ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 15, 2019

Exception to having to exhausting administrative remedies as a condition precedent to an employee initiating litigation against his employer


The Plaintiff in this action, a school teacher employed by the defendant City of New York Department of Education [DOE], sued DOE to recover damages for personal injuries she alleges she sustained at the high school where she worked. The Plaintiff claimed that she had been trapped inside a school elevator until she was extracted from it, "which required her to jump from the elevator to the third floor," and suffered an injury to her back as a result.

Prior to commencing this action, the Plaintiff applied to the DOE for "line of duty injury" paid medical leave pursuant to the terms of a collective bargaining agreement [CBA]. The DOE denied the application without providing the Plaintiff with a reason for its determination. Plaintiff decided not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and commenced this action.

The DOE and the defendant City of New York [Defendants] moved to dismiss the complaint insofar as asserted against them on the basis that Plaintiff failed to exhaust her administrative remedies under the CBA. In the alternative, Defendants contended that dismissal was warranted under collateral estoppel and, or, res judicata. Supreme Court granted that branch of the motion seeking to have the court dismiss the complaint insofar as asserted against the Defendants, explaining that Plaintiff failed to exhaust her administrative remedies under the CBA. Plaintiff appealed the Supreme Court's decision and the Appellate Division reversed the lower court's ruling.

Although it is "black letter law" that an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies or face dismissal of the action, in this instance the Appellate Division said that Plaintiff was seeking to recover damages against the Defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's "line of duty injury" paid leave grievance provisions.

Accordingly, opined the court, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA," citing Bregman v East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Matter of Van Tassel v County of Orange, 204 AD2d at 561.

With respect to the Defendants' argument that dismissal is also warranted on the basis of collateral estoppel and res judicata, the Appellate Division opined that the dismissal of the case by reason of the doctrine of collateral estoppel was without merit, explaining that the issue that Plaintiff seeks to pursue here was not shown to have decided by the DOE when it denied the plaintiff's "line of duty injury" paid leave application.  

Addressing the application of the doctrine of res judicata, or claim preclusion, in this action, the court ruled that this, also, is inapplicable to the Plaintiff's complaint "because the relief she seeks could not have been awarded within the context of the prior administrative proceeding," citing Lasky v City of New York, 281 AD2d at 599.

Thus, ruled the Appellate Division, Supreme Court should have denied that branch of the Defendants' motion to dismiss the complaint insofar as asserted against them.

The decision is posted on the Internet at:

July 13, 2019

Keeping the name and other personnel information contained in official documents disclosed to the public confidential

Supreme Court, New York County, dismissed the CPLR Article 78 petition filed by Plaintiff to annul a decision of the New York City Office of Trials and Hearings [OATH], denying Plaintiff 's request that OATH "redact his name and other personal information from any document it disclosed to the public" and order the municipal respondents to keep the OATH reports of Plaintiff and all others similarly situated confidential.


Plaintiff appealed the Supreme Court's ruling, contending that the report and recommendations issued by OATH were "confidential" within the meaning of Civil Rights Law §50-a.*

Citing Niagara Mohawk Power Corp. v New York State Department of Environmental Conservation, 169 AD2d 943, the Appellate Division dismissed Plaintiff's appeal as moot, explaining that because the report objected to by Plaintiff has been publicly available from multiple sources, including the OATH and LEXIS websites, for a considerable period of time, it could not provide Petitioner any meaningful relief.

In addition, it should be noted that with respect to the publication of reports of judicial, quasi-judicial, legislative and other official actions, §74 of New York State's Civil Rights Law provides that "A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published." This section, however, does not apply to actions involving alleged libel contained in any matter "added by any person concerned in the publication or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof."

* Civil Rights Law §50-a provides that " All personnel records used to evaluate performance toward continued employment or promotion, police officers, firefighters and correction officers are confidential."

The decision is posted on the Internet at:

July 12, 2019

Pew Charitable Trusts survey of state-run public pension systems


A Pew Charitable Trusts survey reports that poorly funded pension plans for state and local public employees experienced "financial erosion" in recent years despite strong investment returns.

These findings are presented in a new report from The Pew Charitable Trusts that surveys the health of state-run public pension systems.

Based on Governmental Accounting Standards Board criteria, in 2017 only 8 states were at least 90% funded. In contrast, as of 2017, 24 public retirement systems were reported as being below 70% funded according to the Pew report.

The New York State and Local Employees' Retirement System/New York State Police and Fire Retirement System report that for fiscal 2018, the most recent figures available, the market value of assets [MVA] was 98.0% funded and the actuarial value of assets [AVA] was 95.0% funded.

The New York State Teacher's Retirement System reports that as of July 1, 2018, the most recent figure available, the Teacher's Retirement System was 101% funded based on the market value of assets (MVA) and 99% funded based on the actuarial value of assets (AVA).

For information about Pew's "Retirement Savings" project, please visit: https://www.pewtrusts.org/en/projects/retirement-savings/about

Source: Government Executive Media Group Route Fifty article by Bill Lucia, Senior Reporter.

CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.