Absences during an employee's probationary period typically extends the employee's probationary period for an equivalent period of time

Section 5.28[b] of the Personnel Rules and Regulations of the City of New York (PRR §5.28[b])  provides that a probationary employee's probationary period is to be "extended by the number of days [the employee did] not perform the duties of the position."

An individual  [Plaintiff] serving an 18 month probationary period filed a CPLR Article 78 petition challenging the decision of the New York City Administration for Children's Services [ACS] to extend her probationary period pursuant to PRR §5.28[b] "by the number of days [she did] not perform the duties of the position" in consideration of her absences charged to her annual leave credits or her sick leave credits or her absences when "she on leave without pay" during her probationary period.

Supreme Court granted Plaintiff's Article 78 petition seeking a court order annulling the ACS's determination terminating Plaintiff's employment and directed ACS to reinstate Plaintiff to her former position of Child Protective Specialist [CPS] subject to her satisfactory completion of a six-month probationary period. 

The court also directed the ACS to provide "a reasonable accommodation for [Plaintiff's] disabling condition* subject to the usual agency rules and procedures" should the Plaintiff so request.

The Appellate Division unanimously reversed the Supreme Court's decision, on the law, denied Plaintiff's petition and dismissed the proceeding brought by Plaintiff against ACS pursuant to CPLR Article 78.

Citing Matter of Kaufman v Anker, 42 NY2d 835, the Appellate Division opined that "[b]ased upon the record presented, the [ACS'] determination that [Plaintiff] fell short of completing the probationary period was rational and not arbitrary or capricious or contrary to law."

Addressing Plaintiff's assertion that her "overtime days" should be counted in determining the completion of her 18 months probationary period, the court explained that although PRR §5.28[b] makes provision for extending a probationary period, day-for-day, for days on which the employee is absent from work, it contains "no provision for shortening the period, from 18 months to something less, for extra work days beyond the five standard days a week."

 The Appellate Division then observed that "existing case law has been hesitant to reduce the period of probationary service" for absences during a probationary period such as the probationer's serving on jury duty, referring the court's decision in Tomlinson v Ward, 110 AD2d 537.

The bottom line: The Appellate Division held that Plaintiff "never completed her probationary period and [consequently] she was not entitled to reinstatement to her former position".

The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during the required probationary period, that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent.** [see Mazur, 98 AD2d 974]. 

For example, 4 NYCRR 4.5(f),***a Rule adopted by the New York State Civil Service Commission pursuant to the authority set out in Civil Service Law §63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.” However, appointing authorities may be granted authority to waive a limited period of such absence consistent with the rules of the responsible civil service commission.

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 114 A.D.2d 78]. 

Also, in Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U); affirmed 51 AD3d 538, the court concluded that a probationary period is extended as the result 0f the employee's disciplinary suspension from his position for off duty misconduct.

In contrast, §§243.9 and 243.9-a of the New York State Military Law provides that a probationary employee called to military duty before completing his probationary period is deemed to have satisfactorily completed the required probationary period upon the employee's honorable discharge from such military duty.

* The Appellate Division's decision notes that Plaintiff "left ACS of her own accord to work at the City Clerk's office, during a time when ACS was still engaging in an interactive dialogue and attempting to accommodate her disability. The New York City Human Rights Law, said the court, " ... does not require the City to rehire an employee who voluntarily departed for employment elsewhere."

** See Matter of Mazur, 98 AD2d 974.

*** 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

The CPS decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06699.htm

 

Considering a plaintiff's request to extend the time to serve a notice of claim on a municipal entity and its officers and employees

A New York City Sanitation Department [DSNY] employee [Plaintiff] sustained injuries when he tripped and fell on a public sidewalk while working. A DSNY supervisor responded to the scene and promptly prepared an unusual occurrence report describing the location and circumstances of the line-of-duty injury. The supervisor's report included the statement that the Plaintiff "TRIPPED ON A RAISED PIECE OF SIDEWALK " [sic]. 

Plaintiff subsequently commenced a proceeding pursuant to General Municipal Law §50-e(5) seeking approval to serve a late notice of claim on the City of New York [City]. The City objected and Supreme Court denied the Plaintiff's petition. Plaintiff appealed the Supreme Court's ruling.

Although General Municipal Law §50-e.1(a) requires that a notice of claim be served on a public corporation as defined in the general construction law, or any officer, appointee or employee of such an entity, within ninety days after the claim arises,*  §50-e(5) also provides for a court's granting leave to serve a late notice of claim on a municipality or its officers and employees as a matter of the exercise of the court's discretion.

The Appellate Division reversed the Supreme Court's ruling, "on the facts and in the exercise of discretion, with costs," and granted Plaintiff's petition. The court explained that in determining whether to extend the time to serve a notice of claim, the court will consider, in particular:

1. Did the municipal entity receive actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter?;

2. Did the claimant have a reasonable excuse for the failure to timely serve a notice of claim?; and

3. Did the delay substantially prejudice the municipal entity in its defense on the merits?

In so doing the Appellate Division said that "the question of whether actual knowledge was timely acquired is considered to be the most important factor, citing Miskin v City of New York, 175 AD3d at 685. Further, said the court, a request for leave to serve a late notice of claim "is addressed to the sound discretion of the court ... keeping in mind that the statutory notice requirement is to be liberally construed."

Although the Appellate Division said it agreed with Supreme Court that Plaintiff "failed to proffer a reasonable excuse for his delay, since his claims of ignorance and lack of awareness of the severity of his injuries were not supported by any medical evidence and were patently insufficient," nevertheless the court opined that the lack of a valid excuse for the delay is not necessarily fatal to a petition for leave to serve a late notice of claim where other factors militate in favor of granting the petition, citing Williams v Nassau County Med. Ctr., 6 NY3d 531.

In the instant case the court concluded that "the balance of the statutory factors in this case warrants the granting of the petition," noting that a supervisor had prepared and filed an "unusual occurrence report" shortly after Plaintiff's accident which provided the City with "timely actual knowledge of the essential facts constituting the claim, since its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed."

Noting that Plaintiff had [a] satisfied his burden of presenting some evidence or plausible argument to support a finding of no substantial prejudice to the City in defending against Plaintiff's claim and the City [b] failed to rebut this showing with particularized evidence of substantial prejudice, the Appellate Division held that Supreme Court "improvidently exercised its discretion in denying [Plaintiff's] petition for leave to serve a late notice of claim."

* In wrongful death actions, however, the ninety day period to file a timely action begins running from the date of the appointment of a representative of the decedent's estate.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06776.htm

 

An impartial arbitrator or hearing officer is essential to providing administrative due process

Supreme Court vacated an arbitration award that had been made in the Employee's favor. The employee appealed Supreme Court's ruling. 

The Appellate Division unanimously affirmed the lower court's decision.

The Appellate Division opined that "clear and convincing evidence" supported Supreme Court's  finding of bias on the part of the arbitrator against the employer, the New York City Department of Education [DOE], concluding that such bias warranted vacating the arbitrator's award made in favor of the employee.

The Appellate Division noted that the arbitrator:

1. Made findings against DOE that were either entirely unsupported or directly refuted by the record;

2. Repeatedly interrupted DOE's examination of witnesses;

3. Repeatedly reminded witnesses that the employee's job was at stake;

4. Assisted the employee's counsel in cross-examining witnesses; and

5. Refused to permit DOE's counsel to make a record.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06959.htm

 

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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