New York State vs. COVID-19 -- November 30, 2020 Update

On November 30, 2020Governor Andrew M. Cuomo again updated New Yorkers on the state's progress in the ongoing COVID-19 pandemic.

On November 30, 2020, Governor Andrew M. Cuomo today updated New Yorkers on the state's progress during the ongoing COVID-19 pandemic. 

"All the experts spoke about what was going to happen when we reach the fall—there's colder weather, more people are indoors and more people are now traveling. While there has been a change in behavior amongst the majority of people who understand and follow protocols, it's as critical as ever we continue our work and focus on preparing this state, and its residents, for winter," Governor Cuomo said. "We are already in the holiday season, and that is going to have a profound effect. It already has. It had an effect when people started to travel for the holiday season, when they started to travel for Thanksgiving, when students to go home, when people started to shop, and when they started to move around. Increased mobility and social activity equals increased viral infection rate. It is directly proportionate. And we talked about this before Thanksgiving, you are not just going into the Thanksgiving weekend, you're starting a 37-day holiday period. It's not a one- or two-day affair—it's going to be the entire holiday season. New Yorkers need to stay vigilant, wash their hands, wear masks, socially distance and follow the rules as we move through the next 37 days and beyond."     

The Governor noted that the positive testing rate in all focus areas under the state's Micro-Cluster strategy is 6.22 percent, and outside the focus zone areas is 4.02 percent. Within the focus areas, 37,632 test results were reported yesterday, yielding 2,341 positives. In the remainder of the state, not counting these focus areas, 111,342 test results were reported, yielding 4,478 positives. Full results for tests reported November 29, 2020, the day prior, the current 7-day rolling average, and last two weeks is below:  

STATEWIDE	11/8- 11/14 % Positive	11/15- 11/21 % Positive	Current 7-day rolling average	Day Prior (11/28) % Positive	Yesterday (11/29) % Positive
All focus area statewide % positive	4.81%	4.51%	5.38%	5.83%	6.22%
Statewide % positive with all focus areas included	2.86%	2.89%	3.71%	4.27%	4.57%
Statewide % positive without all focus areas included	2.47%	2.44%	3.19%	3.75%	4.02%

 

Micro-cluster zone 7-day average positivity rates for November 30, 2020, yesterday, the day before, last week, and the week prior is below:  

FOCUS ZONE	11/8- 11/14 % Positive	11/15- 11/21 % Positive	Day Prior 7-day Rolling Average	Yesterday 7-day Rolling Average	Current 7-day Rolling average
Erie orange-zone focus area % positive	7.22%	7.30%	7.14%	7.20%	7.43%
Erie Yellow-zone focus area % positive	5.34%	7.36%	6.81%	6.83%	6.61%
Niagara Yellow -zone focus area % positive	5.10%	4.44%	7.16%	7.35%	7.89%
Monroe Orange-zone focus area % positive	4.41%	4.17%	5.79%	6.59%	7.04%
Monroe Yellow-zone focus area % positive	5.95%	3.58%	4.90%	5.62%	6.44%
Onondaga Orange-zone focus area % positive	6.26%	5.34%	5.10%	6.13%	5.98%
Onondaga Yellow-zone focus area % positive	6.03%	4.50%	4.60%	5.09%	5.13%
Queens Kew Garden Hills/Forest Hills/Astoria yellow-zone focus area % positive	3.40%	3.40%	3.52%	3.61%	3.78%
Bronx East Yellow-zone focus area % positive	3.81%	3.52%	4.51%	4.47%	4.74%
Bronx West Yellow -zone focus area % positive	3.80%	4.70%	4.30%	4.64%	4.81%
Brooklyn Yellow-zone focus area % positive	3.92%	3.70%	5.32%	5.64%	5.73%
Rockland Yellow-zone focus area % positive	3.55%	3.39%	3.90%	3.94%	4.23%
Chemung Orange-zone focus area % positive	4.59%	4.71%	6.86%	6.46%	7.03%
Staten Island Orange-zone focus area % positive	5.24%	4.96%	4.73%	4.75%	5.09%
Staten Island Yellow-zone focus area % positive	3.75%	3.61%	3.94%	4.08%	4.18%
Tioga Yellow-zone focus area % positive	10.81%	5.60%	2.38%	3.10%	3.74%
Orange Middletown - Yellow-zone focus area % positive	3.81%	5.41%	3.56%	3.81%	4.78%
Orange Newburgh - Yellow-zone focus area % positive	8.07%	7.89%	8.85%	8.57%	7.76%
Manhattan-Washington Heights-Yellow-zone focus area % positive	3.23%	3.39%	3.12%	3.40%	3.73%
Nassau-Great Neck-Yellow-zone focus area % positive	3.69%	3.69%	3.01%	3.93%	4.34%
Nassau Massapequa Park -Yellow-zone focus area % positive	4.64%	4.15%	4.76%	5.12%	5.54%
Suffolk-Hampton Bays-Yellow-zone focus area % positive	9.26%	5.69%	6.28%	7.00%	6.68%
Suffolk-Riverhead-Yellow-zone focus area % positive	4.80%	4.85%	3.37%	3.49%	2.87%
Westchester Peekskill - Yellow-zone focus area % positive	10.36%	7.15%	6.14%	7.23%	8.43%
Westchester Ossining - Yellow-zone focus area % positive	9.88%	10.22%	9.97%	9.96%	10.65%
Westchester Tarrytown/Sleepy Hollow - Yellow-zone focus area % positive	8.47%	8.27%	7.37%	7.05%	6.38%
Westchester Yonkers - Yellow-zone focus area % positive	4.48%	4.11%	4.95%	4.84%	5.03%
Westchester New Rochelle - Yellow-zone focus area % positive	6.46%	5.68%	5.04%	5.44%	6.19%
Westchester Port Chester Orange-zone focus area % positive	9.34%	7.59%	7.34%	7.21%	7.91%

 

November 30, 2020's data is summarized below:  

Patient Hospitalization - 3,532 (+160)

Patients Newly Admitted - 457

Hospital Counties - 54

Number ICU - 681 (+14)

Number ICU with Intubation - 325 (-1)

Total Discharges - 85,556 (+269)

Deaths - 54

Total Deaths - 26,747

   

Each region's percentage of positive test results reported over the previous three days is as follows:

REGION	FRIDAY	SATURDAY	SUNDAY	CURRENT 7-DAY AVERAGE
Capital Region	3.4%	3.4%	3.7%	3.24%
Central New York	8.4%	6.9%	4.2%	4.79%
Finger Lakes	6.6%	6.6%	6.6%	5.76%
Long Island	3.4%	4.1%	4.5%	3.76%
Mid-Hudson	4.8%	4.9%	5.1%	4.55%
Mohawk Valley	4.7%	5.1%	4.6%	4.42%
New York City	2.9%	3.4%	3.9%	2.92%
North Country	3.1%	2.4%	3.0%	2.80%
Southern Tier	4.4%	4.1%	3.8%	2.11%
Western New York	7.4%	7.2%	7.4%	6.94%

 

Each New York City borough's percentage of positive test results reported over the previous three days is as follows:

BOROUGH	FRIDAY	SATURDAY	SUNDAY	CURRENT 7-DAY AVERAGE
Bronx	4.1%	4.1%	4.7%	3.97%
Brooklyn	2.9%	2.9%	3.5%	2.72%
Manhattan	2.2%	2.7%	3.1%	1.94%
Queens	3.1%	3.5%	4.2%	3.24%
Staten Island	3.8%	5.1%	5.8%	4.39%

 

Of the 647,980 total individuals who tested positive for the virus, the geographic breakdown is as follows:

County	Total Positive	New Positive
Albany	5,816	104
Allegany	1,042	23
Broome	5,367	59
Cattaraugus	1,135	21
Cayuga	890	21
Chautauqua	1,580	18
Chemung	3,087	39
Chenango	643	4
Clinton	461	2
Columbia	1,027	7
Cortland	1,061	17
Delaware	363	4
Dutchess	7,284	87
Erie	25,427	485
Essex	286	1
Franklin	266	0
Fulton	508	13
Genesee	1,028	31
Greene	695	7
Hamilton	46	1
Herkimer	709	18
Jefferson	566	15
Lewis	368	8
Livingston	714	14
Madison	951	7
Monroe	15,660	522
Montgomery	494	10
Nassau	60,701	520
Niagara	3,874	106
NYC	311,979	2,504
Oneida	4,970	109
Onondaga	10,804	103
Ontario	1,326	22
Orange	16,891	90
Orleans	630	7
Oswego	1,625	54
Otsego	632	14
Putnam	2,844	55
Rensselaer	1,746	26
Rockland	21,632	130
Saratoga	2,293	48
Schenectady	2,481	38
Schoharie	197	1
Schuyler	316	2
Seneca	309	14
St. Lawrence	850	28
Steuben	1,797	26
Suffolk	61,072	658
Sullivan	2,202	11
Tioga	1,149	17
Tompkins	1,118	13
Ulster	3,381	56
Warren	583	6
Washington	452	3
Wayne	1,148	21
Westchester	50,693	583
Wyoming	546	13
Yates	265	3

 

On November 29, 2020, 54 New Yorkers died due to COVID-19 in New York State, bringing the total to 26,747. A geographic breakdown is as follows, by county of residence:

Deaths by County of Residence
County	New Deaths
Albany	1
Bronx	6
Broome	2
Chemung	7
Columbia	1
Dutchess	1
Erie	10
Kings	4
Manhattan	2
Monroe	1
Nassau	1
Oneida	1
Onondaga	1
Orange	1
Rockland	1
Saratoga	1
St. Lawrence	1
Suffolk	4
Tioga	2
Ulster	1
Wayne	1
Westchester	1
Wyoming	2
Yates	1

 

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An arbitration award may not be confirmed by a court if it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation[Employer] appealed that portion of an arbitration award that ordered Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees' being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging the terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, based on the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine itself in the patient's room, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator reinstated the employees to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal is dismissed as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis is on the award itself." Accordingly, a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns," quoting from New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d at 327.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, OMIG notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting the claim to back salary.

* The three Employees involved were two registered nurses and a nurse aide

**Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Unlawful discrimination complaint dismissed as merely setting out legal conclusions concerning acts alleged to constitute unlawful discrimination

Absent setting out sufficient allegations of unlawful discriminatory acts in the CPLR Article 78 complaint, a petitioner's claim of unlawful discrimination will not survive the defendant's motion to dismiss  

The petitioner [Plaintiff] in this action contended that such acts as her supervisor's adjusting her time card to reflect a late arrival at work, telling Plaintiff that as a probationary employee she could be terminated at any moment and giving the Plaintiff a negative performance review were due to her disability.

Supreme Court granted the defendants-respondents' [Defendants] motion to dismiss Plaintiff Article 78 complaint alleging her employer's hostile work environment as not viable within the meaning of the New York City Human Rights Laws. Supreme Court held that Plaintiff's examples "were not sufficient allegations of discriminatory acts."

Plaintiff appealed the Supreme Court's decision. The Appellate Division unanimously affirmed the lower court's ruling.

Citing Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, the Appellate Division opined that Plaintiff's complaint failed to state a cause of action for hostile work environment under New York City's City Human Rights Law* because it does not allege that Defendants' actions occurred under circumstances that gave rise to an inference of discrimination.

Further, said the court, Plaintiff's complaint did not allege facts that would establish that she was treated less well than similarly situated probationary employees because of her disability. Rather, said the court, Plaintiff's complaint merely "asserts the legal conclusions that the  [Defendants'] actions ... were due to her disability."

In the words of the Appellate Division, "Absent sufficient allegations of discriminatory acts, plaintiff's claim against [the individually named] defendant cannot be sustained pursuant to the City Human Rights Law and was properly dismissed by the Supreme Court."

* See Administrative Code of City of New York §8-107.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06976.htm