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Payroll Deduction for Health Benefits Should Be Added to Teacher’s Salary When Calculating Retirement Benefit

The Third Department reversed Supreme Court finding that the pre-tax payroll deduction from a teacher’s pay for health benefits must be added to the teacher’s salary to determine the retirement benefit:

We agree with petitioner’s assertion that respondents’ exclusion of the premium surcharge payment from the calculation of her final average salary was irrational and arbitrary and capricious and, therefore, we reverse. A teacher’s final average salary for purposes of determining public retirement benefits is “the average regular compensation earned as a teacher during the three years of actual service immediately preceding his [or her] date of retirement” (Education Law § 501 [11] [b]). The “wages” used in calculating the final average salary consist of “regular compensation earned by and paid to a member by a public employer” (21 NYCRR 5003.4 [b]). Notably, Retirement and Social Security Law § 79 provides, as relevant here, that, “[t]o the extent permitted by [26 USC § 125] and any regulations adopted pursuant thereto, any salary reduction elected by an employee who is a participant in [the Retirement System] under a cafeteria plan or flexible benefit plan shall be considered part of annual compensation for the purpose of . . . computing retirement benefits.”  Matter of Felice-zwaryzuk v NYS Teachers’ Retirement System, 2014 NY Slip Op 08095, 3rd Dept 11-20-14

 

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School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured

The Fourth Department determined that plaintiff’s son was not yet in the custody or control of the school when he was injured. Summary judgment dismissing the complaint was therefore required.  Plaintiff had dropped her son off across the street from the school, and told him to stay there while she directed cars to a parking area for an upcoming lacrosse game (in which plaintiff’s son was to participate). A teammate told the plaintiff’s son to go to the school to check in with the coach.  He was injured crossing the street:

…[I]t is well settled that “[t]he duty of a school district to its students is strictly limited by time and space and exists only so long as a student is in its care and custody” … . We reject plaintiff’s contention that defendants owed plaintiff’s son a duty of care under the circumstances here. When plaintiff dropped off her son and told him to “stay there,” she made a parental decision to keep her son across the street because she was concerned about him “crossing over” given that there was “lots of traffic” in the intersection where the accident occurred. Thus, plaintiff had not relinquished control of her son, and defendants had not yet gained the physical custody or control of him that is a prerequisite to imposing a legal duty on them … . The fact that plaintiff’s son disobeyed plaintiff’s directive and crossed the street does not change that legal result.

We reject plaintiff’s further contention that defendants owed plaintiff’s son a duty because the defendants placed plaintiff’s son in a “for[e]seeably dangerous setting that the [defendants] had a hand in creating.” Because the child was never in the physical custody or control of the defendants, however, the defendants were “never in a position to . . . release [plaintiff’s son] into a hazardous setting … . Ritchie v Churchville-Chili Cent School Dist, 2014 NY Slip Op 07792, 4th Dept 11-14-14

 

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Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “Thus, where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” … . A court may reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly”… .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

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Doctrine of Primary Assumption of the Risk Does Not Apply to Game of “Manhunt” Played After Midnight on School Property

The Second Department determined that a game of “Manhunt” played on school premises after midnight was not the type of activity covered by the primary assumption of the risk doctrine:

…[T]he defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the action was barred by the doctrine of primary assumption of risk … , the doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . As the Court of Appeals explained in Trupia v Lake George Cent. School Dist. (14 NY3d 392), by placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more participation … . The doctrine of primary assumption of risk is not applicable to the midnight game of manhunt at issue in this case. As with the “horseplay” at issue in Trupia, the game of manhunt at issue in this case is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Therefore, the defendant did not establish that the doctrine of primary assumption of risk applies here … . Wolfe v North Merrick Union Free School Dist, 2014 NY Slip Op 07499, 2nd Dept 11-5-14

 

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Service Requirements of Education Law 3813(1) Do Not Apply to Disputes Involving the Public Interest As Opposed to Private Rights/Criteria for Granting an Extension (Nunc Pro Tunc) to Effect Service Pursuant to CPLR 306-b Explained

The Second Department determined an action challenging the award of a contract to a bus company by a school district should not have been dismissed for failure to comply with the service requirements of the Education Law and the CPLR.  The service requirements of Education Law 3813(1) do not apply to disputes involving the public interest as opposed to private rights.  The complaint was not served in accordance with CPLR 311(a)(7) because it was served upon a security guard and not one of the persons designated in the statute.  However, the matter was sent back for a ruling whether an extension of the time for service should be granted pursuant to CPLR 306-b:

In general, the service of a timely notice of claim pursuant to Education Law § 3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect … . However, “not all actions and special proceedings have been held to be subject to the prerequisites of subdivision 1 of section 3813. The pertinent distinction is between actions and proceedings which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” … .

Because “[t]he central purposes of New York’s competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts” …, a proceeding challenging the award of a contract pursuant to the competitive bidding statutes is a matter in the public interest … . Since the petitioners here do not seek only to enforce their private rights, Education Law § 3813(1) does not apply … . …

Pursuant to CPLR 306-b, where service is not made within 120 days of the commencement of the action or proceeding, the matter is subject to dismissal, but the court may, “upon good cause shown or in the interest of justice, extend the time for service.” The Court of Appeals has made clear that these are two distinct standards and that, while “good cause” requires a showing of reasonable diligence, “the interest of justice” has a broader scope, which can encompass late service due to “mistake, confusion or oversight, so long as there is no prejudice to the defendant” … . In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, “diligence, or lack thereof, . . . expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . Matter of Baumann & Sons Buses Inc v Ossining Union Free Sch Dist, 2014 NY Slip Op 07353, 2nd Dept 10-29-14

 

An “Administrative Evaluation,” As Opposed to a Formal Disciplinary Reprimand, Can Remain in a Teacher’s File Even though the Evaluation Was Issued In the Absence of the Formal Notice and Hearing Requirements of Education Law 3020-a

The Second Department determined an “administrative evaluation,” opposed to a formal disciplinary reprimand, could remain in a teacher’s file, even though the evaluation was issued in the absence of the formal notice and hearing procedures mandated by Education Law 3020-a:

In New York, a tenured teacher may not be “disciplined” without being afforded the procedures set forth in Education Law § 3020-a, which requires that formal charges first be referred to the board of education for a determination of probable cause, after which the teacher is given written notice of the charges and an opportunity for a hearing (Education Law § 3020; see Education Law § 3020-a). However, section 3020-a does not “insulat[e] tenured teachers from all written critical comment from their supervisors” … . While a formal disciplinary reprimand may not be issued without compliance with section 3020-a, a critical “administrative evaluation” may properly be included in a teacher’s personnel file without resort to such procedures … .

Here, the letter the petitioner sought to have removed from his personnel file “[fell] within [the] permissible range of administrative evaluation,” and the respondent Elmsford Union Free School District did not act unlawfully in making it part of the petitioner’s personnel file without complying with Education Law § 3020-a… . Matter of Weinberger v Elmsford Union Free School District, 2014 NY Slip Op -7360, 2nd Dept 10-29-14

 

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Personal Injury Suit by Student Against School District Alleging Negligent Supervision Properly Survived Summary Judgment

The Second Department determined a personal injury suit by a student alleging negligent supervision properly survived summary judgment.  The student was injured when she was pushed by those behind her into a door which should not have been locked:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . While schools are not insurers of student safety, they have a duty to exercise the same degree of care toward their students as would a reasonably prudent parent under comparable circumstances … . Here, the evidence submitted by the defendants, which included the deposition testimony of the infant plaintiff and Breen, was insufficient to establish, prima facie, that they properly supervised the infant plaintiff and her physical education class or that their alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . In addition, the defendants’ evidence was insufficient to establish that the locked door of the girls’ locker room was open and obvious and not inherently dangerous under the circumstances … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances,” as the condition may be rendered a trap where it is obscured or the plaintiff is distracted … . Maneri v Patchogue-Medford Union Free Sch Dist, 2014 NY Slip Op 07336, 2nd Dept 10-29-14

 

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County Can Charge Towns the Amounts Paid by the County On Behalf of Community College Students Residing in the Towns, Even Though the State, by Statute, Undertook the Responsibility to Reimburse the Counties for those Expenses—One Statute Does Not Impliedly Repeal Another Unless It Is Impossible to Give Effect to Both

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the amounts paid by a county for its residents' attendance at an out-of-county community college can be charged to the towns within the county where the students reside. The court further held that the amounts owed by the towns to the county could be taken by the county from a town's share of county sales tax revenue.  The county was authorized to charge the towns, even though the state, by statute, had taken on the responsibility for reimbursing the counties.  The state's obligation in that regard had not been funded for years. The state's failure to fund its obligation, however, did not negate the statute which allowed the county to charge the towns:

According to the financing system established by the Education Law, funding for community colleges is derived from the State, the local sponsor and the individual students (see Education Law §§ 6304 [1][a], [1][c], [1][d]). The local sponsor's portion of the financial burden depends upon where its students reside. For “resident” students — generally those who reside within the particular geographic region served by the local sponsor — the local sponsor is responsible for a portion of the community college's operating and capital costs (see Education Law §§ 6301 [5]; 6304 [1]). For nonresident students — those who live within New York State, but outside of the region where the community college is located — the local sponsor is permitted to charge back a portion of those operating costs to the students' county of residence (see Education Law § 6305 [2]). The county, in turn, is authorized to “charge back such amounts in whole or in part to the cities and towns in the county” where such nonresident students reside (Education Law § 6305 [5]). * * *

It is true that the State's reimbursement obligation is phrased in mandatory terms (see Education Law § 6305 [10]). However, there is nothing in the statute that expressly repeals the County's ability to seek chargebacks from the towns. Nor is there any indication that the legislature intended to impliedly repeal section 6305 (5). “Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted” … . Here, the statutes are not in irreconcilable conflict, but can be harmonized. The community college funding scheme is clearly intended to provide the counties with reimbursement. That goal can either be accomplished using funds from the State (if available) or, in the alternative, from the local municipalities. The effect of the State's failure to fund its reimbursement obligation is not the imposition of an additional expense upon the counties — especially where the statute continues to authorize chargebacks to the towns and cities for all community colleges. In other words, the State's nonperformance does not change the rights and obligations as between the County and the Town. Rather, the State's reimbursement obligation was superseded when the legislature failed, in the course of the budgeting process, to appropriate the required funding … . The County was then free to look to the Town for reimbursement under Education Law § 6305 (5). Matter of Town of N Hempstead v County of Nassau, 2014 NY Slip Op 07009, CtApp 10-16-14

 

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Where a School District Employee’s Job Is Eliminated Due to a Transfer of Function, the Procedure Mandated by Civil Service Law Section 70 Must Be Completed Before the Four-Month Statute of Limitations (for an Action Seeking Reinstatement) Starts Running

The Third Department determined the procedure mandated by Civil Service Law section 70 applied to a school district’s decision to cease its own data management services and purchase the services from BOCES.  Petitioner was employed by the district in data management.  The court held that the four-month statute of limitations for the employee’s action seeking reinstatement did not start until the Civil Service Law section 70 procedures had been followed:

Civil Service Law § 70 (2) applies “[u]pon the transfer of a function” from the District to BOCES (Civil Service Law § 70 [2] [first sentence][FN3]). The District’s decision to cease providing its own data management services and purchase such services from BOCES constituted the “transfer of a function” within the meaning of the statute … . The statute required the District, not less than 20 days before any such transfer, to certify to BOCES a list of the names and titles of all District employees who were “substantially engaged in the performance of the function to be transferred” and to publicly post that list along with a copy of the statute (Civil Service Law § 70 [2] [second sentence]). All District employees could then, before the effective date of such transfer, give written notice of protest to BOCES and the District of their “inclusion in or exclusion from such list” (Civil Service Law § 70 [2] [third sentence]). The head of BOCES would be required, within 10 days of receiving a protest, to review the protest, consult with the District and notify the employee of the determination regarding such protest (see Civil Service Law § 70 [2] [fourth sentence]). “Such determination shall be a final administrative determination” (Civil Service Law § 70 [2] [fifth sentence]). Respondents would then be required to determine which employees on the list were necessary to be transferred, by considering statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services (see Civil Service Law § 70 [2] [first and eighth sentences]…). Employees who were not transferred would be placed on a preferred hire list for similar positions at both the District and BOCES (see Civil Service Law § 70 [2] [eleventh sentence]).

* * * Ignoring the statutory procedure would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.

In transfer cases, the statute of limitations begins to run after the transferee agency rules against a protest to include an employee on the certified list or declines to transfer an employee who is on the list. Matter of Thornton v Saugerties Cent Sch Dist, 2014 NY Slip Op 07046, 3rd Dept 10-16-14

 

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Teacher’s Subpoena for School Records of a Student Who Testified at the Teacher’s Education Law 3020-a Proceeding Should Have Been Quashed

The Fourth Department determined a subpoena for a student’s school records should have been quashed. The subpoena was served on the school district on behalf of the respondent, a tenured teacher who was the subject of an Education Law 3020-a proceeding.  The alleged misconduct of the student (who testified at the proceeding) occurred outside the classroom and the teacher did not demonstrate the relevance of the requested records:

The record establishes that, following an initial prehearing conference in the section 3020-a proceeding, the Hearing Officer granted respondent’s request for production of the testifying high school students’ records, notwithstanding protections under the Family Educational Rights and Privacy Act of 1974 (FERPA), and thereafter limited production of students’ records to those from seventh grade forward. In connection with that request, the Hearing Officer issued a subpoena duces tecum ordering the production of those student records. Although the Hearing Officer had the authority to order the production of student records that were material and relevant to respondent’s defense (see § 3020-a [3] [c] [iii] [A], [C]), 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” … . 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” … . Here, the allegations of misconduct against respondent involved activities outside of the classroom, and respondent 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.” Thus, in light of respondent’s failure to indicate how the records are reasonably related to respondent’s defense and a factual basis establishing their relevance …, we conclude that the court abused its discretion in refusing to quash the subpoena duces tecum … . Matter of Watertown City Sch Dist v Anonymous, a Tenured Teacher, 2014 NY Slip Op 06444, 4th Dept 9-26-14

 

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