June 07, 2019

Judicial review of an arbitration award resulting from compulsory arbitration stricter than judicial review of an award resulting from voluntary arbitration

The Appellate Division unanimously affirmed a Supreme Court's granting the petition of the Board of Education to vacate an arbitration award and the penalty imposed by an arbitrator and remanded the matter to different "appropriate arbitrator" on the panel established to hear cases involving allegations of teacher misconduct.

Ruling that the lower court "correctly vacated the arbitration award in this disciplinary action," which was subject to compulsory arbitration, the Appellate Division explained that judicial review is "stricter (for compulsory arbitration) than for a determination rendered (after) ... voluntary arbitration". Here, said the court, the record supports the Supreme Court's conclusion that the arbitrator's opinion and award was not only irrational, but also arbitrary and capricious.

The Appellate Division noted that the administrative record supported the lower court's determination to sustain all charges and specifications filed against the educator, two of which were based the teacher's conduct and statements, "which threatened physical violence and placed at least one child in fear of his physical safety."

The court also sustained the Supreme Court's upholding the specification of misconduct charging certain students who were the target of the teacher's racist comments "could not have been 'unaffected' by the statements, which were far from 'benign' or 'uplifting,' as characterized by the arbitrator."

The decision is posted on the Internet at:

June 06, 2019

Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "settled" the subsequent disciplinary action taken against the officer by entering into a "stipulated agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

Prior to the expiration of his disciplinary probationary period the police officer arrested on assault charges and later dismissed from his position. Later still, the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.**

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be been dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals termination, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement,
Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylorwas subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate
Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating
Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

Agreeing with the Supreme Court justice that Green failed to prove the existence of any basis for granting the relief he sought,  the Appellate Division dismissed his appeal.

* A plea by which a defendant in a criminal prosecution accepts conviction as though a guilty plea had been entered but does not admit guilt. A plea of "nolo contendere," has the same primary legal effects as a guilty plea.

** Robert Green, Jr.  v. New York City Police Department et al., 235 AD2d 475.  Rejecting the police officer demand for "a name-clearing hearing," the Appellate Division explained that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

June 05, 2019

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:

June 04, 2019

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:

June 03, 2019

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.

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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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