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THE IMPLEMENTATION OF FEES FOR CIVIL SERVICE EXAMS IS NOT A CONDITION OF EMPLOYMENT SUBJECT TO NEGOTIATION UNDER THE TAYLOR LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the appellate division and the NYS Public Employees Relations Board (PERB), determined the implementation of application fees for promotional and transitional civil service exams.by the Department of Civil Service (DCS) was not a condition of employment subject to negotiation under the Taylor Law:

Civil Service Law § 50 (5) vests DCS with power to impose fees to recoup the administrative costs of conducting civil service exams, not with authority to alter the employer-employee relationship through the imposition of the fees. The fees for promotional and transitional exams at issue here are akin to fees imposed by an agency with plenary authority to set fees for licenses that an employer may demand as a job requirement, such as a driver’s license or professional license. As with those fees, DCS’s statutory authority to impose the at-issue application fees is unrelated to the employment itself. The fees have no connection to job qualifications, criteria for employment, or job-related duties and obligations. The imposition of the subject fees is therefore not encompassed within the definition of terms and conditions of employment under Civil Service Law § 201 (4). Nor did the waiver of the fees for State employees render them terms or conditions of employment.

Because the imposition of the fees was not a term and condition of employment, the State had no obligation to negotiate with respect to their implementation. PERB’s conclusion to the contrary was error. Matter of State of New York v New York State Pub. Empl. Relations Bd., 2023 NY Slip Op 00805, CtApp 2-14-23

​Practice Point: Fees for civil service promotional and transitional civil services exams are not a condition of employment subject to negotiation under the Taylor Law.

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PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined some causes of action should have been dismissed and others should not have been dismissed in this action against the county, county employees and sheriff alleging plaintiff was denied proper medical care while he was an inmate in the Niagara County Jail. The medical malpractice and negligence causes of action against a doctor employed by the county were time-barred pursuant to General Municipal Law 50-d (one year and ninety days). The causes of action against the doctor and the county alleging civil rights violations pursuant to 42 USC 1983 properly survived motions to dismiss. But the 42 USC 1983 cause of action against the sheriff should have been dismissed because the sheriff had no personal involvement in plaintiff’s medical care. The relation-back doctrine was improperly invoked for time-barred causes of action against the sheriff because the county and the sheriff are not united interest (the county is not vicariously liable for the acts of the sheriff and the sheriff’s department does not have an identity separate from the county). The negligent investigation cause of action should have been dismissed because New York does not recognize it. Claims alleging the county was vicariously liable for the acts of the sheriff should have been dismissed because plaintiff did not allege there was a local law imposing such a responsibility. Prezioso v County of Niagara, 2023 NY Slip Op 00768, Fourth Dept 2-10-23

Practice Point: Plaintiff alleged he was denied proper medical care in the Niagara County Jail. Plaintiff’s causes of action alleging a violation of his civil rights pursuant to 42 USC 1983 survived dismissal. The confusing relationship between the county and the sheriff resulted in the dismissal of several causes of action. The one-year-ninety day statute of limitations in the General Municipal Law applied to some causes of action. Absent a local law to the contrary, a county is not vicariously liable for the acts of the sheriff. The decision is worth reading because of the sheer number of unique issues which arise in suits against counties, county employees and county sheriffs.

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of the suit:

In a negligence or malpractice action “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other” … . … As the PA defendants were employed by the practice, not the individual doctor defendants, there is no vicarious liability based on respondeat superior … . …  [T]he plaintiff failed to set forth sufficient facts to demonstrate that the PA defendants were directly supervised or controlled by the doctor defendants in their care and treatment of the decedent.

… The record is devoid of evidence that the PA defendants had notice that an action had been commenced against the doctor defendants prior to the expiration in 2014 of the statute of limitations for the medical malpractice and wrongful death causes of action. Sanders v Guida, 2023 NY Slip Op 00455, Second Dept 2-1-23

Practice Point: Here two of the three prongs of the relation-back doctrine should not have been applied to allow adding two physician’s assistants (PA’s) as defendants in this med mal case after the statute of limitations had run. The defendant doctors were not the PA’s employers or supervisors (the doctors and PA’s were not united in interest) and the plaintiff did not show the PA”s had timely knowledge of the suit.

 

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ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). ​

The First Department set aside the verdict against the attending physician and found the $3 million damages award excessive in this medical malpractice action. The attending physician, Tigges, could not be held vicariously liable fir the negligence of the physician’s assistant, Caputo, based on Tigges being a shareholder in the professional service corporation which employed Caputo. The First Department held the plaintiff should stipulate to damages in the amount of $500,000:

Dr. Tigges was not involved in plaintiff’s treatment during her admission, notwithstanding that he was often listed as the attending physician on her chart … . He was also not liable for Caputo’s conduct pursuant to Department of Health Regulations (10 NYCRR) § 94.2 or Business Corporation Law § 1505 (a). There is no indication that Dr. Tigges, and not another of the doctors at [defendant] OADC, was the doctor supervising Caputo at the time in question … .

We find that the $3 million jury award deviates materially from what would be reasonable compensation and should be reduced as indicated (see generally CPLR 5501[c] … ). Although none of the cases relied on by the parties are squarely on point, the subject award is well outside the range of awards in all of these cases … . Appleyard v Tigges, 2023 NY Slip Op 00260, First Dept 1-24-23

Practice Point: The attending physician in this medical malpractice case could not be held vicariously liable for the negligence of the physician’s assistant on the ground that the attending physician was a shareholder in the professional service corporation which employed the physician’s assistant.

 

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THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the alleged assault and battery by corrections officers occurred within the scope of the officers’ employment at the correctional facility and was reasonably foreseeable. Therefore the state could be liable under the doctrine of respondeat superior. The Court of Claims had held the assault was conduct outside the scope of the officers’ employment and the state therefore was not liable:

… [W]hile it is our view that the correction officers’ use of force was excessive, the ensuing investigations of the incident effectively condoned the conduct of the correction officers and tacitly found them to be engaged in actions that were within the scope of employment … . To this end, it was claimant that was found guilty of misbehavior for assaulting prison staff, and prison officials determined that the use of force was “consistent with Departmental Rules[,] and [that] the injuries received, both by staff and the involved [incarcerated individual] are accounted for.” This evidence reflects that prison officials determined that the conduct of the correction officers was appropriate under the circumstances and fell within the scope of employment. Finally, in light of claimant’s … report accusing Poupore [one of the corrections officers involved] of inappropriate contact with claimant, which preceded the incident, and Poupore’s knowledge of same, it was clearly foreseeable that a tense encounter could result during further interactions between Poupore and claimant in the context of normal employment-related activities in the prison … . Altogether, we find that the foregoing establishes by a preponderance of the evidence that the assault occurred within the scope of the correction officers’ employment as a reasonably foreseeable consequence of an employment-related activity and that the verdict in this case must be reversed on the facts and the law. Galloway v State of New York, 2023 NY Slip Op 00137, Third Dept 1-12-23

Practice Point: The assault and battery of claimant-inmate was deemed to be within the scope of the corrections officers’ employment and foreseeable. Therefore the state, as the officers’ employer, could be liable under the doctrine of respondeat superior.

 

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PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for employment discrimination, failure to pay overtime, and failure to pay weekly:

… [P]laintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws … . Plaintiff alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination … . Specifically, plaintiff, a Black woman, alleges that her supervisor … , irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks . . . I should have never hired her.”

… [W]e find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime (CPLR 3013 …).

Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191. Kirby v Carlo’s Bakery 42nd & 8th LLC, 2023 NY Slip Op 00059, First Dept 1-10-23

Practice Point: Here plaintiff stated causes of action for employment discrimination (a racist remark just prior to her termination), as well as failure to pay overtime and failure to pay weekly in violation of the Labor Law.

 

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THE EMERGENCY DOCTRINE IS NOT APPLICABLE IN THIS TRAFFIC ACCIDENT CASE BECAUSE THE EMERGENCY (A WATER BOTTLE UNDER THE ACCELERATOR) WAS OF THE DEFENDANT’S OWN MAKING; THE GROSS NEGLIGENCE CAUSE OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SURVIVED SUMMARY JUDGMENT; PUNITIVE DAMAGES ARE NOT AVAILABLE AGAINST DEFENDANT DRIVER’S EMPLOYER (FOURTH DEPT).

​The Fourth Department determined: (1) the emergency doctrine did not apply in this traffic accident case because the defendant driver caused the water bottle to fall from the cup holder where it lodged under the accelerator; (2) the cause of action alleging gross negligence and seeking punitive damages properly survived summary judgment; and (3) punitive damages are not available against defendant’s employer [Silvarole] pursuant to the respondeat superior theory:

… “[T]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making” … . The “emergency doctrine has no application where . . . the party seeking to invoke it has created or contributed to the emergency” … .  … [T]he record … establishes that Davis [defendant driver] was the only person in the vehicle, and defendants did not submit evidence that any other person was responsible for the alleged emergency … . Thus, we conclude that defendants failed to demonstrate that the emergency encountered was not of Davis’s own making, “i.e., that [Davis] did not create or contribute to it” … . * * *

Punitive damages may be awarded “based on intentional actions or actions which, while not intentional, amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard” … . * * * Defendants … failed to meet their initial burden of establishing that Davis’s conduct, specifically his decision to look for and retrieve the obstacle while the tractor-trailer was in motion—despite the fact that his brakes were in working order—did not “amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others” … . …

Plaintiff seeks to hold Silvarole liable for punitive damages under a theory of vicarious liability. However, punitive damages are unavailable under such a theory absent limited circumstances not present here … . Miller v Silvarole Trucking Inc., 2022 NY Slip Op 07348, Fourth Dept 12-23-22

Practice Point: In a traffic accident case, the emergency doctrine does not apply where the emergency is of the defendant’s own making, here a water bottle under the accelerator.

Practice Point: The gross negligence cause of action and demand for punitive damages in this traffic accident case survived summary judgment.

Practice Point: Punitive damages are not available against the driver’s employer under a vicarious liability theory.

 

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PETITIONER, A FORMER CORRECTION OFFICER SEEKING REINSTATEMENT, WAS ENTITLED TO THE RECORDS OF THE PSYCHOLOGICAL EXAMINATION WHICH FOUND HIM UNFIT; THE WAIVER OF THE RIGHT TO REVIEW THOSE DOCUMENTS, SIGNED BY PETITIONER, WAS A NULLITY (THIRD DEPT).

​The Third Department, in a full-fledged opinion by Justice Pritzker, reversing Supreme Court, determined petitioner, a former correction officer seeking reinstatement, was entitled to discovery of the records of the psychological examination which found him unfit to serve as a correction officer. The court held that the waiver of the right to review such documents (signed by the petitioner at the outset) was a nullity:

… [W]e do not agree that the limited review procedures established in Correction Law § 8 can lawfully be used to side-step and effectively eviscerate the robust protections set forth in 4 NYCRR 5.9 (e) (3), which directly apply to those seeking reinstatement under Civil Service Law § 71 … . Nevertheless, although both statutes have different purposes — Correction Law § 8 is designed to eliminate applicants “who exhibit psychological disorders that would indicate their unsuitability for the job” … , whereas Civil Service Law § 71 was enacted for the “protection of an employee separated from the service by reason of a disability resulting from occupational injury or disease” … — both purposes can be achieved, and the statutes harmonized by permitting the use of Correction Law § 8 testing while preserving the review procedure set forth in 4 NYCRR 5.9 relative to employees falling within Civil Service Law § 71 … . Notably, despite the use of Correction Law § 8 testing, this matter remains distinctly a Civil Service Law § 71 reinstatement case.

… [P]etitioner is minimally entitled to receive the clandestine psychological report that formed the very basis for the disqualification for reinstatement, as well as all other rights attendant to a hearing held pursuant to article 3 of the State Administrative Procedure Act. … [T]o the extent that petitioner signed a waiver purporting to extinguish these rights, the waiver is a nullity inasmuch as respondent’s policy requiring all applicants to sign the consent and release form is an unpromulgated rule under the definition of “[r]ule” within State Administrative Procedure Act § 102 (2) (a) (i), and therefore is without effect … . Matter of Williams v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07280, Third Dept 12-22-22

Practice Point: Petitioner, a former correction officer seeking reinstatement, was entitled to the records of the psychological exam which found him unfit. The waiver of the right to review the documents, signed by petitioner at the outset, was based upon an unpromulgated rule and therefore was of no effect.

 

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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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HYDE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, LOST CONTROL AND CROSSED INTO THE PATH OF AN ONCOMING COUNTY BUS; HYDE WAS FATALLY INJURED AND PLAINTIFF HAD NO MEMORY OF THE ACCIDENT; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THE BUS DRIVER SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court in this traffic accident case, determined the complaint against Bryant, the driver of the county bus involved in the accident, should have been dismissed. The driver of the car in which plaintiff was a passenger, Hyde, lost control of the car and crossed into the path of the oncoming bus. Hyde was fatally injured and plaintiff had no memory of the accident:

Bryant stated in her affidavit and deposition testimony that a mixture of snow and ice was falling in the leadup to the accident and that, although the road was coated in snow, she was still able to see the center line and fog lines. Bryant added that she was travelling two to five miles below the speed limit and was comfortable driving the bus in the weather conditions. As for the accident itself, Bryant stated that Hyde’s vehicle entered her lane about 1½ car lengths in front of the bus and that she had a second to react before striking it, as well as that she had “nowhere to go” to evade Hyde’s vehicle and that she lightly applied her brakes in an effort to slow down without losing control of the bus. Plaintiff had no recollection of the accident, and nothing else in the record, including the police accident report, contradicted Bryant’s version of events. Bryant accordingly established that she reacted reasonably when Hyde’s vehicle entered her lane of traffic, and plaintiff’s speculation that Bryant might have been able to avoid the collision had she been driving even further below the speed limit or taken other evasive action despite having “at most, a few seconds to react,” did not raise a question of fact … . Northacker v County of Ulster, 2022 NY Slip Op 07285, Third dept 12-22-22

Practice Point: The only evidence of the accident was that the driver of the car in which plaintiff was a passenger crossed into the path of the oncoming county bus and the bus driver had only a second to react. The county’s motion for summary judgment dismissing the complaint against the bus driver should have been granted.

 

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