You are here: / Employment Law
,

Teacher Entitled to Tenure by Estoppel—Proper Way to Calculate Probationary Period Which Included Unpaid Maternity Leave Explained

The Second Department determined a teacher was entitled to tenure by estoppel.  The number of days the teacher was on unpaid, approved maternity leave was excluded from the probationary period. Properly calculated (the proper method was explained), the teacher worked beyond the three-year probationary period and was therefore entitled to tenure by estoppel:

Tenure by estoppel results “when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term” … . A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits … .

Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher’s three-year probationary period … . Contrary to the appellants’ contention in this proceeding, such an extension of a teacher’s probationary period is to be performed utilizing a workday-to-calendar day methodology. That is, for each workday missed as a result of a teacher’s unpaid leave, the three-year probationary period is to be extended by the corresponding number of calendar days … . Such a methodology is consistent with both Education Law § 3012(3), which provides that “no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights,” and the purpose of the three-year probationary period in affording a school district an opportunity to evaluate an individual’s performance as a teacher prior to granting tenure … .

Applying the foregoing principles to this proceeding, we conclude that the petitioner worked past her extended probationary period end date. Accordingly, the Supreme Court properly determined that she acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, i.e., January 21, 2011. Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 2015 NY Slip Op 05471, 2nd Dept 6-24-15

 

,

Police Officer Who Refused a Light-Duty Assignment Was Not Entitled to Disability Benefits Pursuant to General Municipal Law 207-c

The Second Department determined a police officer was not entitled to refuse a light duty assignment during the period his entitlement to disability benefits pursuant to General Municipal Law 207-c was being determined:

A disabled officer receiving General Municipal Law § 207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality’s appointed physician that the officer is fit for duty … . Once such evidence has been submitted, an “order to report for duty may not be enforced, or benefits terminated, pending resolution of an administrative hearing, which itself is subject to review under CPLR article 78” … . However, where the municipality’s physician is of the opinion that the officer is able “to perform specified types of light police duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if same “is available and offered to [the officer]” and enables him or her “to continue to be entitled to his [or her] regular salary or wages” (General Municipal Law § 207-c[3]…). If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue disability payments without a hearing … . Matter of Garvey v Sullivan, 2015 NY Slip Op 05476, 2nd Dept 6-24-15

 

,

Criteria for Liability for Acts of Independent Contractor and for Negligent Hiring of an Independent Contractor Explained (Criteria Not Met Here)

Plaintiff, who was working for the roofing contractor on a building damaged by fire, was asked by a salvager to help move a refrigerator. Plaintiff agreed and was injured while moving the refrigerator down some stairs.  The salvager was allowed to go through the building and pick out the items the salvager wanted (which included the refrigerator). Plaintiff sued the building owner (E & M). In finding the plaintiff did not have a cause of action against E & M, the First Department explained the relevant law with respect to liability for the acts of an independent contractor (the salvager) and negligent hiring of an independent contractor:

E & M established that even if it hired the salvager as an independent contractor, there is no basis to impose liability on it. “As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work” … . Although “liability will attach where the employer is negligent in selecting, instructing or supervising the contractor, where the contractor is employed to do work that is inherently dangerous or where the employer bears a specific nondelegable duty'” …, these exceptions are inapplicable… . * * *

Plaintiff’s contention that issues of fact exist as to whether E & M or its principal were negligent in selecting the salvager, i.e. whether they failed to exercise reasonable care in ascertaining whether he was qualified to move a refrigerator down a flight of stairs, is also unavailing. “[A]n employer has the right to rely on the supposed qualifications and good character of the contractor, and is not bound to anticipate misconduct on the contractor’s part….” … . Thus, an employer “is not liable on the ground of his having employed an incompetent or otherwise unsuitable contractor unless it also appears that the employer either knew, or in the exercise of reasonable care might have ascertained, that the contractor was not properly qualified to undertake the work” … . “Cases finding employers liable for negligent hiring have done so only in very specific circumstances” … not present here. There is no competent proof that E & M knew or should have known of any propensity on the part of the salvager or his helper to engage in the conduct that allegedly caused the accident … . Furthermore, plaintiff has not shown that E & M had any reason to question the qualifications of the salvager, who E & M knew had been used by its plumber on a prior occasion, to move a refrigerator … . Moreover, there was no reason for E & M to suspect that the salvager would enlist an employee of the roofing contractor to assist him. Nelson v E&M 2710 Clarendon LLC, 2015 NY Slip Op 05391, 1st Dept 6-23-15

 

, , ,

Supreme Court Properly Annulled New York Division of Human Rights’ Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)

The Fourth Department affirmed Supreme Court’s annulment of the New York Division of Human Rights’ (SDHR’s) finding, without a hearing, there was no probable cause to believe the school district discriminated against the petitioner. Petitioner was not hired because of her anticipated absence due to pregnancy. The school district’s stated reason for not hiring petitioner was that she was going to be unavailable to counsel students and there was concern about the resulting lack of continuity of counseling services for the students.  However, the petitioner’s unavailability was due to her pregnancy and discrimination could therefore be inferred:

“Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law § 297 (4) (a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis’ ” … . “Probable cause exists only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination” … . “There must be a factual basis in the evidence sufficient to warrant a cautious [person] to believe that discrimination had been practiced” … . The complainant’s factual showing must be accepted as true on a probable cause determination … . While our standard of review is highly deferential to the agency’s determination …, we agree with the court that SDHR’s determination “was not rationally based upon the evidence presented” … .

Executive Law § 296 prohibits an employer from refusing to hire or employ an individual based on, inter alia, the individual’s sex. In opposition to the petition, the District argued that it decided not to rehire petitioner because of her unavailability and its concern for continuity of counseling services for its students. Petitioner was unavailable to work, however, because of her pregnancy, and we conclude that discrimination could be inferred from the record before us … . The District relies on Roslyn Union Free Sch. Dist. v State Div. of Human Rights (72 AD2d 808) in support of its argument that it did not discriminate against petitioner. To the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination (see id. at 809-810), we decline to follow it. Matter of Mambretti v New York State Div. of Human Rights, 2015 NY Slip Op 05384, 4th Dept 6-19-15

 

,

Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity—Petitioner Entitled to Back Pay for Leave Period—Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms

The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city’s failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):

We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees “placed on leave of absence pursuant to this section” (emphasis added), “which includes Civil Service Law § 72 (5)” … . These procedures are necessary “to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service” … . “Because of the significant due process implications of the statute, strict compliance with its procedures is required” … . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with “[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of” his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 … . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner’s alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer’s decision … , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15

 

,

Question of Fact Whether Employer Considered Accommodation for Plaintiff’s Injury—Summary Judgment to Employer Should Not Have Been Granted

Plaintiff’s employment with the Department of Correctional Services (DOCS) was terminated (after plaintiff injured her hand) on the ground that plaintiff had failed to demonstrate she was medically fit to return to work and had failed to provide a date by which she would return to full duty. The plaintiff challenged her proposed termination and sought reinstatement before the effective date of termination. The Second Department determined Supreme Court should not have granted summary judgment to the employer (DOCS).  A question of fact had been raised about whether DOCS met its duty to consider accommodation for plaintiff’s injury:

An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 “unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation,” and the employer cannot present such a record “if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request” … .

“The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested” (9 NYCRR 466.11[j][4]). Viewing the evidence in the light most favorable to the nonmoving party … , we find that the plaintiff’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which DOCS rejected by terminating the plaintiff’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

Therefore, we conclude that the defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed the needs of the plaintiff and the reasonableness of her requested accommodation … . Cohen v State of New York, 2015 NY Slip Op 05147, 2nd Dept 6-17-15

 

,

“Hostile Work Environment” (Allegedly Offensive Sex-Related Remarks) and “Retaliation for Opposition to Discriminatory Practices” Causes of Action Explained

The Second Department determined defendant-employer was entitled to summary judgment on plaintiff-employee’s “hostile work environment” cause of action (allegedly offensive sex-related remarks) but was not entitled to summary judgment on plaintiff-employee’s “retaliation for opposing discriminatory conduct” cause of action. Defendant was able to demonstrate the allegedly offensive remarks were isolated incidents which did not permeate the work environment.  But a question of fact was raised about the “retaliation” cause of action. Plaintiff was terminated one day after the employer received a letter about the alleged discrimination from plaintiff’s attorney.  The Second Department explained the elements of “hostile work environment” and “retaliation for opposing discriminatory conduct” causes of action:

A hostile work environment exists where the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” … . Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a “mere offensive utterance,” and whether the alleged actions “unreasonably interfere[ ] with an employee’s work” are to be considered in determining whether a hostile work environment exists … . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an “objectively hostile or abusive environment—one that a reasonable person would find to be so” … . * * *

Under the New York State Human Rights Law, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[7]…). In order to make out a cause of action for retaliation, “[a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … . “To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . La Marca-Pagano v Dr. Steven Phillips, P.C., 2015 NY Slip Op 05162, 2nd Dept 6-17-15

 

 

,

Petitioner’s Position Properly Abolished by Enactment of Town Budget

The Second Department determined that the town did not act in bad faith when it abolished petitioner’s position through the enactment of the town budget. The court explained the applicable law:

A public employer may abolish civil service positions to “promote efficiency and economy,” provided that the employer acts in good faith … . Where a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law … . “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee” … . “[W]hen there exists a triable issue of fact with regard to bad faith, a full hearing must be held” … .

Here, contrary to the petitioner’s contention, adoption of a municipal budget may properly serve, under certain circumstances, to abolish an employee’s position … . Matter of Grant v Town of Lewisboro, 2015 NY Slip Op 05187, 2nd Dept 6-17-14

 

, , ,

Defendant’s Employee Had “Apparent Authority” to Act on Behalf of Defendant Insurance Agency—Plaintiff Justifiably Relied on the Apparent Authority When It Purchased a Fake Policy from Defendant’s Employee–Plaintiff Entitled to Partial Summary Judgment on the Fraud Cause of Action

The Fourth Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on its fraud cause of action against defendant insurance agency.  An employee of the insurance agency issued a fake workers’ compensation policy to the plaintiff. The Fourth Department found that the actions of the insurance agency provided the employee with “apparent authority” to issue the policy and the plaintiff justifiably relied on that apparent authority.  The relevant law was succinctly explained:

“In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by [the maker], made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” … . It is undisputed that the insurance policy purportedly issued by AIG was false, and thus plaintiff established that a false representation was made that was known to be false by defendant’s employee. Defendant contends, however, that the justifiable reliance element was not met because it cannot be liable for the acts of its employee, and plaintiff’s reliance on the alleged “apparent authority” of defendant’s employee was not reasonable.

It is axiomatic that “[t]he mere creation of an agency for some purpose does not automatically invest the agent with apparent authority’ to bind the principle without limitation . . . An agent’s power to bind his [or her] principal is coextensive with the principal’s grant of authority” … . “Essential to the creation of apparent authority are words or conduct of the principal, communicated to the third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his [or her] own acts imbue himself [or herself] with apparent authority. Rather, the existence of “apparent authority” depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent’ . . . Morever, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable” … . Here, plaintiff contacted defendant seeking workers’ compensation coverage, and defendant assigned its employee who specialized in plaintiff’s type of business to assist plaintiff. We therefore conclude that plaintiff established that it reasonably relied upon the authority of defendant’s employee to act for defendant. Regency Oaks Corp. v Norman-Spencer McKernan, Inc., 2015 NY Slip Op 04959, 4th Dept 6-12-15

 

, ,

Florida’s Law of Restrictive Covenants Re: Non-Solicitation of Customers by a Former Employee Violates New York Public Policy by Favoring Employers at the Expense of Employees

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Florida law on restrictive covenants re: non-solicitation of customers by a former employee violated the public policy of New York State.  Therefore the choice-of-law provision in the employee agreement was unenforceable.  The Court of Appeals went on to find that, applying New York law, questions of fact precluded a determination whether the non-solicitation agreement at issue should be enforced.  With respect to the public policy violation, the court explained:

… Florida law requires a party seeking to enforce a restrictive covenant only to make a prima facie showing that the restraint is necessary to protect a legitimate business interest, at which point the burden shifts to the other party to show that the restraint is overbroad or unnecessary (see Fla Stat § 542.335 [1] [c]). If the latter showing is made, the court is required to “modify the restraint and grant only the relief reasonably necessary to protect” the employer's legitimate business interests (Fla Stat § 542.335 [1] [c]). In contrast to this focus solely on the employer's business interests, under New York's three-prong test, “[a] restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid” … . Whereas Florida shifts the burden of proof after the employer demonstrates its business interests (see Fla Stat § 542.335 [1] [c]), New York requires the employer to prove all three prongs of its test before the burden shifts … . Further, Florida law explicitly prohibits courts from considering the harm or hardship to the former employee (see Fla Stat § 542.335 [1] [g] [1]). This directly conflicts with New York's requirement that courts consider, as one of three mandatory factors, whether the restraint “impose[s] undue hardship on the employee” … .

Additionally, under Florida law, courts are required to construe restrictive covenants in favor of protecting the employer's interests, and may not use any rules of contract interpretation that would require the construction of a restrictive covenant narrowly or against the restraint or drafter (see Fla Stat § 542.335 [1] [h]). In contrast, New York law provides that “[c]ovenants not to compete should be strictly construed because of the 'powerful considerations of public policy which militate against sanctioning the loss of a [person's] livelihood'” … . Brown & Brown, Inc. v Johnson, 2015 NY Slip Op 04876, CtApp 6-11-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy