another person in return for the referral of medical services ultimately paid for by Medicaid.  

Additionally, as part of the scheme, the investigation uncovered that Value did not purchase sufficient amounts of medication from licensed New York State drug wholesalers that would have been necessary if Value legitimately dispensed prescriptions for which Value billed Medicaid. As a result of the unlawful scheme, Medicaid ultimately paid Value over $1.5 million for unlawful claims for medications.

Since 2011, the Attorney General and Comptroller have worked together to fight corruption through their Joint Task Force on Public Integrity. They have brought charges against dozens of individuals implicated in public corruption schemes around the state – resulting in the return of millions in restitution to taxpayers through these convictions.

Comptroller DiNapoli’s investigation was led by the OSC Division of Investigations, working with the OSC Division of State Government Accountability.

The AG’s MFCU investigation was conducted by Investigator Daniel McCarron with the support of Supervising Investigators Dominick DiGennaro and Ronald Lynch, under the supervision of MFCU Deputy Chief Investigator Kenneth Morgan. Financial analysis was developed by Auditor-Investigator Edgar Romero and Senior Auditor-Investigator Olga Sunitsky, under the supervision of MFCU NYC Regional Chief Auditor Thomasina Smith. Investigative support was provided by Supervising Legal Assistant Wendy Dorival, as well as Confidential Legal Analysts Victoria Sepe, Daniel Herzog, and Patrice Noel. Additional components of the investigation were supported by Assistant Attorney General Lisa Wallace and Bureau Chief Brent Meltzer of the Attorney General’s Real Estate Finance Bureau.

The criminal case was prosecuted by Special Assistant Attorneys General Michael Leigh and Megan Friedland under the supervision of MFCU NYC Deputy Regional Director Twan Bounds, Regional Director Christopher M. Shaw, and MFCU’s Chief of Criminal Investigations–Downstate Thomas O’Hanlon. The civil case was litigated by Special Assistant Attorneys General Elizabeth Kappakas and Diana Elkind, with the assistance of MFCU Civil Enforcement Division Chief Carolyn Ellis. MFCU is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2018 NY Slip Op 03688, Appellate Division, Second Department

This proceeding involved a dispute between Village of Garden City [Village],  and the Professional Firefighters Association of Nassau County, Local 1588 [PFA] concerning  Village's implementation of a staffing protocol that was formulated to ensure compliance with a prior arbitration award that was earlier confirmed by this court.* The arbitrator in the earlier arbitration had found that the Village violated the parties' collective bargaining agreement [CBA] by assigning the operation of first-line equipment to volunteer firefighters rather than to paid firefighters represented by PFA.  

PFA filed a grievance contending that the new protocol continued to improperly assign the operation of first-line equipment to volunteer firefighters and demanded arbitration. The Village objected to submitting this new grievance to arbitration and filed an Article 75 petition seeking a permanent stay of the arbitration. Supreme Court issued denied the Village's petition and granting PFA's motion to compel arbitration of the grievance. The Village appealed the Supreme Court's ruling.

The Appellate Division ruled that Supreme Court properly denied the Village's petition to permanently stay arbitration of the grievance and granted PFA's motion to compel the arbitration of the grievance noting that in the earlier proceeding it had ruled that  grievances challenging the operation of first-line equipment by volunteers were arbitrable.

Referring to the two-part test used by the courts to determine whether a dispute between a public sector employer and employee is arbitrable** the court explained that:

1. "Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance;

2. "If there is no prohibition against arbitrating, the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute;

3. "In examining the collective bargaining agreement, the court must merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement];

4. "If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

As the Village was unable to demonstrate that arbitration of PFA's instant grievance was prohibited by statutory or public policy or that PFA's instant grievance was not reasonably related to the general subject matter of the CBA, the court again ruled that the question of the scope of the substantive provisions of the CBA was a matter of contract interpretation and application reserved for the arbitrator.

* See Matter of Professional Firefighters Assn. of Nassau County, Local 1588, Intl. Assn. of Firefighters, AFL-CIO v Village of Garden City, 119 AD3d 803.

** See Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03688.htm

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Buckley v City Of New York, 56 N.Y.2d 300

[Decided with Lawrence v City of New York]

These cases essentially involved the question of whether the fellow-servant rule continues to apply in New York. 

In each case an employee of the City of New York, who was injured through the negligence of a coemployee, brought an action against the City. In Buckley v City of New York, a police officer was accidentally shot in the leg when a gun being loaded by a fellow officer discharged in the station house locker room. In Lawrence v City of New York, a fire fighter was seriously injured when a fellow fire fighter threw a smouldering couch from the second story window of a fire-damaged building and struck the plaintiff while he was standing in the yard.

In each case the plaintiff secured a jury verdict of liability against the city on a theory of vicarious liability and the city's motion to dismiss the complaint on the basis of the fellow-servant rule was denied. The Appellate Division affirmed the judgments in both instances and leave has been granted to appeal to this court. The Court of Appeals affirmed the Appellate Division's ruling.

The doctrine of  rule of respondeat superior holds that the employer will be liable to third parties for torts of an employee committed within the scope of his or her employment.

In contrast, the fellow-servant rule is triggered in the event an employee is injured by a fellow employee in the workplace. The injured worker will have no recourse against the employer in respondeat superiorand the rule provides that "where a servant is injured through the negligence or fault of a fellow servant, engaged in a common business and employment ... if the master is himself free from fault, the master is not responsible for the injury."

The Court of Appeals observed that "The over-all effect of the fellow-servant rule was drastically curtailed by the advent of workers' compensation legislation," concluding that "Today we are squarely presented with the question left open in Poniatowski — whether the fellow-servant rule is to survive in New York. The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation, and was dealt an almost fatal blow in this State in Poniatowski v City of New York, 14 N.Y.2d 76.

Today, said the court, in rejecting this rule entirely, we inter its remains," explaining "The fellow-servant rule serves no continuing valid purpose in New York, but instead merely works an unjustifiable hardship upon individuals injured in the workplace, and we must thus conclude that the fellow-servant rule is no longer to be followed in New York."

The Buckley decision is posted on the Internet at:

https://www.leagle.com/decision/198235656ny2d3001326

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Woolfolk v New York City Board/Dept. of Educ., 2018 NY Slip Op 03765, Appellate Division, First Department

Supreme Court denied the employee's petition to set aside the employer's annual performance rating of the employee as "ineffective" upon the court's determinating that any right to initiate a legal or equitable claim concerning the rating was waived by employee's "Stipulation of Settlement" of disciplinary charges filed against the employee.

The employee had been served with disciplinary charges pursuant to Education Law §3020-a. Prior to the adjudication of those charges, the employee and the appointing authority entered into a "Post-Charge Stipulation of Settlement" to discontinue the disciplinary action. Subsequently the employee filed an administrative appeal challenging the "ineffective" annual performance rating received by the employee. The administrative appeal was rejected by the appointing authority and employee initiated an Article 78 proceeding challenging the appointing authority's rejection of the appeal.

Sustaining the Supreme Court's dismissal of the employee's Article 78 petition, the Appellate Division, citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, explained that it is well settled that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing."

In this instance, said the court, "the clear and express terms of the stipulation of settlement" indicated that the employee had waived any right to file a claim in court relating to any matter arising from or relating to her employment prior to December 2015, including this challenge to the individual's year-end performance rating of "ineffective" for the prior school year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03765.htm

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Cannavo v Olatoye, 2018 NY Slip Op 03740, Appellate Division, First Department

The Cannavo decision by the Appellate Division is set out below, with comments concerning some of the more "troublesome" elements of the ruling set out in bold in blue.

Supreme Court denied Cannavo's application for reinstatement to his former position with the New York City Housing Authority (NYCHA), and dismissing the proceeding brought pursuant to CPLR Article 78, which ruling was unanimously affirmed, by the Appellate Division without costs. The Appellate Division's ruling states:

"The article 78 court correctly determined, upon consideration of all the facts, that respondents' denial of petitioner's application for reinstatement to his former position with NYCHA was not arbitrary and capricious or an abuse of discretion (see Matter of Roberts v Gavin, 96 AD3d 669, 671 [1st Dept 2012])."

The decision reports that Cannao sought reinstatement with NYCHA following his retirement from NYCHA. As reinstatement of a former employee to his or her former position is a matter subject to the exercise of the discretion of the appointing authority, and absent such denial of the request for a discriminatory reason or unlawful purpose, the appointing authority's denial of the retiree's request for reinstatement is otherwise lawful.

A retiree may be reemployed following his or her retirement subject to the limitations set out in §150 of the Civil Service Law. Further, §13-119 and 13-178 of the New York City Administrative Code addressed a retired member's eligibility to rejoin the relevant retirement system without any limitation based on "jurisdictional classification" of the position to which reemployment is sought.

The decision then continues:

"Despite petitioner's previous position as a "civil service" employee with the New York City Department of Housing Preservation and Development (HPD), when he was hired by NYCHA in 1996, it was in a non-competitive position that was not eligible for civil service status, as NYCHA's records reflect." 

The Civil Service of the State of New York, in contrast to the "military service" of the State of New York, consists of positions Exempt Class [CSL §41]; the Non-competitive Class [CSL §42]; the Labor Class [CSL §43] and the Competitive Class [CSL §44], which positions are in the "Classified Service" and positions the Unclassified Service, which positions are set out in CSL §35. 

No explanation or justification is provided with respect to the representation that Canno "was not eligible for civil service status" with NYCHA.

As to the status of HPD and NYCHA, the list of "New York City Agencies" listed on the Official Website of the City of New York includes, among other agencies:

●  Housing Authority, New York City (NYCHA)  and

●  Housing Preservation and Development, Department of (HPD)

As Yul Brynner exclaims in The King and I, "is a puzzlement!" as to why Canno "was not eligible for civil service status" with NYCHA because of the jurisdictional class of the position.

Upon a review of records kept by HPD, NYCHA, and the Department of Citywide Administrative Services, respondents determined that petitioner's civil service status had not been formally transferred from HPD to NYCHA, and, since only those who have civil service status are eligible for reinstatement following retirement, rationally concluded that petitioner was not eligible for reinstatement.

This conclusion is troublesome as it appears that Canno resigned from his position in the "Civil Service" with HPD in favor of a de novo appointment to a position in "Civil Service" in the Non-competitive Class with NYHCA. The decision is silent with respect to the basis for the determination that petitioner lacked "civil service status" with NYCHA.

Further, there is no bar to the reinstatement of a retiree to his or her former position should the appointing authority approve such a reinstatement regardless of the jurisdictional classification of the position involved. 

The reinstatement, reappointment, reemployment or new appointment of a person otherwise qualified receiving a New York State public retirement system benefit is permitted at the discretion of the appointing authority, subject to the provisions and limitations set out in CSL §150 with respect to the suspension  of the individual's  pension  and  annuity and limits on compensation during such public employment.

The opinion continues:

While petitioner claims that certain NYCHA documents — including a notification of appointment and performance reviews he received in 1996 — reflect that he maintained his competitive civil service status, the record shows that he subsequently had many conversations with Human Resources and took actions to obtain a formal transfer. Moreover, attached to the petition is a 1996 memo from Human Resources informing petitioner that he did not, in fact, possess this status. As the court found, this is not a rare or extraordinary case in which the doctrine of estoppel or laches should be applied against a government agency (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]).

With respect to the noting that Canno "took actions to obtain a formal transfer" as here relevant [see NYCRR 1.2(b)(1)], assuming, but not conceding, that such was, in fact, the case, a transfer from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of a different appointing authority requires the approval of both appointing authorities.

In contrast, as indicated by 4 NYCRR 1.2(b)(2) , the placement of an individual under the jurisdiction of the appointing authority to another position under the jurisdiction of the same appointing authority having the same title is a "reassignment" not a "transfer."

The bottom line: A individual who retired from a position in the Classified Service is not barred from being reinstated to his or her former position if available and otherwise permitted by the controlling provisions of the Civil Service Law regardless of his or her pre-retirement "appointment status" in such position, i.e., permanent, contingent permanent, temporary, provisional, military substitute, or term and regardless of the jurisdictional classification  or budgetary status of the position in question if otherwise available for appointment thereto. 

The decision concludes:

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2018

CLERK

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2018/2018_03740.htm