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IN THIS EMPLOYEE-EMPLOYER DISPUTE ABOUT A HEALTH INSURANCE PREMIUM CONTRIBUTION, THE CONTINUING WRONG DOCTRINE DID NOT APPLY TO TOLL THE STATUTE OF LIMITATIONS, EACH PAYCHECK WITH THE PREMIUM DEDUCTION WAS NOT AN INDEPENDENT WRONG (SECOND DEPT).

The Second Department determined the continuing wrong doctrine did not toll the statute of limitations in this employee-employer dispute about a health insurance premium contribution. The petitioner unsuccessfully argued each paycheck with the premium deduction was an independent wrong which tolled the statute of limitations:

A challenge to an administrative determination must be commenced within four months of the time the determination is “final and binding upon the petitioner” (CPLR 217[1]). “A challenged determination is final and binding when it has its impact’ upon the petitioner who is thereby aggrieved” … . An administrative determination regarding payment of salary or pay adjustments is final and binding, and a challenge thereto accrues, when the petitioner receives a check or salary payment reflecting the administrative determination … .

Contrary to the petitioner’s contention, the continuing wrong doctrine does not apply here to toll the statute of limitations … . The doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” … . “The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs” … . Here, the Town made the determination to classify the petitioner as an employee hired after December 31, 2014, subject to a 15% health insurance premium contribution requirement, as reflected in her first paycheck issued in April 2015, more than two years prior to the commencement of this proceeding. Each subsequent paycheck deduction “represent[ed] the consequences of [that allegedly] wrongful act[ ] in the form of continuing damages,” and was not an independent wrong in itself … . Matter of Salomon v Town of Wallkill, 2019 NY Slip Op 05671, Second Dept 7-17-19

 

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THE INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO OUT-OF-STATE ADOPTION OR FOSTER CARE, NOT TO THE PLACEMENT OF A CHILD WITH AN OUT-OF-STATE PARENT; QUESTION CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; REGULATION RELIED ON TO APPLY THE ICPC CONFLICTS WITH THE CONTROLLING STATUTE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Webber, in a matter of first impression, and refusing to follow the 2nd Department, determined that the Interstate Compact for the Placement of Children (ICPC) applies only to children to be adopted or placed in foster care in another state, not, as here, to the placement of a child with the father in another state. The issue was considered on appeal as an exception to the mootness doctrine because it is likely to reoccur. The First Department held that the controlling statute, Social Services Law 374-a,  clearly states that the ICPC applies only to out of state foster care or adoption, and the regulation which states otherwise (Association of Administrators of the Interstate Compact on the Placement of Children. AAICPC, Regulation 3) improperly expands the statutory language:

There is no dispute that the ICPC was intended to provide children in need of foster and adoptive families with more possible placements across state lines. The purpose of the statute was twofold: to assure the placement would be in a child’s best interests, and to preclude the “sending State from exporting its foster care responsibilities to a receiving State” … . Thus the ICPC was enacted to provide children in need of foster and adoptive families with more options, while still paying heed to concerns about the children’s welfare.

There is also nothing in the language of the statute or the legislative history to indicate that the ICPC was ever intended to address any individual other than an out-of-state foster or adoptive parent. The language explicitly limits its applicability to out-of-state placements in foster care or as a preliminary to a possible adoption … . The limitation reflects the ICPC’s purpose which was to provide “a uniform legislative framework for the placement of children across state lines in foster and/or adoptive homes” … . Matter of Emmanuel B. (Lynette J.), 2019 NY Slip Op 05640, First Dept 7-18-19

 

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ALTHOUGH SUBSTANTIAL EVIDENCE SUPPORTED DISCIPLINARY FINDINGS AGAINST PETITIONER, A SCHOOL BUS DRIVER WHO SLAPPED AN UNRULY STUDENT, TERMINATION WAS TOO SEVERE A PENALTY, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined substantial evidence supported the guilty findings on three disciplinary charges against petitioner, a driver of a school bus for special needs children. Petitioner had slapped a nine-year-old student who had become unruly. However, the majority determined the termination of the petitioner, a long-time employee with an unblemished record, was too severe a penalty. The two dissenters argued termination was appropriate:

… [I]n light of petitioner’s otherwise unblemished disciplinary record during her 20 years as a school bus driver, including five years driving special needs students, we conclude that termination, absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one’s sense of fairness  … . Although we are mindful of our limited role in evaluating the discipline imposed here … , we nevertheless conclude that the circumstances of this unfortunate occurrence, viewed in the specific context of petitioner’s background, establish that the harsh penalty of termination was disproportionate and shocking to our sense of fairness. Petitioner was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Petitioner’s was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment. There is nothing in petitioner’s employment history to suggest that she will ever engage in similar conduct again.

Although termination in these circumstances shocks our sense of fairness, we do not condone petitioner’s behavior, and only conclude that some form of discipline short of termination would be appropriate. We therefore modify the determination by granting the petition in part and vacating the penalty imposed, and we remit the matter to respondent for the imposition of an appropriate penalty less severe than termination … . Matter of Ansley v Jamesville-DeWitt Cent. Sch. Dist., 2019 NY Slip Op 05439, Fourth Dept 7-5-19

 

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INFORMATION PROVIDED TO A SUPERMARKET CHAIN ABOUT COMPETITORS’ PRICES IS NOT “PERSONAL AND INDIVIDUAL” WITHIN THE MEANING OF TAX LAW 1105, THEREFORE THE REPORTS OF THAT INFORMATION ARE SUBJECT TO SALES TAX (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurrence and two dissenting opinions, reversing the Appellate Division, determined that a supermarket chain, Wegmans, which pays an outfit, RetailData, for information about competitors’ prices, must pay sales tax for that information. Wegmans argued the information was “personal and individual” and therefore not taxable under Tax Law 1105:

Tax Law § 1105 (c) (1) imposes a sales tax on certain information services, “but exclud[es] the furnishing of information which is personal or individual in nature and which is not or may not be substantially incorporated in reports furnished to other persons.” * *

The information that RetailData compiled and the reports it furnished to Wegmans derived from a non-confidential and widely-accessible source, the supermarket shelves of Wegmans’s competitors. There is nothing about the information itself that is personal or individual in nature. RetailData simply collected the prices of products at grocery stores and compiled that information into reports which it furnished to Wegmans. The Tribunal rationally concluded that the information RetailData furnished to Wegmans was not personal or individual in nature because it was collected from prices on supermarket shelves, which are publicly available, widely-accessible, and not confidential. Moreover, in these circumstances, it was rational for the Tribunal to determine that RetailData’s customization of the publicly-available information it collected from supermarket shelves into a report format did not render the furnished information personal or individual in nature … . Matter of Wegmans Food Mkts., Inc. v Tax Appeals Trib. of the State of N.Y., 2019 NY Slip Op 05184, CtApp 6-27-19

 

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PETITIONER WAS 14 IN 1990 WHEN HE MURDERED A CLASSMATE AND THE CHILD SHE WAS BABYSITTING, THE PAROLE BOARD PROPERLY DENIED PAROLE FOR THE FIFTH TIME, THE RECORD DEMONSTRATES THE BOARD CONSIDERED ALL THE RELEVANT FACTORS AND DID NOT BASE THEIR DECISION SOLELY ON THE SERIOUSNESS OF THE OFFENSE (SECOND DEPT).

The Second Department determined the denial of parole to petitioner, who, in 1990, had killed a 15-year-old classmate, and the 17-month-old child she was babysitting, was not irrational. Although petitioner had made strong rehabilitative and educational efforts, the parole board properly considered all the relevant factors and did not make their decision on the basis of the seriousness of the offense alone:

We note that the literature in the record indicates that the effects of encephalitis could include “[a] lack of awareness and insensitivity” and a “lack of warmth and empathy.” We further note that the Parole Board found that the petitioner appeared to have a “disconnect” and that his remorse was “shallow.” Nevertheless, the interview record and the text of the subject determination establish that the requisite statutory factors were properly considered, and the record does not support the conclusion that the Parole Board’s determination evinces irrationality bordering on impropriety. Contrary to the petitioner’s contention, the Parole Board considered the petitioner’s “youth and its attendant characteristics in relationship to the commission of the crime[s] at issue” … , and did not base its determination solely upon the seriousness of the offenses … . In addition, the interview transcript indicates that the Parole Board took into account a number of other factors that reflected well on the petitioner, but determined that these factors did not outweigh the factors that militated against granting parole. The Parole Board was not required to give each factor equal weight and was entitled to place greater emphasis on the severity of the petitioner’s crimes … . Matter of Campbell v Stanford, 2019 NY Slip Op 04936, Second Dept 6-19-19

 

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PRIVATE COLLEGE DID NOT ADHERE TO ITS PUBLISHED RULES AND GUIDELINES AND FAILED TO INFORM PETITIONER-STUDENT OF HIS RIGHT TO SUBMIT QUESTIONS TO HIS ACCUSER, DETERMINATION THAT PETITIONER VIOLATED THE COLLEGE SEXUAL MISCONDUCT POLICY ANNULLED (FOURTH DEPT).

The Fourth Department, reversing the Supreme Court, determined petitioner-student was not afforded his due process rights in proceedings brought by a private college (Hamilton) stemming from allegations petitioner had violated the college’s sexual misconduct policy (Policy). Petitioner was not informed of his right to submit questions to his accuser:

Here, the parties agree that respondents did not have to afford petitioner a hearing under either Education Law § 6444 (5) (b) (ii) or the due process clauses of the State and Federal Constitutions. The parties further agree that petitioner did not have a right to confront or cross-examine witnesses against him … . Nevertheless, the College was required to ensure that its published rules were “substantially observed”… . This the College did not do.

At oral argument on the petition in Supreme Court and in their brief on appeal, respondents asserted that the Policy permits accused students to ask questions of accusers or witnesses in writing. …

Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right (see generally Chambers v Mississippi, 410 US 284, 295 [1973]), we conclude that respondents’ failure to inform petitioner that he had such a right establishes that they did not substantially adhere to the College’s own published rules and guidelines requiring them to inform petitioner, i.e., the “individual whose conduct is alleged to have violated th[e] Policy,” of all of the campus judicial rules and procedures. We therefore reverse the judgment, reinstate the petition, grant the petition, annul the determinations that petitioner violated the College’s Policy and direct respondents to adhere to the College’s published rules and guidelines in any future proceeding against petitioner related to the incident reports. Matter of A.E. v Hamilton Coll., 2019 NY Slip Op 04833, Fourth Dept 6-14-19

 

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SCHOOL EMPLOYEE’S NEGLIGENCE ACTION AGAINST THE DEPARTMENT OF EDUCATION IS NOT GOVERNED BY THE COLLECTIVE BARGAINING AGREEMENT (CBA), NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES; DENIAL OF MEDICAL LEAVE DID NOT HAVE RES JUDICATA OR COLLATERAL ESTOPPEL EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee’s personal injury complaint against the NYC Department of Education (DOE), stemming from an elevator accident, should not have been dismissed. The plaintiff-employee first applied to the DOE for line of duty injury paid medical leave pursuant to the collective bargaining agreement (CBA) and was denied. Plaintiff then commenced the personal injury action. The DOE argued that plaintiff had failed to exhaust the administrative remedies required by the CBA and, in the alternative, the denial of the line of duty pay should be given res judicata or collateral estoppel effect. Supreme Court decided plaintiff had failed to exhaust the administrative remedies. The Second Department held that her injury and the resulting negligence action were not covered by the CBA:

An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … or face dismissal of the action …. Here, however, the plaintiff seeks to recover damages against the defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA’s “line of duty injury” paid leave grievance provisions… . There is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA … .

The defendants’ contention that dismissal is also warranted on the basis of collateral estoppel and res judicata is without merit … . Collateral estoppel is inapplicable, as the defendants failed to demonstrate that the issue that the plaintiff seeks to pursue here was necessarily decided by the DOE when it denied the plaintiff’s “line of duty injury” paid leave application … . Likewise, the doctrine of res judicata, or claim preclusion, also is inapplicable to the plaintiff’s complaint because the relief she seeks could not have been awarded within the context of the prior administrative proceeding … . Shortt v City of New York, 2019 NY Slip Op 04745, Second Dept 6-12-19

 

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IN THIS COLLEGE DISCIPLINARY ACTION, THE COLLEGE’S REFUSAL OF THE STUDENT’S REQUEST FOR A THREE-HOUR ADJOURNMENT TO ALLOW HIS ATTORNEY TO ATTEND WAS AN ABUSE OF DISCRETION, NEW HEARING ORDERED (CT APP).

The Court of Appeals, reversing the Appellate Division in this college disciplinary action, determined the student’s request for a three-hour adjournment to allow his attorney to attend should have been granted. The link to the reversed 2nd Department decision is here:

… [T]he petition insofar as it sought to annul respondents’ disciplinary determination [is] granted and the matter remitted to the Appellate Division with directions remand to respondents for a new disciplinary hearing. Petitioner, a student enrolled at respondent Purchase College of the State University of New York, was accused of multiple disciplinary violations including sexual assault of another student. Petitioner requested a three-hour adjournment of his scheduled administrative hearing so that his attorney could attend the proceeding. Respondents denied this request. Under the particular circumstances of this case, we find respondents abused their discretion as a matter of law by failing to grant the requested adjournment … . Matter of Bursch v Purchase Coll. of the State Univ. of N.Y., 2019 NY Slip Op 04449, CtApp 6-6-19

 

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THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript:

The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided “a copy of a transcript from the proceeding, . . . any of the submissions that he may have made in support of the requests, including the applications for any variances themselves” and had “also not provided an affidavit from a person with knowledge in support of [his] petition.”

CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.” Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381, Second Dept 6-5-10

 

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PAROLE BOARD DID NOT CONSIDER PETITIONER’S YOUTH AT THE TIME OF THE OFFENSES AND APPEARS TO HAVE DENIED PETITIONER’S APPLICATION FOR RELEASE ON PAROLE SOLELY BASED ON THE SERIOUSNESS OF THE OFFENSES, DE NOVO INTERVIEW IN FRONT OF A DIFFERENT PANEL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parole board did not support the denial of petitioner’s application for release on parole with detailed reasons as required by Executive Law 259-i[2][a][i]. Petitioner was a juvenile at the time of the murders during a robbery attempt. He has been incarcerated for 36 years. He earned college degrees and assumed an leadership role in helping inmates. The Second Department concluded the parole board focused on the nature of the offenses and did not take petitioner’s youth at the time of the offenses, or his accomplishments, into consideration:

“[A] juvenile homicide offender . . . has a substantive constitutional right not to be punished with life imprisonment for a crime reflect[ing] transient immaturity'”… . “[T]he foundational principle’ of the Eighth Amendment jurisprudence regarding punishment for juveniles is that [the] imposition of a [s]tate’s most severe penalties on juvenile offenders cannot proceed as though they were not children'” … . “A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court”… . Consequently, “[f]or those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the [Parole] Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue” … . …

Neither the transcript of the September 2016 interview nor the Parole Board’s September 2016 determination shows that the Parole Board considered the petitioner’s youth at the time and “its attendant characteristics” in relationship to the crimes he committed. Instead, the record reflects that the Parole Board did not factor in the petitioner’s age at the time and the impact that his age had on his decisions and actions during the commission of these crimes when it decided to deny him parole release based on “the serious nature of the instant offenses.” Matter of Rivera v Stanford, 2019 NY Slip Op 03601, Second Dept 5-8-19

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