New leave polices for employees of the State of New York as the employer issued

The New York State Department of Civil Service has announced the publication of the new Attendance and Leave Policy Bulletins listed below: 

Policy Bulletin 2022-04, World University Games – Paid Leave for Volunteers 

Policy Bulletin 2022-05, Implementation of the Productivity Enhancement Program for 2023 

If you wish to print Policy Bulletin 2022-04, a version in PDF format is available at: https://www.cs.ny.gov/attendance_leave/pb2022-04.pdf 

If you wish to print Policy Bulletin 2022-05, a version in PDF format is available at:https://www.cs.ny.gov/attendance_leave/PEP2023_Combined.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

Procedural errors and omissions result dismissial of the action without addressing the merit of the complaint

Supreme Court denied Plaintiff's amended petition seeking a court order annulling her former employer's denial of her request to withdraw her resignation and dismissed the proceeding brought pursuant to CPLR Article 78. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division explained Plaintiff had attempted to file an "amended" Article 78 petition two years after filing her initial petition without first obtaining a "leave to amend" was improper.

Further, said the court, Plaintiff's was petition untimely, as she "failed to file it within four months of the employer's decision to deny her request to withdraw her resignation.

Significantly, the Appellate Division noted the Plaintiff's claim that her initial filing tolled the statute of limitations was unavailing "because the time to commence an Article 78 proceeding is not extended by her eventual pursuit of administrative remedies," citing Matter of Mendez v New York City Dept. of Educ., 128 AD3d 584.

Noting the decision in Sumner v Hogan, 73 AD3d 618, the Appellate Division opined that Plaintiff's petition also failed because she did not exhaust her administrative remedies prior to initiating her Article 78 proceeding as required by the relevant collective bargaining agreement. 

Click HEREto access the text of the Appellate Division's decision.

Seeking a court order to annul discontinuation of educator's employment during the probationary period

Probationary educator's [Probationer] Article 78 challenging to the Department of Education of the City of New York [DOE] decision to discontinue her employment prior to the end of her probationary employment was dismissed  by Supreme Court. Probationer appealed but the Appellate Division affirmed the lower court's decision. The court explained that Probationer "failed to show that her termination was for a constitutionally impermissible purpose, in violation of a statute, or done in bad faith."

In contrast, opined the Appellate Division, there was ample evidence in the record indicated that the DOE's decision to discontinue Probationer's employment "was made in good faith, as her yearly Measures of Teacher Practice scores reflected a lack of consistent improvement, despite receiving significant professional support."

The court also rejected Probationer's argument that DOE's had failed to obtain her signature on every written assessment made of Probationer's performance in the course of the review process. In the words of the Appellate Division, the failure of DOE to do so simply "constitutes a mere deficiency in the review process that does not require annulment of the decision to discontinue her employment".

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” 

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. 

Should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Click HEREto access the text of the Appellate Division's ruling.

 

Denial of an application for disability retirement benefits must be supported by substantial evidence

In Matter of Kelly v DiNapoli, 30 NY3d 674, the Court of Appeals held that "For the purpose of Retirement and Social Security Law, the applicant bears the burden of establishing that the disability was the result of an accident, which is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact". This standard requires an applicant for accidental disability retirement benefits to "demonstrate that [the] injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in [the individual's] ordinary job duties"

Petitioner in this Article 78 action, an administrative law judge [ALJ] for the Department of Corrections and Community Supervision, sustained injuries when she was leaving a hearing room and was hit on her left leg by a very heavy, self-closing, security door.

Following a hearing on the ALJ's application for accidental disability retirement benefits, the Hearing Officer denied the application, finding that the ALJ did not meet her burden of establishing that the incident constituted an accident within the meaning of Retirement and Social Security Law § 605. The Comptroller sustained the hearing officer's findings and decision and the ALJ appealed.

The Appellate Division disagreed. In its view, the incident as described by the ALJ constituted an accident. The court said that "Although [the ALJ] was aware of the hazard posed by the heavy, self-closing door, she reasonably expected that the supervisor, who was holding the door open, would continue to do so as [the ALJ] walked through."

Thus, said the Appellate Division, the ALJ demonstrated that her injuries were caused by a "sudden [and] unexpected" precipitating event — the supervisor letting go of the heavy, self-closing door while the ALJ walked through it — which was not a risk inherent in her job duties.

The court distinguished the facts in this case from a situation in which it determined that strong wind blowing shut a heavy, self-closing door and injuring the applicant for accidental disability retirement benefits did not constitute an accident, citing Matter of Rizzo v DiNapoli, 201 AD3d at 1100.* The Appellate Division opined that "a distinction must be drawn between a naturally occurring event such as wind" and the instant case in which the ALJ had a reasonable expectation that the supervisor would not release the door until she was safely through.

Accordingly, the Appellate Division concluded that the Comptroller's determination is not supported by substantial evidence.

Click HEREto access the text of the Appellate Division's decision.

* Matter of Rizzo v DiNapoli, 2022 NY Slip Op 06027, posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_06027.htm, in which the Court of Appeals held "Substantial evidence supports the determination that the precipitating cause of petitioner's injuries was not an accident." 

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Challenging the results of a union election of its officers

Citing Palladino v CNY Centro, Inc., 23 NY3d 140, the Appellate Division noted that "the law is well settled" that suits for breaches of agreements or for tortious wrongs against officers of unincorporated associations, including unions, are limited to situations in which "the individual liability of every single member can be alleged and proven".

The court then sustained Supreme Court's granting Local 461, District Council 37's motion to dismiss the Plaintiffs' amended petition seeking to annul a 2021 election of the Local's officers and that the court direct that new elections be conducted.

The Appellate Division explained that the Plaintiffs' petition, which interposed claims alleging breach of contract and violation of the common law of elections in New York, failed to plead "that each individual union member authorized or ratified the [allegedly] unlawful actions," citing Charter Communications, Inc. v Local Union No. 3, 166 AD3d 468.

Click HEREto access the Appellate Division's ruling.