Eligibility for supplemental benefits being paid pursuant to General Municipal Law §207-a terminates upon the disabled firefighter attaining his mandatory service retirement age

Plaintiff, a former City of Buffalo firefighter who was granted performance of duty disability retirement benefits in accordance with Retirement and Social Security Law §363-c received a supplemental benefit until the City of Buffalo [Respondent] discontinued paying the supplement upon Plaintiff's attaining age 62.*

Plaintiff initiated a proceeding pursuant to CPLR Article 78 seeking reinstatement of the supplemental benefit, with back payment, contending that Chapter 585 of the Laws of 2008 amended Retirement and Social Security Law [RSSL] §384-d(i) and revised the mandatory service retirement age from age 62 to age 65. Plaintiff argued that he was being denied equal protection of the law in view of the fact that "other similarly situated firefighters" continued to receive the supplemental benefit from appointing authority beyond age 62.

Supreme Court denied the petition and Plaintiff appealed. The Appellate Division affirmed the Supreme Court's ruling, noting that "[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature," citing Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205.

The Appellate Division opined that the plain language of the amendment and its legislative history  establish that the amendment was intended, as relevant to Plaintiff, to permit certain firefighter members of the retirement system who are "capable of performing the duties of their position" to continue working until the age of 65 while retaining the mandatory service retirement age of 62 for disabled firefighters receiving RSSL §384-d(i) retirement plan benefits.

In the words of the court, "[w]hen the terms of related statutes are involved, as is the case here, they must be analyzed in context and in a manner that harmonize[s] the related provisions . . . [and] renders them compatible," citing Matter of M.B., 6 NY3d 437. As it was undisputed that the Plaintiff is not "capable of performing the duties of [his] position ... the mandatory service retirement age applicable to him" is 62." Accordingly, the Appellate Division opined that Supreme Court "properly determined that [Plaintiff] was not entitled to the supplemental benefit after he attained [age 62]."

Addressing Plaintiff's contention that he had been denied "equal protection of the law" when Respondent discontinued paying him the supplement to his retirement allowance upon his attaining age 62, the Appellate Division said that Plaintiff had presented "no evidence . . . to support a finding that [he] ha[d] been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."

Thus, ruled the Appellate Division,  "[Supreme Court] properly determined that the record did not support [Plaintiff's] contention that Respondent denied him equal protection of the law."

* General Municipal Law 207-a(2) provides for a supplement equal to the  difference  between  the  amounts  received  under   his   allowance  or  pension  and  the  amount of his regular salary or   wages  to be added the disabled firefighter's retirement allowance to equate which supplement is discontinued the firefighter attaining the mandatory service retirement age applicable to   him.

consistent with the relevant provision of the Retirement and Social Security Law.

upon the firefighter attaining the mandatory service retirement age applicable to   him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04534.htm

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The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought

In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04648.htm

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:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04745.htm

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:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05627.htm

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.

A probationary employee is entitled to serve for a specified minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed

Plaintiff brought this CPLR Article 78 to review a determination of the New York City Department of Correction terminating Plaintiff from employment as a correction officer prior to the end of his probationary period. Supreme Court denied the Plaintiff's petition and dismissed the action, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all," citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520." In the words of the Appellate Division, "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

The Appellate Division's reference to "decisional law" points to significant exception to its statement that "... a probationary employee may be terminated without a hearing and without a statement of reasons....."

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The rationale underlying this exception, requiring "notice and hearing in the event a probationer is being terminated prior to the completion of his minimum probationary period, is that the individual is entitled to serve for a minimum period to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed.

Addressing the merits of Plaintiff's, the Appellate said he failed to demonstrate, or even adequately allege, that his employment was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04706.htm

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New York State's local government tax cap to remain at two percent for calendar 2020

Property tax levy growth for all counties, towns, fire districts, 44 cities and 10 villages having fiscal years that close on Dec. 31 will be capped at 2 percent for the 2020 fiscal year according to a statement released by New York State Comptroller Thomas P. DiNapoli dated July 11, 2019. 

The tax cap, which first applied to local governments in 2012, limits tax levy increases to the lesser of the rate of inflation or 2 percent with some exceptions, including a provision that allows municipalities to override the tax cap. During the 2014 through 2018 fiscal years, municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent.

For a list of allowable levy growth factors for all local governments, visit: https://www.osc.state.ny.us/localgov/realprop/pdf/inflation_allowablegrowthfactors.pdf