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COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT).

The Second Department, annulling the employment discrimination determination, held that the action against the employer, Food Corp., was untimely and the relation-back doctrine did not apply. Complainant had originally named Trade Fair as her employer and then added Food Corp. more than a year after her termination:

Food Corp. does not dispute that the first prong of the relation-back test was satisfied, because the claims against Food Corp. arose out of the same transactions or occurrences as those asserted against Trade Fair. The complainant also established the third prong of the test by presenting evidence suggesting that Food Corp. had notice of the proceeding before the statute of limitations expired, and that Food Corp. should have known that, but for the complainant’s mistake in omitting it as a respondent in her complaint, the proceeding would have been timely commenced against it as well.

However, the complainant failed to satisfy the second prong of the relation-back test, because Food Corp. and Trade Fair were not united in interest. Respondents are “united in interest only when their interest in the subject-matter [of the proceeding] is such that [the respondents] stand or fall together and that judgment against one will similarly affect the other'” … . “[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the [complainant]” … . Respondents are not united in interest if there is a possibility that the new party could have a defense different from that of the original party … . Here, the Commissioner dismissed the second amended complaint insofar as asserted against Trade Fair on the grounds that the complainant never interacted with or took direction from Trade Fair’s employees, and that Trade Fair was not the complainant’s employer. In contrast, the Commissioner determined that Food Corp. was the complainant’s employer because Food Corp.’s personnel hired and fired the complainant and controlled the complainant’s daily workplace activities. Thus, the record makes clear that Food Corp.’s and Trade Fair’s interests in the administrative proceeding did not stand or fall together … . Matter of 130-10 Food Corp. v New York State Div. of Human Rights, 2018 NY Slip Op 08123, Second Dept 11-28-18

CIVIL PROCEDURE (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/ADMINISTRATIVE LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/HUMAN RIGHTS LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/EMPLOYMENT LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/DISCRIMINATION  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/RELATION BACK DOCTRINE (STATUTE OF LIMITATIONS, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/STATUTE OF LIMITATIONS (RELATION BACK DOCTRINE, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))

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ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT).

The First Department determined the stipulation signed by plaintiff teacher, who agreed to resign in return for discontinuing the disciplinary hearing, was binding under contract principles, despite the inapplicability of CPLR 2104 to administrative proceedings. After signing the stipulation, plaintiff changed his mind:

In the stipulation, DOE (Department of Education] agreed to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against plaintiff, in exchange for which plaintiff agreed “to irrevocably retire from his employment with [DOE] … .” The agreement was signed by plaintiff, his counsel, and DOE’s counsel … . Annexed to the stipulation was a letter signed by plaintiff and addressed to District Superintendent Karen Watts stating, “I hereby irrevocably retire from [DOE] … .” The stipulation contained a signature line for Superintendent Watts, who signed it several days later.

Before Superintendent Watts signed the stipulation, plaintiff notified DOE that he had changed his mind and wanted to rescind the stipulation. He argues that the stipulation was unenforceable when he changed his mind because not all the parties had signed it. …

Although CPLR 2104 is not applicable to agreements entered into in administrative proceedings, the stipulation signed by plaintiff and counsel acting on behalf of DOE is binding under general contract principles … . Plaintiff failed to show the existence of fraud, collusion, mistake or accident, or that counsel lacked DOE’s consent to enter into the stipulation … . Plaintiff’s agreement to retire was irrevocable, and plaintiff understood its consequences. His change of mind is not a cause sufficient to set aside his agreement … . Nor is his parol evidence, offered to show that the parties did not intend to be bound by the stipulation until Superintendent Watts had signed it, admissible to add to or vary the terms of the writing … . Matter of Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, First Dept 11-27-18

ADMINISTRATIVE LAW (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CONTRACT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EMPLOYMENT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EDUCATION-SCHOOL LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CIVIL PROCEDURE (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CPLR 2104  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))

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BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers are extremely limited:

Civil Service Law § 76(1) permits a person whose civil service employment has been terminated to “appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with [article 78].” If the former option is chosen, “[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court” … . The Court of Appeals has clarified that, despite the plain language in the statute, judicial review is not completely foreclosed … . Rather, the article 78 court, instead of being guided by the substantial evidence or arbitrary and capricious standards of review, is limited to reviewing whether “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction” … .

Petitioners argue that CSC acted unconstitutionally because it relied on the statements of the inmates, who never testified, thus depriving petitioners of any chance to cross-examine them. However, this point is unpreserved. Petitioners fail to point to anything in the record showing that they ever sought to cross-examine or call the inmates and were denied that opportunity. More importantly, they never protested that their constitutional rights were being violated. This Court has “no discretionary authority” to “reach[] an unpreserved issue in the interest of justice” in an article 78 proceeding challenging an administrative determination … , including issues touching on due process … and evidentiary challenges … . Matter of Almanzar v City of New York City Civ. Serv. Commn., 2018 NY Slip Op 08062, First Dept 11-27-18

ADMINISTRATIVE LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/CIVIL PROCEDURE  (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/EMPLOYMENT LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/APPEALS (CIVIL SERVICE COMMISSION, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))

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REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the revocation of petitioner’s racehorse trainer’s license by the NYS Racing and Wagering Board should have been confirmed. The Court of Appeals did not write a decision and adopted the reasoning of the dissenting justice on the Appellate Division:

From the Dissent in the Appellate Division’s Decision at 144 AD3d 1244, 1247-1252:

I agree with the majority that if the dates found on veterinary records … regarding specified forms of veterinary care represent the dates upon which such treatment was administered, those records, along with other evidence, chronicle 1,717 violations by petitioner of rules prohibiting the administration of specified substances to a horse within specified windows prior to a race. The majority, however, finds that a reasonable mind cannot reach the conclusion that those dates convey when treatment occurred. As a result, the majority annuls the entirety of respondent’s determination. In contrast, I find that the inference that respondent made that the dates listed next to specified veterinary care represent the dates that such care was administered to be reasonable and plausible. That conclusion requires confirmance and, accordingly, I respectfully dissent. * * *

Substantial evidence “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Where “room for choice” exists in the inferences to be drawn from evidence, this Court has no power to preference its own interpretation over that of the administrative agency tasked with the determination … . This great deference accorded to such an agency determination derives from the Legislature’s decision to task an agency with expertise in the relevant law and regulations—rather than a court of general jurisdiction that lacks such expertise—with the authority to initially resolve legal disputes … . Matter of Pena v New York State Gaming Commn., 2018 NY Slip Op 08060, CtApp 11-27-18

ADMINISTRATIVE LAW (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/NYS RACING AND WAGERING BOARD (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))

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SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, determined that school districts do not have the authority to oversee pre-kindergarten programs offered by charter schools. The court noted that deference to the Commissioner of Education’s contrary finding was not required because the question is one of pure statutory interpretation:

Charter schools are listed among the various eligible providers under the Statewide Universal Full-Day Pre-Kindergarten Program. Unlike other providers, however, charter schools are separately governed by the New York Charter Schools Act, and all “monitoring, programmatic review and operational requirements” related to charter school pre-kindergarten programs are “the responsibility of the charter entity” and must be “consistent with the requirements” of the Charter Schools Act (Education Law § 3602-ee [12]). The issue before us is whether the statutory scheme governing charter school pre-kindergarten programs allows for shared oversight authority between charter entities and local school districts. We hold that it does not … . * * *

According to [the appellate division, affirmed here by the Court of Appeals], the Legislature’s use of the word “all” in subdivision 12 provide the charter entity “with full responsibility for the relevant monitoring, programmatic review and operational requirements’ for the relevant prekindergarten programs” and that the plain meaning of this provision “in no way indicates that another entity — such as a school district — holds concurrent responsibility or authority in this regard” (… quoting Education Law § 3602-ee [12]). This reading, in the Appellate Division’s view, “best harmonizes the provisions of the statute in a manner consistent with the Legislature’s announced purpose” of Universal Pre-K Law which was ” to encourage program creativity through competition'” (… quoting Education Law § 3602-ee [1]). The Court also determined that the plain meaning of the term “inspection” did not include a right to regulate the curriculum (id.; see Education Law § 3602-ee [10]). The Appellate Division remitted the matter to the Commissioner, given that “the Commissioner’s determination regarding Success Academy’s request for funding was affected by its erroneous interpretation of” Universal Pre-K Law” … . Matter of DeVera v Elia, 2018 NY Slip Op 07922, CtApp 11-20-18

EDUCATION-SCHOOL LAW (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/PRE-KINDERGARTEN PROGRAMS (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))/CHARTER SCHOOLS, PRE-KINDERGARTEN PROGRAMS, (SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP))

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STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined that the Executive Law provision which prohibits level three sex offenders from entering school grounds applies to all level three sex offenders, not only those who are incarcerated for one of the enumerated sex crimes at the time they are released on parole. Petitioner was convicted of rape and adjudicated a level three offender in 1994. Subsequently petition was convicted of and incarcerated for robbery, which is not one of the enumerated crimes. The court noted that it was not, under administrative law principles, required to defer to the Board of Parole’s ruling, but nevertheless it agreed with the ruling and Supreme Court’s denial of the petition. The Fourth Department found the statute is ambiguous applying statutory-construction rules and then turned to the legislative history of the statute (Executive Law 259-c (14)):

When Executive Law § 259-c (14) was first enacted, the school grounds mandatory condition applied only to persons serving a sentence for an enumerated offense against a minor … . In 2005, the legislature amended the statute to add the reference to level three sex offenders … . The sponsors’ memorandum defined the purpose of that amendment: “To prohibit sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender” … . As justification, the sponsors offered: “There is a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for” … . …

Based on our review of the legislative history relating to the enactment of the relevant amendment to Executive Law § 259-c (14), we conclude that there existed a consensus among governmental and nongovernmental organizations that, for good or ill, the amended language was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offender. People ex rel. Garcia v Annucci, 2018 NY Slip Op 07868, Fourth Dept 11-16-18 

CRIMINAL LAW (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/PAROLE (SEX OFFENDERS, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SCHOOL GROUNDS (SEX OFFENDERS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))EXECUTIVE LAW (SEX OFFENDERS, SCHOOL GROUNDS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))

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NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined the respondent NYS Public Service Commission did not exceed its rule-making authority when it imposed a moratorium on energy service companies’ (ESCOs’) enrollments and renewals of customers who participate in utility low-income assistance programs (APPs):

Whether agency rulemaking infringes upon the Legislature’s policy-making powers is governed by the “four coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1 [1987]): “whether (1) the regulatory agency balanced costs and benefits according to preexisting guidelines, or instead made value judgments entailing difficult and complex choices between broad policy goals to resolve social problems; (2) the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance; (3) the [L]egislature had unsuccessfully attempted to enact laws pertaining to the issue; and (4) the agency used special technical expertise in the applicable field” … . …

This Court recently observed that respondent had the statutory authority to require that, in all new and renewal contracts between an ESCO and a residential customer or small nonresidential customer, the ESCO must guarantee “savings in comparison to what the customer would have paid as a full service utility customer or provide at least 30% renewable electricity” … . Citing respondent’s “broad” statutory authority “to set just and reasonable tariff rates for gas and electric corporations pursuant to Public Service Law articles 1 and 4” and that the same discretion allowed respondent to open the state’s energy markets to ESCOs in the first instance, we observed that respondent may “impose limitations on ESCO rates as a condition to continued access” … . The moratorium at issue on this appeal is directly responsive to concerns that ESCOs were costing customers, particularly APPs, more money than if they had just used a utility, a result in direct conflict with the original purpose of opening the energy markets to ESCOs … . ​Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2018 NY Slip Op 07378, Third Dept 11-1-18

ADMINISTRATIVE LAW (NYS PUBLIC SERVICE COMMISSION, UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/NYS PUBLIC SERVICE COMMISSION (ADMINISTRATIVE LAW, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/UTILITIES (LOW INCOME ASSISTANCE, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/LOW INCOME ASSISTANCE (UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))

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MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT).

The Third Department, annulling the Commissioner of Health’s determination, in a full-fledged opinion by Justice McCarthy, sent the matter back with instruction to consider whether there was a conflict between the Medicaid (Department of Social Services, DSS) regulations and the Department of Heath’s (DOH’s) guidelines. If there is a conflict, the regulations prevail. Petitioner’s request for osseous surgery to reconstruct her jaw after damage caused by cancer treatments was denied. The Commissioner had determined the surgery was not covered:

Medicaid does not cover every medically necessary procedure; “medical necessity and coverage are distinct concepts” … . A “medical necessity” analysis is only required and relevant when the requested procedure is covered in the first place. Thus, the initial question is whether osseous surgery is covered by New York’s Medicaid program. * * *

The Commissioner committed an error of law when he determined, based on the Medicaid dental manual and without recognizing a potential conflict between the manual and the regulations, that osseous surgery cannot be a covered service under Medicaid. Due to this error, respondents did not reach other issues. Specifically, there was no determination as to whether petitioner established that her request for prior approval of that surgery should be granted pursuant to the regulation as a “dental service[] required for . . . the relief of pain” (18 NYCRR 506.2 [b] [1]). If she did not meet her burden, there is no conflict between the regulation and guidelines, so the Medicaid dental manual would prevent approval of the surgery. If petitioner did establish that the surgery is required to relieve her pain (which would, perforce, mean that the surgery was medically necessary), the regulations would prevail and the Commissioner must approve the surgery as covered by Medicaid. Because this issue requires factual findings and falls within DOH’s expertise, it should be decided by the agency in the first instance … . Matter of Rovinsky v Zucker, 2018 NY Slip Op 07026, Third Dept 10-18-18

MEDICAID (MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))/ADMINISTRATIVE LAW (MEDICAID COVERAGE, MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))

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DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that the hard caps imposed by Department of Health (DOH) regulations on the executive compensation and administrative expenditures by healthcare providers receiving public funds were properly promulgated. Another regulation which sought to impose a soft cap was deemed to have exceeded the regulatory powers of the DOH. The court’s anlaysis applied the Boreali factors which address the line between administrative rule-making and legislative policy-making (separation of powers):

In totality, following consideration of the Boreali factors, we are unconvinced that, in adopting the hard cap regulations, DOH exceeded its regulatory authority. The Legislature expressed a policy goal — that state healthcare funds should be expended in the most efficient and effective manner to maximize the quality and availability of public care — and the hard cap regulations, which focus exclusively on the appropriate use of state funds, are directly tied to that goal without improperly subverting it in favor of unrelated public policy interests … . * * *

… [T]he soft cap regulation cannot be said to here “fill in details of a broad policy.” Rather than determining the best way to regulate toward the legislative goal identified in its enabling legislation (i.e., using state funds to purchase affordable, quality care) with respect to the soft cap DOH appears to have envisioned an additional goal of limiting executive compensation as a matter of public policy and regulated to that end. Thus, we agree with the conclusion of the courts below that the soft cap regulation was promulgated in excess of DOH’s administrative authority. Matter of LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, CtApp 10-18-18

ADMINISTRATIVE LAW (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/CONSTITUTIONAL LAW (SEPARATION OF POWERS, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EMPLOYMENT LAW (EXECUTIVE COMPENSATION, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EXECUTIVE COMPENSATION (HEALTHCARE PROVIDERS, (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/BOREALI FACTORS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/REGULATIONS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/DEPARTMENT OF HEALTH (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))

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COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the college’s determination that petitioner-student violated  the code of student conduct was supported by substantial evidence:

“We emphasize that [t]he substantial evidence standard is a minimal standard” … , and “demands only that a given inference is reasonable and plausible, not necessarily the most probable”… . Stated differently, “[r]ationality is what is reviewed under the substantial evidence rule” …; substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” . Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently … .

“[O]ften there is substantial evidence on both sides of an issue disputed before an administrative agency” … . Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, “irrespective of whether a similar quantum of evidence is available to support other varying conclusions”… . Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds … . …

Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct. The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents … . Matter of Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964, CtApp 10-18-18

EDUCATION-SCHOOL LAW (COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/EVIDENCE (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/ADMINISTRATIVE LAW  (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/COLLEGES AND UNIVERSITIES (DISCIPLINARY PROCEEDINGS, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))

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