The exhaustion of administrative remedies is a prerequisite to initiating a judicial challenge to a final administrative decision

Petitioner [Facility] in this CPLR Article 78 action to review a determination by the New York State Department of Health's Office of the Medicaid Inspector General [OMIG] appealed the order and judgment of Supreme Court dismissing Plaintiff's Article 78 petition.

OMIG had issued its final audit report of an assisted living facility's [Facility] Assisted Living Program applications for Medicaid reimbursement and commenced efforts to recover alleged over-payments made to Facility. 

Facility requested an administrative hearing to challenge OMIG's audit report's findings. On the same day Facility initiated a CPLR Article 78 proceeding contending that OMIG's report "was affected by an error of law and was arbitrary, capricious, and an abuse of discretion" in an effort to obtain a court order annulling OMIG's final audit report and obtain certain other judicial relief. OMIG then cross-moved to dismiss Facility's Article 78 petition, arguing that Facility had failed to exhaust its administrative remedies before seeking judicial intervention. 

Supreme Court granted OMIG's cross motion to dismiss the Facility's petition and Facility appealed that ruling.

The Appellate Division sustained the Supreme Court's holding that Facility was required to exhaust its administrative remedies before commencing its Article 78 special proceeding. The court opined that "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate [its  objection] in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.*

Addressing Facility's contention that it had raised a constitutional challenge alleging that OMIG exceeded its authority and violated Article III, §1, of the New York State Constitution in arriving at its ruling, the Appellate Division explained that "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established." Further, said the Court, "... the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief."

Noting that Facility's constitutional claim hinged on factual issues concerning OMIG reaching its determination, the Appellate Division opined that such issues "must first be addressed in an administrative proceeding."

The Appellate Division also said it agreed with the Supreme Court's finding that Facility "failed to demonstrate that resort to an administrative appeal would be futile or that it would suffer irreparable injury based upon its conclusory claim of financial distress" and affirmed the lower court's order granting OMIG's motion to dismiss Facility's petition for failure to exhaust administrative remedies.

* The Appellate Division, however, also noted that "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" citing see Town of Oyster Bay v Kirkland, 81 AD3d 812.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07054.htm.

 

An appointing authority may not require an employee to perform "out-of-title" work except in an emergency

The Watertown Professional Firefighters' Association, Local 191 [Association] commenced this CPLR Article 78 proceeding, later converted into a declaratory judgment action, seeking a court order prohibiting the City of Watertown [City] from [1] assigning a fire captain to perform municipal training officer (MTO) duties and [2] assigning  firefighters to ride in the right front seat of the fire department's rescue vehicle and to perform certain duties alleged to those of captain.

The Association contended that both such assignments constituted out-of-title work in violation of Civil Service Law §61(2).* 

Supreme Court's ruled that:

1. The appointing authority may not designate a firefighter to serve as an "acting captain" except in legitimate emergency situations; and

2. The appointing authority may appoint a fire captain to perform "municipal training officer duties."

In the appeal that followed, the Appellate Division said it agreed with the Supreme Court's rulings that the fire captain was not assigned out-of-title work with respect to being assigned MTO duties and that the City was prohibited from appointing firefighters to acting captain positions except in legitimate emergency situations.

The Appellate Division, however, noted that Supreme Court "failed to declare the rights of the parties with respect to the MTO duties performed by the fire captain." Citing Skalyo v Laurel Park Condominium Bd. of Mgrs., 147 AD3d 1358, the Appellate Division modified the lower court's decision by "making the requisite declaration."

* §61(2) of the Civil Service Law provides as follows: No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06898.htm

 

The authority of a governor of New York State to grant individuals reprieves, commutations and pardons

On October 16, 2018, New York Governor Andrew M. Cuomo signed into law as Chapter 374 of the Laws of 2018 a bill permitting the "people" of New York State to pursue state charges against individuals who were "accused of federal crimes and receive a presidential pardon."*

With respect New York State governors issuing a "state pardon or reprieve," Article IV, §4 of New York State's Constitution provides that the "governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

Clearly this power to pardon for offenses other than for treason and in cases of impeachment is not available to a sitting governor to grant in anticipation of an individual's being convicted of an offense at some date in the future in contrast to being available to a sitting governor after the individual has been convicted of the offense alleged or in the event the individual entered a plea of guilty to the offense alleged in open court.**

May a governor pardon himself or herself for an offense? 

If a governor were to attempt to do so it appears that in so doing he or she has created a "Catch 22" type situation -- a dilemma from which there is no escape because of mutually conflicting or dependent conditions -- made famous in author Joseph Heller's novel Catch-22.

Assuming, but not conceding, that a governor of New York State could pardon or reprieve himself or herself for an alleged offense, he or she could only do so after having been tried and convicted of the offense or had entered a plea of guilty of the offense before or in the course of a trial in the normal course of providing him or her with due process of law.

However, §30.1(e) of New York State's Public Officers Law provides, in pertinent part, that "Every office shall be vacant upon the incumbent's conviction of a felony, or a crime involving a violation of his oath of office."

As any person eligible for an Article IV, §4 pardon or reprieve is so eligible only by reason of his or her conviction or admission of being guilty of a qualifying offense, an effort by a governor to pardon or grant a reprieve to anyone, including himself or herself, following his or her conviction, or his or her entry of a plea of guilty of the alleged offense, may find himself or herself trapped in a "Catch 22" situation in the event his or her conviction or guilty plea of the offense charged results in his or her automatic "removal from office" pursuant to Public Officers Law §30.1(e) and thus his or her forfeiting any and all authority to grant a pardon or reprieve.

On the other hand, should an individual be found not guilty of the alleged offense, there appears to be no basis, or indeed reason, for a governor to issue a pardon or reprieve under the circumstances as the individual is not exposure to an action "by the people" for the same offense in the future as New York State's Criminal Procedure Law §40.20.1 provides that "A person may not be twice prosecuted for the same offense."

In any event, a pardon or reprieve by a governor is in the nature of "neutralizing a conviction for an offense" by the then sitting governor granted to an individual earlier found guilty of committing an offense in contrast to a sitting governor's effort to neutralize the conviction of an individual found guilty of an offense after such governor has left office.

* New York State's Penal Law was amended by adding a new section, §40.51, authorizing the prosecution of individuals "by the people" of New York State in the event an individual was "granted a reprieve, pardon or other form clemency" by the President of the United States for an offense pursuant to the provisions of §2 of Article II of the United States Constitution "when certain conditions are met" by deeming any federal prosecution of the individual not to have occurred.

** See Depamphilis v Kelly, 107 AD3d 611. A plea of guilty to the offense entered in open court is deemed to be a conviction of the offense.

 

An erroneous statement by a public employee typically does not constitute misconduct sufficient to warrant applying the doctrine of estoppel

Citing 8 NYCRR 279.4(a), the New York State Education Department's Office of State Review [OSR] dismissed the appeal submitted by a party [Plaintiff] unhappy with the decision of the impartial hearing on the ground that the appeal  was untimely filed.

8 NYCRR 279.4(a) provides that a party electing to appeal the hearing officer decision must file the appeal within 40 days of the date on which the hearing officer's decision was issued.*

In a proceeding pursuant to CPLR Article 4 [Special Proceedings] and Education Law §4404(3),** Plaintiff conceded that his appeal was untimely but his lateness  should be excused because an OSR employee gave him "erroneous advice" resulting in his serving his request for review 43 days after the hearing officer's decision was issued.

Supreme Court denied the Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling to the Appellate Division, contending that as erroneous advice from an employee of the OSR was the cause of his filing an untimely appeal, his late filing of his appeal should be excuse under color of the Doctrine of Estoppel.

Citing Bender v New York City Health and Hospitals Corp., 38 NY2d 662, the Appellate Division explained that the Doctrine of Estoppel "is only applicable to a government agency when the agency acts or comports itself wrongfully or negligently, inducing reliance by a party who changes his or her position to his or her detriment or prejudice."

The court opined that the alleged erroneous statement made by the OSR employee does not constitute misconduct sufficient to warrant applying the doctrine of estoppel as only "a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon, will justify the imposition of estoppel" on a government entity.

The Appellate Division then affirmed Supreme Court's ruling, with costs.

* 8NYCRR 279.4 provides that "[a]party seeking review (petitioner) shall personally serve a notice of request for review and a request for review upon the opposing party (respondent), within 40 days after the date of the decision of the impartial hearing officer sought to be reviewed."

** Education Law §4404(3) provides for the review of the determination of a state review officer in matters concerning children with disabilities.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06530.htm

 

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