Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

New York State's Student Intern Program exposes next generation of leaders to careers in public service

The New York State Department of Civil Service announced more than 250 new student internship opportunities currently available for the upcoming fall semester throughout New York State government and reminded students to apply prior to the September 13, 2019 application deadline. Internships are available across a wide array of State agencies and include opportunities in human services, environmental conservation, criminal justice, health care, and engineering.

The Department of Civil Service has created a one-stop website – www.nysinternships.cs.ny.gov– that allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation.

A list of available internships for the fall 2019 Session is available by visiting:

  www.nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm.

“Under Governor Cuomo’s leadership, New York State is attracting and developing our future leaders in State government and providing them with valuable skills and hands-on experience that will assist them as they step out into the workplace,” said Lola W. Brabham, Acting Commissioner of the New York State Department of Civil Service. “Today and every day, let us thank our student interns for their valuable contributions to State government and their efforts in building a better and stronger New York for all.”

The Student Intern Program is part of Governor Cuomo’s New New York Leaders Initiative, which focuses on attracting new and highly-skilled individuals to State government through both internship and fellowship programs. Through this program, students are exposed to the work of governing, while gaining valuable hands-on experience serving the people and interacting with government leaders and policy-makers.

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Each intern works in a particular area within an Executive Branch agency or department.

Opportunities include both paid and unpaid positions. Academic credit may be given for internships depending on the policy of the intern’s educational institution.

Featured internships for the fall 2019 session include:

Classification & Compensation Intern (Department of Civil Service – Albany): As part of the Department’s Division of Classification and Compensation, interns will gain an exposure to human resource management, division operations, and how budget considerations affect agency operations. Intern duties will consist of a range of activities that include position classification and reclassification, title allocation and reallocation, preparation of Classification Standards, review and analysis of requests for salary differentials, and occupational studies.

Accounting & Investigative Intern (Gaming Commission – New York City): Student interns will work within the Office of the Gaming Inspector General and will assist staff with investigations of allegations of corruption, fraud, criminal activity or abuse in the Commission. Interns will be exposed to a number of different experiences, including attending public meetings, participating in interviews, and preparing data analysis and/or memoranda.

Social Work Intern (Office of Children and Family Services - Rensselaer): Working within the Bureau of Behavioral Health Science, the student intern will learn how to process applications for Medicaid waiver services, and receive supervision to develop a short-term wellness program for staff. In addition, the intern will learn about the process of assessing and treating youth with mental health diagnoses.

Program Services Intern (Department of Corrections and Community Supervision – Gowanda): Student interns will assist staff in completing initial assessments, risk assessments, and participate in the development of treatment plans for inmate clients. In addition, interns will become familiarized with the Criminal Justice System, from courts, to incarceration and release to the community. They will also develop clinical skills and professionalism, while maintaining ethical standards in the field.

N.B. Students Must Apply by September 13, 2019

If a party objects to arbitrating a provision in a Taylor Law collective bargaining agreement courts will require a showing that it is lawful to arbitrate the dispute and that the parties agreed to arbitrate such a dispute

About three months after collective bargaining agreement [CBA] between the School District[District] and the Employee Organization [Local 811] had expired the parties entered into a memorandum of agreement that extended the CBA, with certain modifications, through 2020. These modification included changes with respect to  employee prescription drug benefits. Local 811 subsequently filed a grievance with the District challenging the change to the prescription drug coverage as applied to retirees.

The District denied the grievance, finding that [1] it was untimely; [2] Local 811 did not represent retirees;*and [3] there was nothing in the CBA prohibiting this change. When, ultimately, Local 811 demanded that the grievance be submitted to arbitration, the District initiated a CPLR Article 75 action seeking a court order to permanently stay arbitration.

Supreme Court found that the matter was arbitrable, dismissed the District's petition and the District appealed Supreme Court's ruling to the Appellate Division. The Appellate Division sustained the Supreme Court's ruling.

Explaining that the court's role in reviewing applications to stay arbitration is a limited one, the Appellate Division said that central inquiry is whether the dispute is arbitrable, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273. The Appellate Division then opined that to show that a CBA dispute is arbitrable requires proof that [a] it is lawful to arbitrate the dispute and [b] the parties have agreed to arbitrate such a dispute. In this action, however, the court said that the only question to resolve was [b] -- whether the parties agreed to arbitrate the dispute at issue.

To determine whether parties so agreed requires the court to examine the [CBA] to ascertain whether CBA contains a "broad arbitration clause," and if it does the court will find an "agreement" to arbitrate if "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." In contrast, specific contentions related to the scope of the CBA or interpretation of its substantive provisions are to be determined by an arbitrator.

In this instance the court found that the CBA's grievance procedure was intended to "establish a more harmonious and cooperative relationship between the non-instructional staff and [the District]" which, in this context said the Appellate Division, mandates that the CBA's provisions to be "liberally construed for the accomplishment of this purpose."

Further, the CBA broadly defines a grievance as "any claimed violation, misinterpretation, or inequitable application of [the CBA] or of any laws, rules, procedures, regulations, administrative order or work rules of the [individual designated by management to review and resolve grievances], or those matters affecting employees' health or safety, physical facilities, materials or equipment furnished to the employees or supervision of employees, or any other matter(s), in which the employee feels he [or she] has been dealt with unfairly." The CBA's grievance procedure provides, as the final step in the processing of a grievance, arbitration of the dispute.

Considering "the breadth of this language, lack of any exception for grievances concerning retirement benefits, and the CBA's provisions expressly addressing [prescription drug] coverage for retirees ..." the Appellate Division concluded that there was a reasonable relationship between the dispute and the subject matter of the CBA such that the dispute was arbitrable.

Although the District sought to read the terms "staff" and "employee" to narrow the ambit of the arbitration clause and specifically to exempt retirees from having the right to bring a grievance, the Appellate Division held that such a specific contention is not relevant to the threshold analysis of arbitrability but, instead, concerns the scope and substance of the CBA. Accordingly, the court ruled that the issue should be "determined by an arbitrator" rather than the court.

* Typically retirees are not in the collective bargaining negotiating unit but may be entitled to certain benefits set out in a collective bargaining agreement where specifically so provided.

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05619.htm

New York State's State Comptroller Thomas P. DiNapoli finds schools falling short on emergency planning

Schools are not doing enough to prepare for emergency situations like shootings, according to an audit of safety planning at 19 schools released on July 25, 2019 by New York State Comptroller Thomas P. DiNapoli.

Auditors found none of the schools met the minimum planning or training requirements of the State Education Department (SED), which oversees safety planning for schools. Alarmingly, two schools did not have district-wide safety plans even though plans were mandated nearly 20 years ago.

“New York’s schools must be better prepared for emergencies and violent incidents. My auditors looked at a sample of big and small schools in urban, suburban and rural settings. We found too many schools had gaps in their safety plans that could leave them unprepared if a shooting or life-threatening incident occurred,” DiNapoli said. “Helping our schools get strong safety plans in place will require more guidance and more resources from state policymakers. I urge the State Education Department to re-engage the NYS Safe Schools Task Force to make sure our children and school personnel are safe. Emergency planning must be a priority for all New York schools.”

This audit is part of DiNapoli’s initiative focused on educational issues. His auditors have completed three audits that examined safety planning at more than 40 school districts. The audits have found significant problems at schools, including no safety plans, plans filled with errors and plans not being shared with local law enforcement.

In New York, the Safe Schools Against Violence in Education (SAVE) Act, enacted in 2000, mandates training and instruction for preventing and responding to incidents of school violence and establishes a statewide uniform system for reporting violent incidents.

The SAVE Act also requires public school districts, charter schools and BOCES programs to develop comprehensive safety plans and building-level emergency response plans. SED regulations were developed to provide additional guidance and details on school safety planning requirements. The requirements outlined in the law and regulations do not apply to private schools.

For the audit released on July 25, 2019, DiNapoli’s auditors looked at safety planning efforts at 16 school districts and two charter schools from 2017 to 2018, and 2019 for one school district. 

These entities include: Argyle Central School District, Candor Central School District, Commack Union Free School District, East Meadow Union Free School District, Fayetteville-Manlius Central School District, Genesee Community Charter School, Green Tech High Charter School, Haverstraw-Stony Point Central School District, Hendrick Hudson Central School District, Indian River Central School District, Lancaster Central School District, Levittown Union Free School District, Longwood Central School District, Naples Central School District, Niagara Falls City School District, Port Chester-Rye Union Free School District, Schenectady City School District, Syracuse City School District, and Wappingers Central School District.

Auditors found:

Two schools did not have safety plans and 17 others had incomplete safety plans. None of the schools met all 19 minimum safety plan requirements.

Overall, half the safety plan requirements were met, but seven schools did not meet a majority of the requirements. For instance, most schools did not designate a chief emergency officer in their safety plans or identify duties for this critical position.

They also did not include specifics on how they would collaborate with state and local law enforcement officials.

Sixteen school boards did not adopt a safety plan within the time requirements, properly submit it to SED or give the public the opportunity for input. Thirteen schools did not hold a public hearing on the safety plan or offer a public comment period.

Eighteen schools either did not have a safety team or did not have all the required members.

No schools met all of the annual safety training requirements, yet they certified to SED that they trained staff.

Because of the sensitive nature of the findings, the Comptroller’s office will not publicly release school-specific details. However, it has released two confidential audits to each school district and SED: one on examining district-wide safety plans and one on building-level emergency response plans. Auditors made a series of general recommendations as part of the audit and specific recommendations in the confidential reports given to each school district.

School boards are required to seek public input on their safety plans, including holding a 30-day comment period and adopting safety plans by Sept. 1. The Comptroller encourages school boards to publicly discuss how they are addressing the audit findings as they prepare for the upcoming school year. By law, building-level emergency response plans are deemed confidential and details cannot be shared.

Although nine schools did not respond to the public audit, two schools suggested the formation of a communication platform to foster school safety communication and collaboration. See the audit for more commentary.

Read the audit, or go to:

https://www.osc.state.ny.us/localgov/audits/swr/2019/safe-schools/global-2019-ms-1.pdf

DiNapoli’s office has also probed the reporting of bullying, discrimination, harassment and violence at schools, which are often the underlying causes that can lead to major incidents if not addressed.

Prior school safety audits include:

Audit of State Education Department Oversight (released in April): https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18s34.pdf.

Audit of NYC Planning (released in June): https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18n2.pdf.

Defamatory statements made on "Facebook" and on another Internet website alleged by candidate for elective office

Plaintiff [Candidate], a County Officer* was running for elective office alleged that another county officer  [County Sheriff] running for the same elective office, made two defamatory statements concerning Candidate, one of which was published on Respondent's campaign Facebook site and a second published on another Internet website. Supreme Court denied Respondent's motion for summary judgment and, as relevant here, Respondent's motion seeking dismissal of the complaint with respect to the Facebook and Internet postings alleged by Candidate to be defamatory.

After addressing a number of procedural issues, the Appellate Division rejected Respondent's contention that he was "shielded from liability due to absolute immunity." Absolute immunity,** explained the court, protects government officials, such as Respondent, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties," citing Clark v McGee, 49 NY2d 613.

The court noted that Candidate could not maintain a defamation claim against the County Sheriff based upon statements "emanating from official reports and communications." Here, however, the Appellate Division said that the documentary evidence in the record established that the statements challenged by Candidate were not posted on the County Sheriff's official website but were posted on County Sheriff's campaign Facebook page and another Internet website. Under these circumstances, opined the Appellate Division, County Sheriff "cannot rely on absolute immunity" as a defense.

Turning to the Facebook posting, Candidate alleged that the Facebook posting stated, "this 'is' definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." The County Sheriff, in rebuttal argued that this Facebook posting was "nonactionable opinion because it was supported by facts and was in response to [Candidate's] attack on his credibility."

The Appellate Division disagreed, opining that "[t]he statement that [Candidate] was 'pilfering free gas from taxpayers' is 'susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior.'" Further, the court observed that "such statement also 'has a precise meaning that is capable of being proven true or false,'" and as such, "Supreme Court correctly concluded that this statement was actionable."

County Sheriff also contended that Candidate "failed to establish actual malice." On this point the Appellate Division, citing Kipper v NYP Holdings Co., Inc., 12 NY3d 348. said that "[a]s a public figure, [Candidate] must prove by clear and convincing evidence that [County Sheriff] made the alleged defamatory statements with actual malice — i.e., 'with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'"

Candidate's complaint, said the court, alleged that County Sheriff published the false statements and that the statements "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject [Candidate] to public contempt, ridicule, aversion, and disgrace." The Appellate Division said that in view of these allegations, as well as the specific statements at issue, it was satisfied that Candidate had sufficiently pleaded malice and that "under the circumstances of this case, discovery is necessary to allow [Candidate] to explore [County Sheriff's] knowledge and motivation for making the alleged defamatory statements.

* Although not all public employees are public officers, all public officers are public employees.

** In addition to a public officer or employee claiming "absolute immunity", under appropriate circumstances the individual might claim Sovereign Immunity, Qualified Immunity, Use Immunity, Transaction Immunity, Derivative Immunity or  Qualified Privilege in the course of litigation and, or, an administrative hearing. In addition, in Filarsky v. Delia, 132 S.Ct. 1657, the United States Supreme Court held that a private attorney retained by a public entity to assist in conducting an official investigation into potential wrong­doing was entitled to seek the protection of qualified immunity as the common law does not draw any distinction between a public employee and a private attorney in this regard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05733.htm

Candidate for election to a public office alleges he was the target of defamatory statements made on "Facebook" and on another Internet website by a competitor seeking election to the same office

Plaintiff [Candidate], a County Officer* was running for elective office alleged that another county officer  [County Sheriff] running for the same elective office, made two defamatory statements concerning Candidate, one of which was published on Respondent's campaign Facebook site and a second published on another Internet website. Supreme Court denied Respondent's motion for summary judgment and, as relevant here, Respondent's motion seeking dismissal of the complaint with respect to the Facebook and Internet postings alleged by Candidate to be defamatory.

After addressing a number of procedural issues, the Appellate Division rejected Respondent's contention that he was "shielded from liability due to absolute immunity." Absolute immunity,** explained the court, protects government officials, such as Respondent, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties," citing Clark v McGee, 49 NY2d 613.

The court noted that Candidate could not maintain a defamation claim against the County Sheriff based upon statements "emanating from official reports and communications." Here, however, the Appellate Division said that the documentary evidence in the record established that the statements challenged by Candidate were not posted on the County Sheriff's official website but were posted on County Sheriff's campaign Facebook page and another Internet website. Under these circumstances, opined the Appellate Division, County Sheriff "cannot rely on absolute immunity" as a defense.

Turning to the Facebook posting, Candidate alleged that the Facebook posting stated, "this 'is' definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." The County Sheriff, in rebuttal argued that this Facebook posting was "nonactionable opinion because it was supported by facts and was in response to [Candidate's] attack on his credibility."

The Appellate Division disagreed, opining that "[t]he statement that [Candidate] was 'pilfering free gas from taxpayers' is 'susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior.'" Further, the court observed that "such statement also 'has a precise meaning that is capable of being proven true or false,'" and as such, "Supreme Court correctly concluded that this statement was actionable."

County Sheriff also contended that Candidate "failed to establish actual malice." On this point the Appellate Division, citing Kipper v NYP Holdings Co., Inc., 12 NY3d 348. said that "[a]s a public figure, [Candidate] must prove by clear and convincing evidence that [County Sheriff] made the alleged defamatory statements with actual malice — i.e., 'with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'"

Candidate's complaint, said the court, alleged that County Sheriff published the false statements and that the statements "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject [Candidate] to public contempt, ridicule, aversion, and disgrace." The Appellate Division said that in view of these allegations, as well as the specific statements at issue, it was satisfied that Candidate had sufficiently pleaded malice and that "under the circumstances of this case, discovery is necessary to allow [Candidate] to explore [County Sheriff's] knowledge and motivation for making the alleged defamatory statements.

* Although not all public employees are public officers, all public officers are public employees.

** In addition to a public officer or employee claiming "absolute immunity", under appropriate circumstances the individual might claim Sovereign Immunity, Qualified Immunity, Use Immunity, Transaction Immunity, Derivative Immunity or  Qualified Privilege in the course of litigation and, or, an administrative hearing. In addition, in Filarsky v. Delia, 132 S.Ct. 1657, the United States Supreme Court held that a private attorney retained by a public entity to assist in conducting an official investigation into potential wrong­doing was entitled to seek the protection of qualified immunity as the common law does not draw any distinction between a public employee and a private attorney in this regard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05733.htm

Determining the appropriate "judicial scrutiny standard" when considering an application to vacate an arbitration award

In a proceeding brought by an employee [Plaintiff] pursuant to CPLR Article 75 seeking to vacate an arbitration award, Supreme Court granted that branch of the Plaintiff's petition that asked the court to vacate the disciplinary penalty of termination that had been imposed on him. The employer objected and filed an appeal with the Appellate Division.

The Appellate Division reversed the Supreme Court's ruling "on the law," with costs, reinstated the penalty of dismissal from the position imposed by the arbitrator and remitted the matter to the Supreme Court for the confirmation of the arbitration award pursuant to CPLR §7511(e).

Citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the court explained that the arbitration proceeding at issue, which was conducted pursuant to the parties' collective bargaining agreement, was consensual in nature and therefor subject to the limited scope of review established by CPLR §7511. Supreme Court, however, had applied the "closer judicial scrutiny standard" which was typically used by courts  reviewing an award that resulted from a compulsory arbitration process.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute, and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

Contrary to the Supreme Court's determination, the Appellate Division held that the penalty of termination from employment was not irrational, and the penalty, albeit harsh, did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power.

In an Education Law §3020-a disciplinary arbitration, an Educator was served with disciplinary charges of alleging the Educator was guilty certain misconduct. The  arbitrator sustained certain of the charges and specifications alleging  misconduct brought against the Educator and imposed the penalty of termination from his position. Educator appealed,* contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.** The Appellate Division sustained the arbitrator's ruling, pointing out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties. Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

Accordingly, the Appellate Division rejected Educator’s appeal, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

* See Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, affirmed 30 NY2d 889.

** In Matter of Berenhaus v Ward, 70 NY2d 436, the Court of Appeals held that when reviewing §3020-a compulsory arbitrations proceedings court  should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05548.htm