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November 05, 2018

Unauthorized recording of a court proceeding


Unauthorized recording of a court proceeding
Matter of Attorney Grievance Committee M-3080, 2018 NY Slip Op 07278, Appellate Division, First Department

Attorney Grievance Committee M-3080 for the First Judicial Department instituted disciplinary against an attorney alleging the attorney had made an unauthorized recording of a court proceeding in violation of New York Rules of Professional Conduct, 22 NYCRR 1200.0 rule 8.4(d), Conduct Prejudicial to the Administration of Justice.

The Committee found the attorney guilty of professional misconduct and a Referee was appointed to conduct a sanction hearing. Ultimately the parties stipulated that the attorney had engaged in a pattern of misconduct that was prejudicial to the administration of justice.

Noting  that [1] the attorney had no disciplinary history nor had ever been sanctioned by any court for misconduct; [2] the misconduct arose in the course of a contentious domestic relations action in which the attorney appeared pro se; [3] the attorney at the time of the incident had limited experience in the practice of law; and [4] the attorney had acknowledged  the wrongfulness of making an unauthorized recording in light of Rule 8.4(d), the Appellate Division found that " public censure" was an appropriate penalty and granted the parties' motion for "discipline by consent."

The decision is posted on the Internet at:


November 02, 2018

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits


Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits
Hughey v Metropolitan Transp. Auth., 2018 NY Slip Op 02129, Appellate Division, First Department

Plaintiff in this action retired from his position with the Long Island Rail Road, an MTA subsidiary, at age 63.49. Plaintiff, as a commuter rail employee, was also eligible to  receive Tier II pension benefits after the requisite years of service under the Railroad Retirement Act. In addition, MTA employees receive pension benefits from the MTA Pension Plan.

Article 3.07(a)(ii) of the MTA Pension Plan, provide for an "offset" that reduced the amount of benefits payable under the Plan by the benefits "which would be payable to the Member involved at age 62 under Tier II. "Plaintiff, however, was still in service at age 62 and did not retired from MTA at age 63.49. Accordingly, the amount of the offset was determined by the MTA's Board of Managers on the basis of Plaintiff's actual age at the effective date of his retirement, 63.49 years of age.

Plaintiff sought a review of the Board's determination basing his pension benefits on his actual age at retirement, 63.49 years rather than determining his pension benefits to be that which would have been payable had he actually retired at age 62, a difference of $160.83 per month.

The Board denied Plaintiff's appeal, which determination was affirmed by the Appellate Division. 

The court explained that "Article 6.02 of the Plan conferred on its Board of Managers" sole and absolute discretionary authority to interpret the Plan and decide any dispute and all matters arising in connection with the operation or administration of the Plan, as well as to decide questions, including legal and factual questions, relating to the calculation and payment of benefits under the Plan.

The decision is posted on the Internet at:


November 01, 2018

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious


Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious
Hayes v Nigro, 2018 NY Slip Op 07124, Appellate Division, Second Department

New York City Firefighter Sean Hayes charged with violating New York City Fire Department [FDNY] rules and regulations barring the use of prohibited substances.

In lieu of going forward with a disciplinary proceeding, Hayes settled the matter by entering into a stipulation with the FDNY that [1] allowed him to vest his pension in lieu of facing the penalty of termination and [2] set out his admission to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office.

Some three years later Hayes applied for reinstatement to his former position with FDNY. His application was rejected by the Commissioner in consideration of his disciplinary record and the untimeliness of the request. Hayes then initiated an Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement to his former position of firefighter.*

The Supreme Court denied the Article 78 petition and Hayes appealed the court's decision.

Sustaining the Supreme Court's decision, the Appellate Division explained that:

1. A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of his or her separation from the FDNY and Hayes' request some three years after his resignation was untimely;

2. Reinstatement is not a right and the decision to reinstate a former employee is within the sole discretion of the Commissioner, and who is not required to state a reason for denying the reinstatement; and

3. The Commissioner's determination rejecting the request will be sustained  unless it is shown to be arbitrary or capricious or an abuse of discretion.

In this instance, said the court, Hayes did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY after admittedly illegal and potentially dangerous conduct. Thus, said the Appellate Division,  agreeing with Supreme Court, "the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion."

Addressing Hayes' efforts with respect to "discovery," the Appellate Division said that such discovery was "not relevant to the Commissioner's individualized and discretionary assessment of [Hayes'] application" for reinstatement.

* Hayes also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of his Article 78 proceeding. 

The decision is posted on the Internet at:

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