The First Department found the school district’s termination of petitioner’s probationary employment as a teacher and termination of her teaching licenses was “arbitrary and capricious” because it was based in part on an issue, absenteeism, of which the teacher had not been given notice. Matter of Brower v New York City Dept. of Educ., 2015 NY Slip Op 04764, 1st Dept 6-9-15
The Second Department determined the defendant hospital was not liable for the alleged negligence of a doctor (Berlingieri) who was not a hospital employee. In the course of the decision, the court explained when a hospital may be liable for the actions of a non-employee doctor:
“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . An exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where “a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice “was an independent contractor and not a hospital employee” …, and that “the exception to the general rule did not apply” … . In this case, the hospital met that burden by demonstrating that Berlingieri was not a hospital employee, and that [plaintiff] sought treatment from a particular physician, Joanow, went to the hospital at Joanow’s direction, and was in fact treated by Joanow and a medical team that he assembled shortly after her admission … .
A plaintiff may rebut a hospital’s prima facie showing by raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of “apparent or ostensible agency” … . To support a viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient to support the conclusion that the hospital engaged in some misleading conduct upon which the plaintiff reasonably relied when the plaintiff decided to accept medical services from the hospital … . There is no evidence that [plaintiff] was misled by the hospital into believing that Berlingieri was a member of its staff, and the record does not reflect any other allegation by [plaintiff] that she believed there to be an employment relationship between Berlingieri and the hospital, and that she thereupon accepted his services in reliance upon such a relationship … . Muslim v Horizon Med Group PC, 2014 NY Slip Op 03991, 2nd Dept 6-4-14
The Third Department determined that the NYS Education Department did not follow its own regulations in calculating the amounts due petitioner for special education services for preschool children with disabilities. Failure to follow the regulations rendered the calculation “arbitrary and capricious:”
Petitioner contends that respondent failed to follow its own regulations and otherwise acted arbitrarily primarily by relying upon unaudited information from the municipalities, disregarding petitioner’s audited CFR [Consolidated Fiscal Report] and financial data, and refusing to consider petitioner’s explanation for the discrepancies between its audited information and the municipalities’ data. Our review of an administrative agency’s determination is limited to “ascertain[ing] whether there is a rational basis for the action in question or whether it is arbitrary and capricious” …, and we have previously recognized that respondent has “broad discretion in setting the reconciliation rate” … . However, an agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis … . Although “an agency’s interpretation of its own regulation is entitled to deference” … , “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” … . * * *
The intent of the regulations, consistent with common sense and good government, is to gather and use correct data; hence, the repeated directives that service providers submit information — CFRs and financial statements — that has been independently audited and certified by an appropriate professional (see 8 NYCRR 200.9 [e] [1] [i] [a] [1]; [ii] [a]). The regulations provide no authority for relying solely on unaudited information from municipalities. This does not lead to the conclusion that such information from a municipality has no role. It can be considered to require clarification or explanation from a service provider and, if adequately verified, even incorporated in the calculus. However, at a minimum, a service provider that has adhered to the regulations and provided a CFR and financial statement, both audited, should be afforded a reasonable opportunity to explain and/or reconcile its information with the unaudited information of a municipality. Consistent with its own regulations, respondent cannot simply reject audited information by reason of the existence of less reliable information without some articulable rational basis. Matter of Mid Is. Therapy Assoc., LLC v New York State Educ. Dept., 2015 NY Slip Op 04707, 3rd Dept 6-4-15
The Third Department, in a full-fledged opinion by Justice Peters, determined the Individuals with Disabilities Education Act (IDEA) did not give local educational agencies (LEA’s) (here a local school district) a private right of action to challenge a ruling by the State Education Department (SED) . Here the SED found that the LEA’s dispute resolution practices violated state laws and regulations promulgated in accordance with the IDEA and ordered corrective measures. The LEA then challenged the SED’s rulings in an Article 78 action. The Third Department noted that the IDEA does not expressly confer a right of private action on LEA’s in this context and therefore whether such a right exists depends upon congressional intent. Because the IDEA confers a private right of action upon a specialized class, i.e., “any party aggrieved” by IDEA-related administrative proceedings which involve due process afforded a particular child, it follows that Congress did not intend to confer such a right upon LEA’s:
… Congress created procedural safeguards to ensure that students with disabilities receive a free appropriate public education and, in doing so, expressly granted a private right of action to “any party aggrieved” by an SEA’s administrative findings or decision resolving a due process complaint challenging “any matter relating to the identification, evaluation or educational placement of [a particular] child, or the provision of a free appropriate public education to such child” (20 USC § 1415 [b] [6] [A]; [f], [g], [i] [2] [A]; see also Education Law § 4404; 8 NYCRR 200.5 [i], [j], [k], [l])[FN2]. Since the IDEA includes an express right of action in favor of a specific class of persons, it is logical to assume that, had Congress intended to bestow upon LEAs a right of action to challenge an SEA’s regulatory and enforcement actions, it would have expressly done so … .
Further evidence of a lack of Congressional intent can be found in the hierarchal regulatory and enforcement structure created by the IDEA, which requires the federal Secretary of Education to monitor the states’ implementation of IDEA mandates and imposes upon the states corresponding regulatory and enforcement responsibilities over LEAs (see 20 USC § 1412 [a] [11]; § 1416 [a] [3]; 34 CFR 300.600, 300.603). The delegation of regulatory and enforcement power to the Secretary of Education and the states, but not to LEAs, suggests that Congress specifically intended to deny LEAs a right of action to challenge an SEA’s compliance with the IDEA … . Moreover, it would be inconsistent for Congress to implicitly create this right of action, as doing so would divest the Secretary of Education and the states of their regulatory and enforcement authority and would transfer that power to the Judiciary … . Matter of East Ramapo Cent. Sch. Dist. v King, 2015 NY Slip Op 04703, 3rd Dept 6-4-15
The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay. The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:
For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15
The Second Department reversed Supreme Court and granted the defendant school district’s motion to dismiss the complaint. The school’s marching band director, Perna, engaged in inappropriate communications with plaintiff’s child, KS, a student who was in the marching band. The communications by computer and cell phone took place off school grounds after hours. The Second Department determined the band director’s after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:
Because the inappropriate conduct by Perna toward KS, the plaintiff’s child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS’s injuries were not proximately caused by any negligent retention or supervision by the appellants … . In opposition, the plaintiff failed to raise a triable issue of fact.
Additionally, the Supreme Court should have granted that branch of the appellants’ motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds … and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15
The First Department determined Supreme Court used the wrong criteria when it denied petitioner’s request for documents relating to the investigation of complaints about the use of school buildings for political purposes. The complaints concerned a speech given by an employee of the Department of Education (DOE) which criticized the positions on education policy taken by unnamed mayoral candidates. The speech was put up on the DOE website. Petitioner alleged the speech violated specified Chancellor’s Regulations re: the conduct of school employees with respect political campaigns and elections. Supreme Court erroneously held that petitioner must show that the denial of the request for documents was “arbitrary and capricious,” “an abuse of discretion,” “irrational,” or “unlawful.” The proper analysis is whether the determination “was affected by an error of law” and places the burden on the respondent to show the request falls within one of the statutory exceptions to disclosure. The First Department reversed Supreme Court, applied the correct analytical criteria and found that any relevant privacy interests did not outweigh the public interest in disclosure:
The appropriate standard of review is whether the determination “was affected by an error of law” (CPLR 7803[3]…). Moreover, the burden is on respondents to establish “that the material requested falls squarely within the ambit of one of the[] statutory exemptions” from disclosure … . Under the circumstances of this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to petitioner … .
Respondents failed to establish that disclosure of the materials at issue would “constitute an unwarranted invasion of personal privacy under the provisions of [§ 89(2)]” (Public Officers Law § 87[2][b]). They do not claim that any personal privacy category enumerated in § 89(2) is applicable. Therefore, we must determine whether any invasion of personal privacy would be unwarranted “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . The speech at issue excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy. Notwithstanding that the speech did not name any individual candidate or political party, the complaints to [the school district] raised serious questions about the propriety of the speech and its publication on DOE’s website. We find that there is a “significant public interest” in the requested materials, which may shed light on whether this matter was adequately investigated … . Respondents failed to establish that the claimed privacy interests outweigh this public interest … . They assert that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers. However, that information can be redacted and does not provide a basis for withholding entire documents … . . Matter of Thomas v Condon, 2015 NY Slip Op 04237, 1st Dept 5-19-15
The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined petitioner was properly precluded by the Department of Education (DOE) from employment as a school-bus driver, based upon his criminal record. The offenses were committed when petitioner was in his 40’s and petitioner had had no further contact with the criminal justice system for 15 years. Petitioner had obtained a certificate of relief from civil disabilities and had a good employment record, which included transporting children. The Court of Appeals held that the DOE’s action was not arbitrary and capricious because the DOE considered all of the statutory factors in Corrections Law 752. The Court of Appeals noted that obtaining a certificate of relief from civil disabilities establishes a presumption of rehabilitation, but the certificate does not establish a prima facie right to a license or employment:
The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the § 752 exceptions applies:
“(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” (Correction Law § 753 [1].)
[The Court of Appeals has held] that “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” … . Matter of Dempsey v New York City Dept. of Educ., 2015 NY Slip Op 04028, CtApp 5-12-15
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined Public Officers Law 89 (7) did not exempt from disclosure the names of retirees who receive benefits from public employees' retirement systems. The question boiled down to statutory interpretation:
The answer to the question before us are retirees' names exempt from disclosure? is plain from the face of the statute. It exempts “the home address . . . of a retiree,” but not the retiree's name. By contrast, it exempts both the name and home address of “a beneficiary of a public employees' retirement system.” A “beneficiary” of a retirement system, as the term is commonly used, is a family member of an employee or retiree who is entitled to benefits after the employee's or retiree's death; it is so used on the website of one of the retirement systems in this case (NYSTRS,”Glossary of Benefit Terms,” at http://www.nystrs.org/main/glossary/html [last visited April 21, 2014]). In some contexts, “beneficiary” might be read more broadly to include a retiree, for retirees do benefit from retirement systems. But “beneficiary” was obviously not used in that sense in this statute, because the statute provides a separate and more limited exemption for a “retiree.” Matter of Empire Ctr for NY State Policy v New York State Teachers' Retirement Sys, 2014 NY Slip Op 03193, CtApp 5-6-14
The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school. The court applied the so-called Pickering test (Pickering v Board of Educ…391 US 563 [1968]) which addresses the free speech rights of public employees (which are somewhat curtailed). Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:
Under Pickering, the determination whether a public employer has properly disciplined a public employee “for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'” … . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively …, but also that “[v]igilance is necessary” to ensure public employers do not use their authority “to silence discourse[] not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech” … . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, CtApp 5-6-14
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