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July 05, 2018

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor


Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor
Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges involving MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:


Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity
Fotopoulos v Board of Fire Commr. of the Hicksville Fire Dist., 2018 NY Slip Op 03128, Appellate Division, Second Department

New York courts have distinguished between proceedings brought against public entities  "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest." In Union Free School Dist. No. 6 of Towns of Islip and Smithtown v New York State Div. of Human Rights Appeal Board, 35 NY2d 371, 380, motion to reargue denied, 36 NY2d 807, it was held that an aggrieved individual must file a timely notice of claim "as to the former but not as to the latter."*

In this CPLR Article 78 action a volunteer firefighter [Petitioner] with the Hicksville Fire Department [Department] and a dispatcher employed by the Hicksville Fire District [District], working under the direction of the Board of Fire Commissioners of the Hicksville Fire District [Board] until he was allegedly forced to resign from both of these positions by coercion and duress.

When Petitioner subsequently attempted to withdraw his resignation, he was advised that the Department, the District, and the Board [collectively Respondents] refused to approve his request to withdraw the resignation.**

Petitioner initiated a CPLR Article 78 proceeding seeking a court order compelling Respondents to reinstate him to his former positions as a dispatcher and as a volunteer firefighter with all of the benefits of these employment including back pay. Respondents opposed the petition arguing, among other things, that the petition should be denied since Petitioner failed to file a notice of claim as required by General Municipal Law §50-e.

Supreme Court denied the petition and dismissed the proceeding, determining  that the Petitioner's failure to file a notice of claim precluded the court from considering the complaint. Petitioner appealed.

The Appellate Division explained that, as a general rule, "[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act" but such a notice of claim requirement does not apply when a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Further, said the court, a litigant who seeks "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the notice of claim requirement.

Finding that in Petitioner's case both equitable relief and the recovery of damages in the form of back pay was demanded, the Appellate Division sustained the Supreme Court's ruling, holding that "the filing of a notice of claim within 90 days after [Petitioner's] claim arose was a condition precedent to the maintenance of this proceeding."

* It should be noted that in CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected Lakeland's theory that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in §3813 of the Education Law. The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted [Lakeland's] waiving compliance with that requirement.”

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees of the State as an employer, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule.

The Fotopoulos decision is posted on the Internet at:

July 03, 2018

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses
Appeal of William King Moss III regarding a staff appointment, Decisions of the Commissioner of Education, Decision No. 17,409

Although the Commissioner dismissed this appeal for failure to serve a "necessary party" -- here the staff member whose appointment was challenged by Mr. Moss -- the Commissioner addressed an administrative matter.

The respondents in this appeal to the Commissioner had requested that the Commissioner "certify that “all board members” and the superintendent acted in good faith within the meaning of Education Law §3811(1) thereby authorizing the board to indemnify certain individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.
 
Education Law §3811, in relevant part, provides that "Whenever the trustees or board of education of any school district ... [shall] defend any action brought against them ...  all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge and shall be levied by tax upon the district."

Although the Commissioner observed that is appropriate to issue such certification unless it is established on the record that the requesting respondent[s] acted in bad faith, in this instance the Commissioner found it unnecessary to so certify because, in the words of the Commissioner, respondent’s costs in defending this proceeding are, by operation of statute, a cost upon the district, and no claims are interposed against any individual board members."

Accordingly, as respondent’s costs in defending an action or proceeding against the board are deemed a cost upon the district by Education Law §3811 and no individual board members are a party to this appeal, the Commissioner found that she "need not certify that respondent appeared to have acted in good faith."

In addition, the Commissioner found it unnecessary to grant respondent’s request with respect to the superintendent as he is not a party to the instant proceeding and, thus, was  not obligated to defend himself within the meaning of Education Law §3811.

The decision is posted on the Internet at:





July 02, 2018

Former corrections officer alleged to have used fake pay stubs in an effort to qualify for a mortgage


Former corrections officer alleged to have used fake pay stubs in an effort to qualify for a mortgage
Source: Office of the State Comptroller

A former New York state corrections officer and his wife were arrested Friday, June 29, 2018, for allegedly giving false pay stubs to “boost” their family income to qualify for mortgage loans from two banks as the result of an investigation by New York State Comptroller Thomas P. DiNapoli, the New York State Police and the New York State Department of Corrections and Community Supervision’s Office of Special Investigations (DOCCS).

The couple are accused of providing doctored prior DOCCS pay stubs to mislead the two banks that the husband was still employed by DOCCS, although he had left the agency the year before. The scheme "unraveled" when the banks contacted DOCCS to verify the applicant's employment.

"This couple thought they could use a forged state pay stub to trick two banks into giving them a mortgage," said State Comptroller Thomas P. DiNapoli.  "Thanks to my ongoing partnerships with the Department of Corrections, Office of Special Investigations and the New York State Police, their scheme was quickly exposed and they now will be held accountable for their actions.  I thank District Attorney Soares for prosecuting this case."

“I am proud of those staff with our Department’s Office of Special Investigations (OSI), who worked both internally and hand in hand with the Comptroller’s investigators, to assist in this arrest and possible future prosecution of the wrongdoers,” said DOCCS Acting Commissioner Anthony J. Annucci. “I commend the men and women of OSI who once again showed that with their skills and partnerships with other state agencies, we will continue to hold those fully accountable for their improper actions.”

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, N.Y. 12236.

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence


Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence
In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

The Appellate Division then considered the issue of whether Respondent's final determination was supported by substantial evidence. It found that it was, noting that "As relevant here, neglect is defined as an action 'that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient.'"

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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