Court holds a video of the event, together with the testimony given at his disciplinary hearing, was substantial evidence that the Petitioner was guilty of misconduct

A former New York City police officer [Petitioner] appealed his dismissal from his position with the New York City Police Department [Department] after a disciplinary hearing in which the hearing officer found that Petitioner wrongfully took money in the course of a police operation, concealed his actions from his fellow officers, and then twice made false statements in the course of an investigation into the incident.

The Appellate Division unanimously confirmed the Department's decision and dismissed Plaintiff's petition. The court noted that the Department's determination that Petitioner was guilty of misconduct was supported by substantial evidence as, in addition to video evidence of the incident, Petitioner's own testimony established that he took money and pocketed it during the course of a police operation and then failed to give the money to the arresting officer at the scene.

As the arresting officer had testified that Petitioner never subsequently gave the money in question to him, the Appellate Division said that the Department  "rationally concluded that [Petitioner's] actions as depicted on video, including turning away from the other officers while he pocketed the money, were inconsistent with [Petitioner's  claim he was attempting] merely to safeguard the money."

In addition, the court opined that the Department also rationally concluded that Petitioner's other explanations for his actions were not credible.

Addressing Petitioner's contention that the Department was bias against him, the Appellate Division explained that this argument was unavailing "in the absence of any proof that the outcome of the proceeding flowed from the alleged bias."

The court concluded that, under the circumstances, the dismissal of Petitioner from his employment with the Department did not shock its judicial conscience, citing Matter of Kelly v Safir, 96 NY2d 32, among other decisions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03472.htm

Filing a claim for workers' compensation benefits death benefits in cases where the cause of death was suicide

An employee [Decedent] sustained a work-related injury to his head and his claim for workers' compensation benefits was thereafter established. Subsequently his family feared that Decedent had attempted suicide and had him hospitalized. Discharged from the hospital, Decedent died by suicide five days later.

Decedent's surviving spouse [Petitioner] filed a claim for workers' compensation death benefits. After conducting a hearing, a Workers' Compensation Law Judge [WCLJ] granted the claim. The Workers' Compensation Board [Board] affirmed the WCLJ's findings and determination. The Appointing Authority, and its third-party administrator [hereinafter collectively [Employer] appealed the Board's decision.

Initially addressing a procedural issue, the Appellate Division rejected the Employer's contention that the Board violated Workers' Compensation Law §23 when it adopted the findings of the WCLJ without a statement setting forth the facts upon which it had relied*.

Turning to the merits of Employer's appeal, the court, citing Matter of Delacruz v Incorporated Vil. of Freeport, 175 AD3d 1739, noted that "[i]t is well settled that workers' compensation death benefits may not be awarded 'when the injury has been solely occasioned ... by wil[l]ful intention of the injured employee to bring about the injury or death of himself [or herself].'" Further, opined the Appellate Division, "[W]orkers' compensation death benefits may be awarded for a suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury."

In Workers' Compensation claims cases involving a suicide the Appellate Division said that the rule is that "the causal relationship between an industrial accident and a resulting mental condition need not be direct and immediate. It is sufficient that the industrial accident is a contributing cause, even if it precipitated [the] decedent's preexisting mental condition."

Finding that the Board's determination that Decedent's suicide was causally related to his work injury was supported by substantial evidence, the Appellate Division said it would not disturb the Board's determination.

* §23 of the Workers' Compensation Law provides that Board decisions shall include "a statement of the facts which formed the basis of its action on the issues raised."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04222.htm

Appeal to the Commissioner of Education dismissed where Petitioner initiated litigation raising substantially similar claims and seeks substantially similar relief

Interim Commissioner of Education Shannon Tahoe* dismissed Petitioner's appeal challenging the  Board of Education's appointing a new Superintendent founded on allegations that the Board violated certain of its own policies in appointing the Superintendent. Without addressing the merits of Petitioner's appeal, the Commissioner dismissed the appeal "given the pendency of a related civil action."

Commissioner Tahoe explained that Petitioner commenced an action in Supreme Court, Westchester County raising substantially similar claims, and seeking substantially similar relief, as in the instant appeal.** In the civil action, Petitioner asked the court, among other things, to [1] vacated the Board's appointment of a new superintendent and [2] compel the Board to follow its own policies and procedures in the appointment of a new superintendent.

Citing Appeal of Moriarty, 57 Ed Dept Rep, Decision No. 17,265, among other decisions of the Commissioner of Education, Commissioner Tahoe said "Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that [P]etitioner has elected to raise in Supreme Court, particularly where she seeks the same relief that she seeks in this proceeding," and dismissed Petitioner's appeal.

* Commissioner Tahoe has submitted her resignation as interim Commissioner, to take effect August 13, 2020, to the Board of Regents.

** See Minaya v. City School District of New Rochelle., et. al., Index. No. 67873/2019, filed Oct. 26, 2019.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume60/d17879