Adjudicating allegations of errors in the text of laws as printed in a legal resource, manual or publication

In this lawsuit the Court of Appeals, Justice Fahey dissenting in part, observed that for several consecutive years, the Plaintiffs bought the annual edition of a legal resource manual published and sold by the Defendant. 

The main issue in this appeal was whether Plaintiffs' complaint adequately pleaded a deceptive act or practice prohibited by General Business Law §349 [GBL §349] based on Defendant's alleged misrepresentations about the completeness of the laws reproduced in one section of its publication. 

Although Defendant's acts are consumer-oriented*, the Court of Appeals concluded that the Defendant's acts were not materially misleading. Contrary to Plaintiffs' argument, the court opined that "a consumer acting reasonably under the circumstances here would not have believed that [Defendant] represented that the section at issue, containing rent control statutes and regulations, was current and accurate for its one-year shelf life."

In sum, said the court, Plaintiffs' "cause of action is based on purchases of yearly editions of the [publication] under a sales agreement that charged extra for any updates of the year's materials contained in the corresponding edition."

Observing that Plaintiffs' allegations "were limited to omissions and inaccuracies in a section of the [publication] they knew was subject to legislative amendment, which they concede were corrected in the 2017 edition after the errors were brought to defendant's attention, and which were specifically contemplated by defendant's express disclaimer of the currentness of the [publication's] contents", the Court of Appeals concluded that "[under] the circumstances, plaintiffs, or any reasonable consumer, could not have been materially misled to believe that defendant guaranteed Part III of the [publication] was complete and accurate at any given time."

As the Plaintiffs failed to adequately plead this element, the Court of Appeals held that "their GBL §349 cause of action was properly dismissed."

* The alleged misrepresentations were contained in a manual that was then marketed to and available for purchase by consumers.

Click HERE to access the Court of Appeals' decision.

 

A plaintiff typically must initiate a Civil Service Law §75-b "whistle blower" cause of action within one year of the alleged act or omission

Civil Service Law §75-b, the so-called whistle-blowing statute, provides that "[a] public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee ... because the employee discloses to governmental body information:

(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or

(ii) which the employee reasonably believes to be true and reasonably believes constitutes [a violation of any federal, state or local law, rule or regulation]".

Further, in order to maintain a Civil Service Law §75-b cause of action, a plaintiff must commence the action "within one year after it accrues."

On April 8, 2013, a public employee [Plaintiff] commenced legal action against his public employer [Respondent] alleging that Respondent had terminated his employment in violation of Labor Law §740 in retaliation for his complaints of certain improprieties alleged to have occurred in his department in November 2009. Plaintiff subsequently amended his complaint to allege a violation of Civil Service Law75-b.

The Respondent moved for summary judgment dismissing the complaint. Supreme Court granted the Respondent's motion and Plaintiff appealed.

The Appellate Division order affirmed the Supreme Court's action, with costs, explaining:

1. Employee commenced this action on April 8, 2013, and, therefore, only the retaliatory acts that were alleged to have occurred on or after April 8, 2012, may be considered as timely.

Accordingly, said the court, the allegedly retaliatory acts which took place in 2009 and 2010 "were insufficient to establish a viable claim of a continuing violation" and, further, the continuing violation doctrine did not toll the running of the statute of limitations.

2. Civil Service Law §75-b(4) provides that nothing in the statute prohibits any "personnel action which otherwise would have been taken regardless of any disclosure of information."

Here, opined the Appellate Division, the Respondent "established its prima facie entitlement to summary judgment by showing that it terminated Employee for budgetary reasons and Employee "failed to raise a triable issue of fact."

Click HERE to access the Appellate Division's decision. 

 

Leave for Quarantine

The New York State Department of Civil Service has published Advisory Memorandum 2021-04, Attendance Rule 21.11 – Leave for Quarantine. 

The text of Advisory Memorandum 2021-04 is posted on the Internet at https://www.cs.ny.gov/attendance_leave/AdvMemo21-04.cfm.

If you wish to print Advisory Memorandum 2021-04, a version in PDF format is posted on the Internet at https://www.cs.ny.gov/attendance_leave/am21-04.pdf.

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit https://www.cs.ny.gov/attendance_leave/index.cfm.

N.B. Except as otherwise specified in a particular rule or regulation, the Rules and Regulations of the New York State Department Of Civil Service apply to incumbents of positions in the classified service of the State as the employer, a public authority, a public benefit corporation and an other entity for which the New York State Civil Service Law is administered by the New York State Department of Civil Service.