Rejection of an applicant for appointment as a police officer based on a finding that the applicant was psychologically unfit for the position

Supreme Court granted the appointing authority's [Employer] motion to dismiss a CPLR Article 78 petition filed by an applicant [Plaintiff] for appointment as a police officer seeking to annul the Employer's decision not to certify Plaintiff for appointment dismissed the proceeding.

Plaintiff appealed the Supreme Court's ruling, arguing that the Employer's determination to disqualify him for appointment to the position was arbitrary and capricious.

The Appellate Division disagreed and sustained the Supreme Court's decision. In the words of the Appellate Division, the Employer's determination "was not arbitrary and capricious and had a rational basis." Citing Matter of City of New York v New York City Civ. Serv. Commn., 61 AD3d 584, the court explained the Employer "has wide discretion in determining the fitness of candidates[,] . . . particularly . . . in the hiring of law enforcement officers, to whom high standards may be applied," noting that the Employer had "reasonably relied on the findings of two psychologists, both of whom, after interviewing the Plaintiff, concluded that, for a variety of reasons, Plaintiff "was psychologically unfit for the position of police officer."

As Plaintiff had neither demonstrated [a] the existence of a triable issue of fact but only advanced unsubstantiated allegations and speculation concerning the motives of the psychologists who recommended denial of his application nor [b that further discovery was warranted under the circumstances, the Appellate Division unanimously dismissed Plaintiff's appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03740.htm

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."

The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03921.htm

Individuals receiving public assistance injured while working in a work experience program are eligible for Workers' Compensation benefits

A recipient of public assistance [Claimant] filed a claim for workers' compensation benefits after sustaining an injury while assigned to work for the County as part of a work experience program [WEP]. Following a hearing, a Workers' Compensation Law Judge [WCLJ] established the claim for a work-related injury, finding that Claimant's average weekly wage was $124.62.  The Claimant did not return to work but was not paid a workers' compensation benefit for lost wages because he was receiving his regular public assistance benefit. The WCLJ, however, kept the claim open for further medical evidence regarding permanency of the injury and schedule loss of use.

Claimant subsequently asked that his claim for lost wage benefits be reopened because his public assistance benefit had been suspended due to a change in the composition and income of his household. Ultimately the County asked Workers' Compensation Board [Board] to review the matter, contending that Claimant's public assistance that he received during his work experience program assignment should not be treated as wages for the purpose of calculating a workers' compensation award.* The Board, however, ruled, in part, that public assistance benefit payments made to a claimant pursuant to a WEP constituted wages under the Workers' Compensation Law. The Board and its third party administrator appealed but the Appellate Division dismissed the appeal "as interlocutory."**

A second hearing was then was conducted and the WCLJ found that Claimant had sustained a 7.5% "schedule loss of use" that entitled him to 18.3 weeks of benefits. Ultimately Claimant was awarded $1,830 and the Board concluded that the entire award was payable as a credit to the County. The County and its third-party administrator again appealed the Board's ruling, contending that Claimant is not entitled to any "lost-wage benefits" award because the public assistance benefit that he received was not a "wage" as defined by Workers' Compensation Law §2(9).

After an extensive legal analysis of the matter by the Appellate Division "under well-settled principles of statutory interpretation," the court concluded that the provisions of the "applicable statutory scheme must be construed together and harmonized" in a way that renders them compatible and achieves the legislature's intent rather than to consider the definition of the term wage or wages "in isolation."

Observing that a recipient of public assistance may be required to participate in work activities, including experience working in the public sector, the court opined that "[t]he amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage." 

Significantly, the decision notes that the fact that recipients of public assistance must participate in a WEP to receive benefits without reduction "means that the public assistance paid to WEP participants directly serves as compensation for the work performed."

Holding that public assistance benefits paid to WEP participants are wages as defined in the Workers' Compensation Law, the Appellate Division opined that its ruling was consistent with the Court of Appeals' observation that the "rate and method of payment of WEP workers is determined by the Social Services Law."***

The decision concluded with the observation that providing awards for WEP participants "injured on the job" also benefits those who host WEP participants "by ensuring that workers' compensation is [a WEP participant's] exclusive remedy for injuries [he or she] sustained in the workplace."

*  While Board review was pending, a WCLJ determined that there was insufficient medical evidence to support an award.

** See 146 AD3d 1065. As a general rule, a party does not have a right to appeal a court's interlocutory order or an interlocutory decision.

*** See Matter of Carver v State of New York, 26 NY3d 272

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03870.htm

An objection to a statement in a court's opinion that is determined to be "dicta" does not provide a basis for appeal

The views of a judge expressed in his or her opinion that do not have any impact or are required for the resolution or determination of a specific case before the court are referred to as dicta. They constitute statements in a court's opinion that go beyond the facts before the court and thus only reflect only the views of the writer of the opinion and although they might be interesting, and possibly instructive, they are not binding in subsequent cases as legal precedent. This appeal from a CPLR Articel 78 decision by Supreme Court concers an appeal of a statement by Supreme Court that the Appellate Division deemed to constitute dicta. 

College student A, attending College X, filed a complaint pursuant to College X's "Student Sexual Misconduct Policy" [Policy] alleging that another college student [Student B] attending College Y had violated the Policy during an incident that occurred off-campus. College X subsequently advised Student B that, after a thorough investigation, it had determined, by a preponderance of the evidence, that Student B had violated College X's Policy and that College X would contact College Y and provide it with a redacted copy of the investigation report and record documents.

Student B initiated a CPLR Article 78 proceeding seeking, among other things, [1] to annul College X's determination, contending that it was arbitrary and capricious and [2] to enjoin College X from giving the complaint and investigation record to College Y.

Supreme Court granted Student B's petition, finding that, because petitioner was not a student at College X and the alleged misconduct took place off campus, College X lacked jurisdiction under the Policy and, as such, College X's  determination was arbitrary and capricious.  In addition, Supreme Court opined that it "f[ound] that the conduct demonstrated by [College X] towards [Student B] during the initial course of this investigation was a clear violation of [Student B's] constitutional rights."

College X appealed the Supreme Court's ruling but only for the purposed of vindicating itself with respect to that part of the Supreme Court's decision that stated that College X had violated Student B's constitutional rights.

The Appellate Division, noting that College X did not challenge Supreme Court's holding that its decision was arbitrary and capricious, concluded College X's appeal sought only to vacate that part of the Supreme Court's decision finding that College X violated Student B's constitutional rights,

The Appellate Division, citing Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, pointed out that the focus of College X's appeal, therefor was appealing dicta, as the inclusion of that statements was "not necessary to resolve [the] issue." On the other hand, noted the Appellate Division, College X did to challenge Supreme Court's holding that College X's actions in this instance were arbitrary and capricious. As "disagreement with dicta does not provide a basis to take an appeal" the court said that "this issue is not properly before us", implying that neither was the issue concerning Supreme Court's holding that College X's actions were arbitrary and capricious as College X had not appealed that branch of the Supreme Court's ruling.

Although Student B, in effect, prevailed in the appeal of the Supreme Court's ruling filed by College X, the Appellate Division declined to issue sanctions, explaining that although [College X's] argument lacks merit, we do not find it to be frivolous."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03872.htm