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NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

…[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13

 

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Contractual Shortened Statute of Limitations Okay

The Second Department held that a shortened statute of limitations agreed to in an employment contract was enforceable:

“The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” (…see CPLR 201…). “ Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, 2nd Dept, 4-24-13

 

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Defendant Was Not Plaintiff’s “Special Employer”

In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote:

Defendant’s motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law § § 11, 29[6] …, was properly denied. Defendant maintains that it was Vasquez’s special employer because it hired all building employees, including Vasquez, and was also responsible for firing. However, plaintiff asserts the evidence establishes that defendant was not Vasquez’s special employer. Specifically, the property owner, not defendant, paid and provided benefits to Vasquez. Defendant’s evidence failed to establish as a matter of law that it “control[led] and direct[ed] the manner, details and ultimate result of” Vasquez’s work …, and plaintiff acknowledges questions of fact exist on this issue. If the issue of defendant’s status as a special employer is resolved in plaintiff’s favor, plaintiff is entitled to partial summary judgment on liability on her Labor Law § 240(1) claim. Vasquez v Cohen Bros Realty Corp, 2013 NY Slip Op 02682, 1st Dept, 4-23-13​

 

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Employee-Status Proven and Workers’ Compensation Exclusivity Provision Applied; Employee’s Jumping from Stalled Elevator Was Superseding Cause of Accident

The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work:

The Workers’ Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, the evidence establishes that an actual employment relationship exited between plaintiff and Plaza Residences. Such evidence includes Plaza Residences’ payroll records, state withholding tax and unemployment returns, plaintiff’s own W-2 form, and copies of cancelled paychecks. Each of these documents identified Plaza Residences as plaintiff’s employer, and the fact that Plaza Residences relinquished all authority to nonparty Wavecrest Management, Inc., which directed and controlled plaintiff’s work, did not preclude Plaza Residences from asserting the Workers’ Compensation defense.

The First Department also determined petitioner’s jumping from a stalled elevator was “an unforeseeable, superseding cause of his accident” and dismissal of his complaint was therefore warranted. Clifford v Plaza Hous Dev Fund Co, Inc, 2013 NY Slip Op 02695, 9871, 305519/08, 1st Dept, 4-23-13

 

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Proof Requirements for “Breach of Employment Contract” and “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of the contract, and resulting damages …. “The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'” …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” … .  * * *

…”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'” …. To recover under that article, “a plaintiff must first demonstrate that he or she is an employee entitled to its protections” … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, “[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 2nd Dept, 4-17-13

 

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“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” …. The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . “Although no one [factor] is decisive,’ the question of who controls and directs the manner, details and ultimate result of the employee’s work’ is a significant and weighty feature’ of the analysis” …. The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of the injured worker’s employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

 

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Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner’s employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that “[d]isrespect and brutality of prisoners cannot and will not be tolerated.” Even if there is mitigating evidence that could support a different result –  such  as petitioner’s otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner’s position as a correction officer and a Sheriff’s Emergency Response Team member and the serious nature of petitioner’s misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner’s failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13

 

 

“Out-of-Title” Work Did Not Warrant Higher Pay

Petitioner was a sergeant at Butler Alcohol and Substance Abuse Correctional Facility and he alleged he was assigned as shift supervisor, requiring him to perform the work of a correction lieutenant.  In upholding a determination that petitioner’s “out-of-title” work did not entitle him to more pay, the Third Department noted:

While Civil Service Law § 61 (2) seemingly provides an “unqualified prohibition against nonemergency out-of-title work,1 case law has made the standard somewhat more flexible based on practicality” ….   “Not all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to petitioner[‘s] title[] and/or  are similar in nature to, or a reasonable outgrowth of, the duties listed in petitioner[‘s] job specifications” … . “‘[A]n employee’s performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law § 61 (2) where such functions were substantially similar to those detailed in his or her job description'” … .  Matter of New York State Correctional Officers … v Governor’s Office of Employee Relations, et al, 515409, 515410, 3rd Dept, 4-11-13

 

 

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Procedure for Testing Adequacy of Causes of Action in Article 78 Petition; Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it “has made a good faith determination based on economic considerations” … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position “was motivated by reasons other than a desire to promote institutional efficiency and economy” and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13

 

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Sexual Harassment Created Hostile Work Environment/Firing Was Impermissible Retaliation 

The Third Department upheld a finding by the New York State Division of Human Rights that petitioner, the owner of a restaurant, had created a hostile work environment and had retaliated against two female employees by firing them after they filed sexual harassment complaints.  Matter of West Taghanic Diner, II, Inc v NYS Division of Human Rights, 514133, 3rd Dept 4-4-13

 

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