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Tuesday, October 21, 2014

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days
Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:

The decision in Alcarcon II is posted on the Internet at:

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Monday, October 20, 2014

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees
Bransten v State of New York, 117 AD3d 455
Retired Pub. Empls. Assn., Inc. v Cuomo, 2014 NY Slip Op 07044, Appellate Division, Third Department

In course of collective bargaining for Taylor Law agreements for the period 2011-2016, the State and several collective bargaining units representing State employees agreed to reductions in the State's employer contribution towards State employee health insurance premiums to avoid laying off State employees during the life of these several collective bargaining agreements.

As a result, the State's employer contributions towards State employee health insurance premiums were reduced by between 2% and 6% depending upon the State employee's salary grade. The President of the State Civil Service Commission adopted a regulation,* approved by the Director of the Budget, reducing the State’s employer contributions for State employees and for State employee who had retired before the effective date of these new collective bargaining agreements [pre-contract State retirees]. 

The Bransten v State of New York decision

In September 2011 the New York State Department of Civil Service notified sitting judges that the State would reduce its contributions for health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%. 

The Bransten court explained that the reduction in the State’s employer contribution to health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health care insurance.

However, the Bransten court said that the judiciary “had no power to negotiate with the State with respect to the decrease,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”

Accordingly, said the Appellate Division, the State’s motion to dismiss the Bransten action was properly denied by Supreme Court. 

The Retired Public Employees Association, Inc. [RPEA]  v Cuomo decision

The Retired Public Employees Association [RPEA] challenged the State's reduction of the percentage of its employer contribution towards health insurance premiums with respect to “pre-contract” State retirees, contending that:

 [1] Civil Service Law §167.1 sets out the ratio of employer contributions the State was required to make on behalf on these pre-contract State retirees and that provision was not amended to provide for a different ratio;

[2] The State’s effort to set out any different ratio of State's employer contributions made on behalf of  pre-contract State retirees by adopting a regulation, 4 NYCRR 73.3 [b], under color of §167.8, as amended, was a nullity; and

[3] The reason advanced by the State for reducing the State’s employer contributions towards employee health insurance premiums in the course of collective bargaining – to avoid layoffs – was irrelevant insofar as pre-contract State retirees were concerned as pre-contract State retirees are neither employees nor, as retired employees, subject to layoff from employment.

The Appellate Division, Third Department, however, ruled that Civil Service Law §167.8 “plainly and unambiguously" permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law §167(1)(a) by regulation" with respect to employees of the State and the pre-contract State retirees.

The court explained that: “Given the Legislature's expressed intent** to authorize a modification in the state's contribution rate towards retiree health insurance premiums under the circumstances present here, we conclude that [the State’s] actions in effectuating the reduced state contribution rates was both lawful and in compliance with the statute".

It then dismissed RPEA's complaint on the ground that the Complaint "failed to state a cause of action ... except that the John and Mary Does 1-2,000, current and retired Judges and Justices of the Unified Court System of the State of New York are dismissed from this action, without prejudice."***

As to the retired judges represented by RPEA in its action, it would appear that pre-contract State retirees are similarly situated as pre-contract State retirees have no power to negotiate with the State and they received no benefit from the no-layoffs promise because retirees are not employees subject to layoff pursuant to §§80 or 80-A of the Civil Service, which provisions address “Suspension or demotion upon the abolition or reduction of positions..”

* 4 NYCRR 73.3 [b].

** The SPONSORS MEMO in support of Senate S5846, which was enacted into law as Chapter 491 of the Laws of 2011, states that the purpose of the bill was “amend the civil service law and the state finance law, in relation to compensation and other terms and conditions of employment of certain state officers and employees.” With respect amendment to Civil Service Law § 167(8), the Sponsor’s memo stated that the purpose of the amendment is “to provide authority to modify the employer and employee shares of health premium and subscription costs under the New York State Health Insurance Plan [emphasis supplied].”

*** Retired State judges and retired State legislative personnel were among the pre-contract State retirees included in RPEA's action.

The Bransten decision is posted on the Internet at:

The RPEA decision is posted on the Internet at:


Friday, October 17, 2014

Off-duty misconduct

Off-duty misconduct
OATH Index No. 1460/14

A research assistant [RA] was served with charges that alleged he was guilty of off-duty misconduct that resulted in his arrest among other misdeeds.  .

The employer presented certificates of conviction, which proved that RA committed the crimes of assault, resisting arrest, intentional property damage and public intoxication. 

OATH Administrative Law Judge Kevin F. Casey found RA could be disciplined for such off-duty conduct, which fundamentally conflicted with the agency's mission. In determining whether a criminal conviction for off-duty activity constitutes employee misconduct, Judge Casey said that “this tribunal has also looked to whether there is a sufficient nexus between the underlying act and the employee’s position.”*

The ALR also found that RA failed to notify the agency of his arrest and conviction and was absent without leave.

Also in the record was evidence showing that RA violated an order of protection in April 2013 and used disrespectful language in an email to an agency attorney

Judge Casey recommended that the employer terminate RA from employment, which recommendation was adopted by the appointing authority.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer.

The decision is posted on the Internet at:


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Thursday, October 16, 2014

Volunteer ambulance organization is not a “state actor” for the purposes of the Fourteenth Amendment

Volunteer ambulance organization held not a “state actor” for the purposes of the Fourteenth Amendment
Grogan v. Blooming Grove Volunteer Ambulance Corps, USCA, 2nd Circuit, 13-656-cv

The Blooming Grove Volunteer Ambulance Corps [BGVAC], a private volunteer ambulance organization, submitted a motion in federal district court seeking summary judgment dismissing claims brought against it pursuant to 42 U.S.C. §1983 based on allegations that BCVAC had dismissed Lenore Grogan, one of its members, without a hearing.

Grogan alleged that various disciplinary charges levied against her by BGVAC, resulting in her suspension as an officer of BGVAC without a  hearing constituted “state action” and that such action violated her rights under the First and Fourteenth Amendments of the United States Constitution. The district court disagreed and granted BCVAC’s motion and dismissed Grogan’s complaint.

In her appeal to the Second Circuit Grogan contended that BGVAC was a “state actor” for the purposes of the Fourteenth Amendment as it had contracts with a municipality to provide emergency medical services. Accordingly, Grogan contended, BGVAC had violated her Constitutional rights when it issued disciplinary charges against her and then suspended her from the organization without a proper hearing.
Grogan claimed that BGVAC’s conduct amounts to state action because: (1) the services BGVAC provides — emergency medical care and general ambulance services — are “traditionally exclusive public functions” that the State has delegated to BGVAC; and (2) the extensive State regulation and oversight under which BGVAC operates, coupled with BGVAC’s performance of a “municipally assumed” statutory function, so “entwines” BGVAC with the State that its actions are fairly attributable to the State.

The Circuit Court disagreed, sustaining the District Court’s determination that BGVAC’s conduct did not constitute state action.

The court explained that “Because the United States Constitution regulates only the Government, not private parties,” Grogan, who alleges that her “constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.” To demonstrate state action, said the court, a plaintiff must establish both that the alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation is a person who may fairly be said to be a state actor.’”

In this instance, said the court, there are two elements to consider:  

1. Has Grogan satisfied the “public function” test by demonstrating that there a “close nexus” between the challenged action and the State by showing that the private entity has exercised powers that are traditionally the exclusive prerogative of the State; and

2. Is the private entity so entwined with governmental policies, or is government entwined in the management or control of the private entity.

The court said that the statute authorizing the municipality to contract with BGVAC, New York Town Law §198(10-f), imposes no duty, obligation, or responsibility on New York towns to provide emergency medical services. Instead, the statute is entirely permissive, declaring that “the town board may . . . provide an emergency medical service, a general ambulance service, or a combination of such services . . . and to that end may . . . [c]ontract with one or more . . . organizations” to provide such services.”

Because the New York statutory scheme does not place an affirmative responsibility on towns or municipalities to provide ambulance services, those services cannot be considered “public functions.”

The Circuit Court futher explained that “even if we were to assume that the provision of emergency medical care and ambulance services constitutes state action under the public function theory (which we do not), that conclusion would be of no assistance to Grogan because the gravamen of her claims deals not with the performance of those ambulance services but instead with BGVAC’s employment decision to charge and suspend her.”

Concluding that Grogan” failed to demonstrate a sufficiently close nexus between the State or Town governmental entities and the disciplinary actions taken against her,” BGVAC’s actions cannot be fairly attributed to the State or the Town and, as a result, BGVAC cannot be held liable under  §1983,” the judgment of the District Court was affirmed.

The decision is posted on the Internet at:

Wednesday, October 15, 2014

Withdrawal of a resignation

Withdrawal of a resignation
2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto* restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 

Tuesday, October 14, 2014

Appealing administrative decisions

Appealing administrative decisions
Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First Department

Typically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  

In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. Ward v City of Long Beach, [20 NY3d 1042. .

In contrast, if the matter was determined after an administrative hearing, should the petition before Supreme Court raise a question of whether an administrative determination was supported by substantial evidence the proceeding is to be transferred from the Supreme Court to the Appellate Division to address that issue [See §7804[g] of the Civil Practice Law and Rules.]

Where the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Further, there is essentially nothing to be “proved” in the course of the appeal as all evidence has already been adduced at the administrative hearing and findings made based on such evidence. Accordingly, the challenging party’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

What constitutes substantial evidence? In Robert Martin v Board of Trustees, 34 AD3d 580, the Appellate Division commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

In Modlin the court pointed out that Supreme Court "improperly transferred” the matter to the Appellate Division because the determination challenged “was not made pursuant to an administrative hearing.” The court then addressed the merits of the appeal “in the interest of judicial economy,” citing DeMonico v Kelly, 49 AD3d 265.

The decision is posted on the Internet at:

Friday, October 10, 2014

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal
Decisions of the Commissioner of Education, Decision No.16,671

A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist.  Probationer’s three-year probationary appointment was to expire on November 22, 2013. By letter dated November 19, 2013, Probationer was notified that the School Superintendent was recommending the board discontinue her probationary appointment as of January 19, 2014. At the same time Probationer was offered a one-year extension of her probationary term, which she subsequently declined.

Ultimately Probationer was advised by letter dated December 17, 2013, that her employment was terminated effective January 19, 2014. 

In her appeal to the Commissioner challenging her termination Probationer alleged that she had fulfilled her job responsibilities, had positive evaluations and no disciplinary actions had been taken against her.* She also claimed that she had been recommended for tenure by two supervisors. In view if this, Probationer asked that the Commissioner issue an order directing her reinstatement to her former position with tenure and “back pay or monetary rewards.”

Contending that Probationer had not been denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested, the School District argued that Probationer’s appeal was untimely and must be dismissed.

Addressing the procedural issue of timeliness, the Commissioner noted that an appeal to the Commissioner must be commenced “within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

Here the record did not indicate when Probationer actually received the letter advising her that her employment was to be terminated. In such case, explained the Commissioner, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays. In Probationer case, said the Commissioner, even allowing the usual five days for mailing, her appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination.

Probationer had attempted to explain her delay in commencing the appeal in a letter to the State Education Department’s Office of Counsel indicating that she had written to the State Education Department in May 2014 and received a response in June 2014 advising her that she could appeal the school district’s decision to the Commissioner without an attorney.  Petitioner said that she was previously unaware that she could appeal “without an attorney.” 

However, said the Commissioner, “Even if I accept [Probationer’s] letter … she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.”  Further, observed the Commissioner, “It is well-settled that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal.”

The Commissioner said that he found “no unusual circumstances in this case” and dismissed Probationer’s appeal on the ground that it was untimely.

* The Commissioner's decision states that Probationer “does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription,” citing Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329. As the Court of Appeals said in Duncan v Kelly, 9 N.Y.3d 102, a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The decision is posted on the Internet at:

Thursday, October 09, 2014

Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated

Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated
Watertown City Sch. Dist. v Anonymous, A Tenured Teacher, 2014 NY Slip Op 06444, Appellate Division, Fourth Department

The Watertown City School District [WCSD] initiated a proceeding in Supreme Court seeking an order quashing a subpoena duces tecum served on it by Anonymous, a tenured teacher, in the course of an administrative disciplinary action initiated against Anonymous pursuant to Education Law §3020-a. Anonymous cross-moved to compel WCSD to comply with the subpoena duces tecum.

Supreme Court granted the cross-motion filed by Anonymous and WCSD appealed.

The §3020-a Hearing Officer had issued a subpoena duces tecum in response to Anonymous’ request for production of the records of students testifying in the disciplinary action notwithstanding relevant provision of the Family Educational Rights and Privacy Act of 1974 (FERPA).

Although §3020-a hearing officers have the authority to order the production of student records that are material and relevant to accused employee's defense,* the Appellate Division noted that it is well established that, "[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" the petition and granting the cross motion.”

Citing Matter of N. v Novello, 13 AD3d 631, the Appellate Division explained that where, as here, "the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation" to show "that the material sought bears a reasonable relation to the matter under investigation.”

In this instance the Appellate Division found that the allegations of misconduct filed against Anonymous involved activities outside of the classroom and Anonymous stated only generally that the students' records were "highly relevant" in asserting a defense and that the records are "necessary and relevant to the preparation of a defense to the charges on its face."

The court found that Anonymous failed to indicate how the records were reasonably related to Anonymous’ defense nor did Anonymous present a factual basis establishing their relevance. Accordingly, the Appellate Division concluded that Supreme Court had “abused its discretion in refusing to quash the subpoena duces tecum” served on WCSD.

It unanimously reversed, on the law, Supreme Court’s ruling and granted WCSD’s petition to quash.the subpoena duces tecum issued by the Hearing Officer.

* See Education Law §3020-a [3] [c] [iii] [A], [C].

The decision is posted on the Internet

Wednesday, October 08, 2014

A full time employee’s refusal to accept a part time position does not affect the individual’s right to have his or her name placed on an appropriate preferred list

A full time employee’s refusal to accept a part time position does not affect the  individual’s right to have his or her name placed on an appropriate preferred list
Gervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth Department

In this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious. The court directed that the school district reinstate their names on the appropriate preferred eligibility list. The Appellate Division unanimously affirmed the lower court’s ruling.

The school district had contended that the teachers were not entitled to be placed on the preferred eligibility list because they had refused to accept the part-time teaching positions offered to them.*

The Appellate Division pointed out that Education Law §2510 (3) (a) provides that, if a teaching position "is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled."

Further, said the court, an individual "on such preferred list shall be reinstated or appointed to such vacancies . . . in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position."

The court explained that by reducing the teachers’ full-time teaching positions to part-time positions of .4 full time equivalent [FTE] and .2 FTE respectively, the district had "effectively abolished the full-time position[s] and created [] new part-time position[s]," thereby triggering teachers' rights under Education Law §2510 to be placed on the preferred eligibility list for possible reemployment in a full-time position.**

The fact that the teachers rejected the offer of appointment to a.4 FTE and .2 FTE position, respectively, which resulted in their termination from the school district, did not render them ineligible for placement on the preferred eligibility list nor to appointment from such a list should they become eligible for appointment to a suitable vacancy.

* On appeal the school district’s argued that the teachers “were not entitled to placement on the preferred eligibility list because they did not have tenure.” The Appellate Division said that any argument based on an alleged lack of tenure was not properly before it inasmuch as that argument was raised for the first time on appeal.

** See, also, Appeal of Morehouse, Decisions of the Commissioner of Education, Decision #13,896

For additional information concerning the layoff of personnel in the public service click on .


Tuesday, October 07, 2014

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits
Dreher v DiNapoli, 2014 NY Slip Op 06631, Appellate Division, Third Department

Among Court Officer John P. Dreher’s duties was transporting a judge who needed assistance to the courthouse from his residence. While traveling to the judge's residence Dreher took a brief detour in order to purchase a cup of coffee and was struck by a car while crossing the street, sustaining various injuries.

Dreher obtained line of duty injury benefits as provided under the controlling collective bargaining agreement. He then filed an application with the New York State Employees' Retirement System seeking accidental disability retirement benefits. His application was denied and Dreher appealed the System's decision..

The Appellate Division affirmed the Retirement System’s determination. The court explained that the State Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld.”

The court noted that while Dreher testified that he was on duty when he was injured, he "'was engaged in a personal activity rather than performing work duties at the time when the incident occurred."

Finding that substantial evidence supported the Comptroller's determination that Dreher was not in service when he was injured, and notwithstanding the fact that he received line of duty injury benefits under the terms of the collective bargaining agreement, the court dismissed Dreher’s appeal.

Determining whether an individual was “in service” for the purposes of establishing eligibility for Workers’ Compensation benefits was an issue in Neacosia v NY Power Authority, 85 NY2d 471.

Here the Court of Appeals affirmed the Workers’ Compensation Board’s decision  that Michael Neacosia, who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Neacosia was a security officer employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Neacosia, after completing his tour of duty, left work and then stopped to deliver his uniforms for cleaning at one of the cleaners recommended by the Authority, which would then bill the Authority for its services.

Leaving the cleaning establishment, Neacosia headed home along his usual route and was involved in an automobile accident in which he sustained severe injuries. The Authority controverted Neacosia’s claim for Workers’ Compensation benefits, contending that he had been involved in an accident while driving his personal automobile on a public highway after leaving work and was not engaged in any work related activity at the time he was injured.

A Workers’ Compensation Administrative Law Judge decided that under the facts giving rise to Neacosia’s claim, which were stipulated, Neacosia's travel had a dual purpose that served to extend the scope of his employment. The Workers’ Compensation Board affirmed the ALJ’s determination.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

The Court of Appeals sustained the Workers’ Compensation Board's ruling that Neacosia was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

For more information concerning disability retirement, workers’ compensation, disability leaves and related matters, click on .

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on


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