Laws of 2011, Ch 473 , §1, amended CPLR 306-b, effective January 1, 2012, to provide that service be made within 120 days "after commencement of the action or proceeding." CPLR 306-b formerly required service of the summons and complaint, summons with notice, third-party summons and complaint, petition with notice of petition or order to show cause within 120 days after filing, with appropriate modifications where the statute of limitations is four months or less.
CPLR 306-b now provides:
§ 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, wherethe applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.
Laws of 2011, Ch 473 , §2, amended CPLR 2101(f), effective January 1, 2012, to increase the time for raising objections to defects in form of a paper. The time in which an objection to a defect in form must be raised has been two days from receipt of the paper objected to. The period of time was amended from "two" to "fifteen" days.
CPLR 2101(f) now provides:
(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.
Laws of 2011, Ch 473 , §3, amended CPLR 3025(b), effective January 1, 2012 , to require a party moving to amend its pleadings to attach a copy of the proposed amended pleading to its motion to amend that pleading, clearly showing the proposed changes to the pleading.
CPLR 3025(b) now provides:
(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.
Laws of 2011, Ch 473 , §4, amended CPLR 3217(a)(1), effective January 1, 2012, to extend the time period in which, at the outset of a case, a voluntary discontinuance may be obtained without need for a court order or a stipulation of settlement. Formerly, a party alleging a cause of action in a complaint, counterclaim, cross-claim, or petition could only unilaterally discontinue it without court order or stipulation by serving and filing the requisite notice on all parties "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier..."CPLR 3217(a)(1). CPLR 3217(a)(1) was amended to permit a voluntary discontinuance without court order or stipulation before the responsive pleading is served or within 20 days after service of the pleading of the claim, whichever is later.
CPLR 3217(a)(1) now provides:
1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the leading asserting the claim and filing the notice with proof of service with the clerk of the court; or
Thứ Tư, 21 tháng 9, 2011
Thứ Ba, 20 tháng 9, 2011
Heritage Protection Laws in Uganda
The 16th annual triennial meeting of ICOM’s conservation committee took place in Lisbon, Portugal this week. Many outstanding papers were presented.
I was privileged to moderate the Legal Issues in Conservation Working Group session. One paper of interest dealt with cultural heritage laws in Uganda. Frederick Nsibambi of Cross-Cultural Foundation of Uganda spoke of the laws covering the protection of heritage, commenting that a 1967 statute simply fined a person $1 for a violation. More about his organization’s projects can be found at crossculturalfoundation.or.ug.
Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.
I was privileged to moderate the Legal Issues in Conservation Working Group session. One paper of interest dealt with cultural heritage laws in Uganda. Frederick Nsibambi of Cross-Cultural Foundation of Uganda spoke of the laws covering the protection of heritage, commenting that a 1967 statute simply fined a person $1 for a violation. More about his organization’s projects can be found at crossculturalfoundation.or.ug.
Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.
Thứ Sáu, 16 tháng 9, 2011
Perez v State of New York: Schneiderman's Office Loses, Defendants Found To Be 100% Liable
Perez v State of New York
2011 NY Slip Op 21321
Decided on August 3, 2011
Ct Cl,
Marin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Decided on August 3, 2011
Ct Cl,
Jeanette Perez, Claimant,
against
The State of New York, Defendant.
108710
APPEARANCES:
For Claimant:
Gary E. Divis, Esq.
For Defendant:
Eric T. Schneiderman, Attorney General
By: Suzette C. Rivera, AAG
Alan C. Marin, J.
This is the decision following the liability trial of Jeanette Perez's claim against the State of New York that while incarcerated in Bayview Correctional Facility, correction officer Peter Zawislak had sex with her on multiple occasions. Sexual encounters between a correction officer and an inmate cannot be consensual (Penal Law §130.05.3(e)).
The parties do not dispute that sex between the two occurred.[FN1] Officer Zawislak pled guilty to Rape in the Third Degree and was sentenced to one to three years imprisonment (cl exh 6). Further, Ms. Perez gave birth to a son on October 15, 2001, and Mr. Zawislak acknowledged that he was the father. The case here turns on what the facility administration could have done to prevent the statutory, non-consensual sexual encounters.
Bayview is a seven-story medium security facility located at 550 West 20th Street in Manhattan. There were inmate housing units or dorms on floors 3, 5, 6 and 7; the third floor unit [*2]was an honor dorm classified as minimum security. The facility also had an annex for work-release inmates.
Mr. Zawislak became a correction officer in 1996; his first assignment was at Sing Sing, after which he was transferred to Bedford Hills Correctional Facility, a maximum security women's prison where he met Perez. The two had no sexual relationship at Bedford Hills; Zawislak testified that, "we talked a lot, and that was about it." The officer transferred to Bayview in December of 1998, which was about the same time that Perez arrived there.
At Bayview, Ms. Perez, who was serving a term of 6 to 12 years for armed robbery, was initially placed in a regular dorm on the sixth floor that housed about 50 inmates. At the beginning of 1999, Perez was moved to the honor dorm. The honor dorm at the time housed about 10 to 12 inmates in rooms, not cells, one inmate to a room.[FN2] Each room had a door containing a window with a curtain. The inmate could keep the door open or shut, but the curtain could only be pulled over the window when the inmate was dressing. The rooms line two corridors that meet in a corner where the officer's station is situated.
The third floor also had a law library and a gym. According to the testimony of Kenneth Werbacher, Bayview's deputy superintendent for security, the library's hours were about 2 to 8 p.m., and it did not have an officer assigned there when open, and the gym was open from 3 p.m. to about 9 or 10 p.m. and was staffed with an officer. The gym officer could escort inmates up to the roof for an hour or so of exercise and fresh air. The roof is reached by taking an elevator to the 7th floor and then a flight of stairs.
Deputy Superintendent Werbacher explained that the third floor had an officer assigned for the second and third shifts, 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m., but not for the day shift because the inmates were out of the dorm at their jobs. However, such assigned officer on the honor dorm was, Werbacher testified, "what they call a contingency post; meaning that, if the officer was needed for something somewhere else, they could take him off that floor and leave it unmanned. That was the only housing unit like that."
Zawislak testified that at Bayview, he had held the posts of roundsman, gym officer and honor floor officer (the contingent post). Werbacher described a roundsman's duties as, "responsible for random patrols around the facility, who also picks up count slips at count times, and responds to emergencies." The deputy superintendent agreed that the roundsman had a set of keys and, "almost full range of the facility," and was not subject to increased supervision.
Zawislak added that his duties as roundsman at Bayview also included non-inmate related chores such as gassing up the vehicles or collecting garbage at the end of the shift, which he would be directed to do by radio. It was as a roundsman that he had first had sex with Perez late in the summer of 1999 and as a roundsman in March of 2001, that Zawislak was found trying to hide in Perez's room under her bunk or bed.
Training
Zawislak testified that at Bayview he had attended an in-service training course on working with female offenders, at which the correction officers in attendance were told that sexual contact in any form was illegal. Claimant's exhibit 3 is a form that was signed by [*3]Zawislak on May 5, 1999, in which he affirmed that he had attended, "the in-service training on working with female offenders," and that he had, "been informed of NY Penal Law 130.05, that it is a felony in New York State to engage in sexual activity with an inmate."
In addition to the scheduled training sessions, Deputy Werbacher testified that there were reminders, from time to time, at the beginning of shift lineups: "don't get involved." In addition, according to the deputy superintendent, he would on a quarterly basis give a speech to all shifts, "don't have sex with the inmates"; the correction officers were told that sex with an inmate was a Class E felony, and that they could do jail time.
A printout of the training courses taken by Zawislak lists an April 7, 1999 two-hour course, Sexual Harassment; the May 5, 1999 course, The Female Offender (four hours); an October 14, 1999 four-hour course, Inappropriate Behavior; and a June 20, 2000 four-hour course on sexual harassment. The last course (and probably the October 14, 1999 one) were given after Zawislak and Perez had begun having sex. (Def exh C). (See the 20-page course outlines entitled Avoiding Inappropriate Behavior Between Staff and Inmates and Working with Female Offenders, def exhs D and E).
In view of the aforementioned evidence and the fact that claimant's expert, Robert DeRosa, did not directly challenge same, the Court concludes that the training Zawislak received on sexual relationships between officers and inmates was sufficient and cannot serve as a basis for liability on the part of the defendant.
Supervision: Rules and Policy
As noted, the third floor dorm housed a much smaller inmate population than the other three floors with dorms. The women housed in the honor dorm were chosen through a process governed by a written procedure and criteria applied by a committee comprised of the deputy superintendent for programs, a captain, sergeant and the senior housing counselor (def exh U, p. 1).
Mr. DeRosa, at time of trial, associate director for security and risk manager at Manhattan College, explained that he had served 26 years with the New York City Department of Correction, starting as a correction officer and completing his service as chief of compliance management and special services. In the intervening years, he had been a captain, deputy warden of the Rose M. Singer Center (a 1,500 bed female detention facility), and warden of three City corrections facilities.
DeRosa criticized the roundsman's free-ranging assignment:
The ability to go through this building with keys, drawer keys from areas that are secure — the rule is security in jails is if it has a lock, lock it and if it's not occupied, I expect that door is locked and the last officer there is the person who secured it so therefore I don't really want a roundsman going through those areas again unless he finds something suspicious . . .
DeRosa stated in response to a question on whether DOCS [FN3] operations at Bayview were [*4]contrary to recognized principles or standards: " [F]or hours, based on the testimony and the documents I've read, the officer's not present, he's been reassigned or she's been reassigned to other duties off the unit so now those prisoners are unsupervised." He testified that, "when you have prisoners unsupervised it's just a lot of things that can happen . . ." But as DeRosa conceded on cross-examination, he did not review any DOCS policies or Bayview policies:
Q. And is there a direct policy that Bayview facility failed to abide by in their supervision of the inmates at that facility?
A. I don't have any direct policy.
Mr. DeRosa testified that there should have been cameras positioned on the dormitory corridors so that supervisory staff could see who was entering the rooms. The only cameras Bayview had at the time were mounted by the street-level entrance. DeRosa could point to no rule or standard on cameras, and he agreed that the requirement for them in the City of New York was pursuant to a federal consent decree.
Claimant further contended that the contingent nature of the security coverage on the honor dorm violated the rules of the State Commission of Correction, which provides that "active supervision" shall be maintained in all facility housing areas (9 NYCRR § 7003.3(a)). However by its terms, Part 7003 applies to local correctional facilities, not state prisons (§7003.1).
In response, claimant pointed to Sanchez v State of New York, 99 NY2d 247, 251 n2 (2002), in which the Court of Appeals noted that although the Commission's rules "apply to county jails and penitentiaries, not state prisons, the [claimant's] expert concluded that they are relevant in establishing a reasonable standard of supervision, and they are thus also relevant to our foreseeability analysis [as to an inmate-on-inmate assault]." With that said, while the expert the Court of Appeals referred to in Sanchez was Robert DeRosa, Mr. DeRosa in his testimony here did not cite the Commission's standards; the issue arose during the cross-examination of defendant's expert.
Moreover, even assuming that Part 7003's definition of active supervision could apply to state facilities, its application would still be uncertain. The Part defines active supervision to include: (1) the uninterrupted ability to communicate orally with the inmate; (2) the conducting of supervisory visits at 30-minute intervals; (3) the ability to respond immediately to emergency situations and; (4) the continuous occupation of a security post within a housing area. Item (4) contains qualifying language that the staffing of the security post shall be for a housing area with more than 20 inmates,[FN4] which was not the case for Bayview's honor dorm.
Defendant called as an expert Martin Horn, a professor at John Jay College of Criminal Justice, who had been a superintendent of a state correctional facility, executive assistant to the DOCS commissioner, Secretary of Corrections for Pennsylvania, Corrections Commissioner for the City of New York and a commissioner on accreditation for the American Correctional Association. [*5]
Mr. Horn testified that having the third floor covered by a contingency post rather than a fixed post was appropriate.[FN5] The purpose is to provide for a more efficient utilization of staff. This is a small unit, the kind of dorm, "reserved for low security inmates with a high degree of maturity and responsibility," and as noted earlier, this particular unit is classified as minimum security. And further, "[i]t is intended to provide individual inmates with an opportunity to experiment with [a] greater degree of freedom, to give them a great likelihood of success upon release, to allow them to be self-governing and self-directing."
In view of the foregoing, the Court concludes that the rules and policies then extant at Bayview cannot, per se, serve as a basis for liability on the part of the defendant.
Supervision: Zawislak and Perez
As for the actual supervision involving Zawislak and Perez, specific knowledge by the defendant is not required. Rather, if it can be shown that defendant reasonably should have known of the relationship, liability will obtain - - a standard with which defendant's expert concurred.[FN6]
There were some inconsistencies in the testimony, but certain basic elements went essentially unchallenged. Zawislak first had sex with Perez in the late summer of 1999 in the C stairway off the third floor.[FN7] He had directed Perez to clean the stairs, without, he testified, any immediate ulterior motive.
Until they were caught on March 10, 2001, the two had had sexual relations at least 20 times, some 15 times in Perez's room in her bed, but also in another stairway, the gym, the rooftop and the officer's station on the third floor. Moreover, Zawislak testified that, "Well we had been kissing regularly before the first time we engaged in anything, and things got hot and [*6]heavy, and that's how it happened."
Zawislak stated that as of April 1999, "Well we cared very much for each other before that. We already had romantic feelings for each other . . . [as of] about April of 99." Zawislak testified that he had told Officer Sterling, "could have been July, August of 1999" that he had feelings for Perez, but that they were not having sex. Zawislak recalls that Sterling replied, "be careful."
Zawislak implied that he and Perez had exchanged notes more than once:
Q. Did you know that it was wrong to have any sort of personal relationship, intimate relationship, aside from sex, with an inmate?
A. Romantically you mean? Like - - as far as love notes and that kind of thing?
Q. Yes.
A. I knew the Department frowned upon it, yeah.
Q. And you still pursued this avenue?
A. . . .Yes.
Zawislak had given Perez a wedding band. This may not have alerted the Bayview staff to anything untoward inasmuch as Perez already had been allowed a, "yellow metal wedding band." See defendant's Exhibit K, which is the authorization therefor, signed by Perez and two staff members, with the date issued filled in as December 30, 1998.
Zawislak testified that when he entered the third floor on his roundsman's duties, he was not required to sign the logbook at the officer's desk, but Deputy Werbacher testified that the roundsman would have to sign the logbook in the honor unit. In any event, DeRosa conceded that as to having had Zawislak sign the logbook, "I didn't say it was going to stop it," although claimant's expert observed, "As a roundsman they didn't seem to know where he was, they relied on the radio, but the logbook is an option [as is radioing in his location to be logged] . . . They didn't do that, so he was free to roam the building and access areas without any supervision." With that said, DeRosa did not refer to any rules, standards or policies that were not adhered to.
Sergeant Sylvester Johnson took the stand at trial, at which time he had nearly 30 years with the Department and had been at Bayview, serving as a sergeant, from 1995 to 2005. He testified that he had no prior knowledge of an inappropriate sexual relationship between the two, and if he had, he would have reported it immediately to his superiors. Sergeant Johnson also stated that it was inappropriate for an officer to just sit and talk with an inmate in her room unless it is security-related.
Johnson said he walked through the floor twice a shift, a lieutenant does so once or twice [*7]and other walk-throughs would be done at various times during the day by each of the three deputy superintendents (for security, administration and programs). In addition, according to Johnson, the "charge sergeant" might walk through. Sergeant Johnson made this point about the doors to the inmate rooms on the third floor:
[U]sually, on the honor floor . . . most doors are open. So when the officer or the roundsman then makes the rounds, normally when he walks down the corridor, he sees that the door is open. If the door is closed for some reason, he would knock on the door and see if anyone would answer, see if anyone's in the room. If the person didn't answer, he would normally open up the door.
As for Ms. Perez, she has a fairly expansive view of what staff knew about the relationship. While there may be an incentive for Zawislak to help Perez recover, inasmuch as an award of money would likely be of benefit to the child they had together, his demeanor was credible and he had pled in open court to the same actions.
For her part, claimant was less credible, and while her defensiveness on the stand to the point of belligerence ("but did you not hear what I just said") may show a spontaneous truth-telling that was not a pat, prepared-for-trial presentation, her testimony in light of all the evidence in this case coupled with her admission that she lied in her 2009 letter to the federal judge [FN8] handling the parallel federal civil suit [FN9] effectively undercut the credibility of her uncorroborated testimony on who she told or who otherwise knew or might have known of the relationship. The Court will not rely on this testimony.
Avoiding Supervision
Werbacher did not provide much of an analysis as to how the two managed to avoid detection, but did remark on it at his deposition of October 14, 2010, about which he was asked at trial:
Q. Do you accept that Zawislak avoided being caught by a supervisor making rounds because of luck, or that he was good and quick at what he did?
A. All of that.
Werbacher testified that the count of inmates is done at regular times, for uniformity around the State, but that the rounds of supervisors were conducted, "irregularly"; the implication being that the officers being supervised did not know when their superiors would be on site.
Consider Zawislak's testimony on the issue. It is unclear from all the evidence whether the only time he had sex with Perez in her room was when Zawislak was the contingency officer; Zawislak's following testimony strongly suggests it was, although, for example, Werbacher's [*8]March 21, 2001 memo to the Inspector General's office, following the discovery of Zawislak in claimant's room on March 10, includes the following: "Officer Hill was the unit officer but, due to it being a contingency post, was off the unit at the time" (def exh W).
Q. Do you recall the number of times you had sex with her in her bed?
A. At least fifteen.
Q. When you had sex with her in her bed was there a correction officer on post, at the officer's station?
A. No.
Q. How did you manage to be on the honor floor, during those occasions, to have sex with [the] Claimant?
A. I was the officer assigned there.
Zawislak's testimony continues on the supervision:
Q. Were there any supervisors checking on you?
A. They do their rounds and after that, that would be it.
Q. How did you avoid being caught when they went on their rounds?
A. They just came at different times, and then usually they just showed up once or twice and then that would be it . . . They already signed the logbook and then left, and that was it.
Perez's testimony is less suspect on the scheduling of the roof and gym and can be used. She explained that the roof "runs" every hour but if no one showed by quarter past the hour, she and Zawislak had the next 45 minutes. Perez testified that they were able to have (oral) sex in the gym without being caught because, "he'd picked me up or called for me after the inmates would go back to the units."
***
What we have here is a striking asymmetry of knowledge. An officer with some three years of experience when this all began knew where everyone was - - or at least enough to avoid them - - and the staff who were supposed to know where he was invariably did not. In fact, the illegal relationship was finally uncovered when, "Sgt. Green went to the floor specifically [*9]looking for Zawislak as he had been calling for him but could not locate him" (def exh W).
Before the sex began, there were examples that Zawislak and Perez had gone beyond the proper officer-inmate interaction. The Employees' Manual, §7.18, provided, in part, that, "Employees shall maintain a quiet, firm demeanor in their contacts with inmates with no undue familiarity or hostility" (cl exh 1).
Deputy Superintendent Werbacher's memo of March 21, 2001 to the Inspector General [FN10] provides, "Although Hill could not verify the incident, he did state that Zawislak often visits the unit, talks to the inmate in question (Perez, 97G0760 room 311) and then leaves through the back door" [def exh W]. Werbacher testified that such actions by Zawislak violated at least §2.15 of the Employees' Manual (cl exh 1), which among other things, banned any conversation, association or relationship by an employee with an inmate unless it was part of the employee's duties, and should have been reported to the supervisor, but as Werbacher said, "obviously he didn't. "
The primary location for sexual relations was claimant's room. As Sergeant Johnson testified, if the door were shut, an officer would knock on it to see if anyone would answer and then if there was no answer, open it. We did not hear any testimony that while the two were in Perez's room with the door closed, only Perez answered and was able to deflect an officer's inquiry. Testimony was elicited of a number of supervisory staff going through the honor dorm several times a day on a random basis. It seems less than likely that they never came on the floor when the door was shut and the two were behind it.
To this trier of fact, the explanation from Werbacher that Zawislak was "good and quick," as well as lucky, is not persuasive. This statement naturally leads to the inquiry as to why no one else on the Bayview staff was good and quick from a supervisory vantage. Citing luck as a factor is telling because, given the frequency of the encounters between the two and the unscheduled supervisory tours through the third floor, it sounds as if Werbacher himself has a difficult time finding a valid operational basis for how detection was avoided for so long.
In view of the foregoing, the Court finds that claimant satisfies her burden of proof by a fair preponderance of the credible evidence: it was more likely than not that defendant should have known of the sexual relationship between Officer Zawislak and Claimant Perez. The Clerk of the Court is directed to enter judgment for 100% liability against defendant State of New York.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
New York, New York [*10]
August 3, 2011
ALAN C. MARIN
Judge of the Court of Claims
Footnotes
Footnote 1:Compare Thompson v State of New York, Ct Cl, August 10, 2007 (unreported, claim no. 108000, UID #2007-010-016, Ruderman, J.), affd 63 AD3d 825 (2d Dept 2009).
Footnote 2: Claimant's exhibit 7 is a diagram of the third floor layout showing 13 rooms.
Footnote 3: "DOCS" for Department of Correctional Services; its name was changed by Chapter 62 of the Laws of 2011 to the Department of Corrections and Community Supervision, reflecting the assumption of parole functions.
Footnote 4: 9 NYCRR §7003.2 (c)(4).
Footnote 5: Defendant's exhibit V is the job description for the third floor contingency post; among the 25 listed duties are to, "Respond immediately to all emergency and evacuation procedures."
Footnote 6: Q. In your use of the term foreseeable, do you believe you consider . . . what the Department of Corrections reasonably should have known, as opposed to . . . A. [Interposing] What they actually knew.
Q. Actually knew? A. Right, what they reasonably should have known.
Footnote 7: The testimony differed on when in 1999 the two first had sex. At trial, Zawislak initially said it was August or September of 1999, and then later in his testimony, August. According to his June 25, 2001 statement to the New York County District Attorney, the sexual relationship began in October or November of 1999. Defendant's exhibit T is Zawislak's videotaped statement to the DA in 2001; this Court ruled it can only be used for impeachment purposes.
Zawislak stated that they had sex 15 times in claimant's room plus the other locations mentioned, typically once. Perez said when asked about the frequency of sex, "Every time he was on the unit."
Footnote 8: Claimant's letter was dated February 14, 2009 and addressed to the Hon. Gabriel W. Gorenstein, a United States magistrate judge (def exh R).
Footnote 9: Regarding informing the federal judge whether Perez had spoken to her lawyers, "that part I lied about."
Footnote 10: The DOCS policy statewide was that officers who learned of such activity were to inform the appropriate official, here Werbacher, or the facility superintendent, and the former would put together the information he had and forward it to the IG's office, which had a sex crimes unit. At trial, we heard from two senior investigators of the IG's office, Linda Carrington and Faith Watson.
2011 NY Slip Op 21321
Decided on August 3, 2011
Ct Cl,
Marin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Decided on August 3, 2011
Ct Cl,
Jeanette Perez, Claimant,
against
The State of New York, Defendant.
108710
APPEARANCES:
For Claimant:
Gary E. Divis, Esq.
For Defendant:
Eric T. Schneiderman, Attorney General
By: Suzette C. Rivera, AAG
Alan C. Marin, J.
This is the decision following the liability trial of Jeanette Perez's claim against the State of New York that while incarcerated in Bayview Correctional Facility, correction officer Peter Zawislak had sex with her on multiple occasions. Sexual encounters between a correction officer and an inmate cannot be consensual (Penal Law §130.05.3(e)).
The parties do not dispute that sex between the two occurred.[FN1] Officer Zawislak pled guilty to Rape in the Third Degree and was sentenced to one to three years imprisonment (cl exh 6). Further, Ms. Perez gave birth to a son on October 15, 2001, and Mr. Zawislak acknowledged that he was the father. The case here turns on what the facility administration could have done to prevent the statutory, non-consensual sexual encounters.
Bayview is a seven-story medium security facility located at 550 West 20th Street in Manhattan. There were inmate housing units or dorms on floors 3, 5, 6 and 7; the third floor unit [*2]was an honor dorm classified as minimum security. The facility also had an annex for work-release inmates.
Mr. Zawislak became a correction officer in 1996; his first assignment was at Sing Sing, after which he was transferred to Bedford Hills Correctional Facility, a maximum security women's prison where he met Perez. The two had no sexual relationship at Bedford Hills; Zawislak testified that, "we talked a lot, and that was about it." The officer transferred to Bayview in December of 1998, which was about the same time that Perez arrived there.
At Bayview, Ms. Perez, who was serving a term of 6 to 12 years for armed robbery, was initially placed in a regular dorm on the sixth floor that housed about 50 inmates. At the beginning of 1999, Perez was moved to the honor dorm. The honor dorm at the time housed about 10 to 12 inmates in rooms, not cells, one inmate to a room.[FN2] Each room had a door containing a window with a curtain. The inmate could keep the door open or shut, but the curtain could only be pulled over the window when the inmate was dressing. The rooms line two corridors that meet in a corner where the officer's station is situated.
The third floor also had a law library and a gym. According to the testimony of Kenneth Werbacher, Bayview's deputy superintendent for security, the library's hours were about 2 to 8 p.m., and it did not have an officer assigned there when open, and the gym was open from 3 p.m. to about 9 or 10 p.m. and was staffed with an officer. The gym officer could escort inmates up to the roof for an hour or so of exercise and fresh air. The roof is reached by taking an elevator to the 7th floor and then a flight of stairs.
Deputy Superintendent Werbacher explained that the third floor had an officer assigned for the second and third shifts, 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m., but not for the day shift because the inmates were out of the dorm at their jobs. However, such assigned officer on the honor dorm was, Werbacher testified, "what they call a contingency post; meaning that, if the officer was needed for something somewhere else, they could take him off that floor and leave it unmanned. That was the only housing unit like that."
Zawislak testified that at Bayview, he had held the posts of roundsman, gym officer and honor floor officer (the contingent post). Werbacher described a roundsman's duties as, "responsible for random patrols around the facility, who also picks up count slips at count times, and responds to emergencies." The deputy superintendent agreed that the roundsman had a set of keys and, "almost full range of the facility," and was not subject to increased supervision.
Zawislak added that his duties as roundsman at Bayview also included non-inmate related chores such as gassing up the vehicles or collecting garbage at the end of the shift, which he would be directed to do by radio. It was as a roundsman that he had first had sex with Perez late in the summer of 1999 and as a roundsman in March of 2001, that Zawislak was found trying to hide in Perez's room under her bunk or bed.
Training
Zawislak testified that at Bayview he had attended an in-service training course on working with female offenders, at which the correction officers in attendance were told that sexual contact in any form was illegal. Claimant's exhibit 3 is a form that was signed by [*3]Zawislak on May 5, 1999, in which he affirmed that he had attended, "the in-service training on working with female offenders," and that he had, "been informed of NY Penal Law 130.05, that it is a felony in New York State to engage in sexual activity with an inmate."
In addition to the scheduled training sessions, Deputy Werbacher testified that there were reminders, from time to time, at the beginning of shift lineups: "don't get involved." In addition, according to the deputy superintendent, he would on a quarterly basis give a speech to all shifts, "don't have sex with the inmates"; the correction officers were told that sex with an inmate was a Class E felony, and that they could do jail time.
A printout of the training courses taken by Zawislak lists an April 7, 1999 two-hour course, Sexual Harassment; the May 5, 1999 course, The Female Offender (four hours); an October 14, 1999 four-hour course, Inappropriate Behavior; and a June 20, 2000 four-hour course on sexual harassment. The last course (and probably the October 14, 1999 one) were given after Zawislak and Perez had begun having sex. (Def exh C). (See the 20-page course outlines entitled Avoiding Inappropriate Behavior Between Staff and Inmates and Working with Female Offenders, def exhs D and E).
In view of the aforementioned evidence and the fact that claimant's expert, Robert DeRosa, did not directly challenge same, the Court concludes that the training Zawislak received on sexual relationships between officers and inmates was sufficient and cannot serve as a basis for liability on the part of the defendant.
Supervision: Rules and Policy
As noted, the third floor dorm housed a much smaller inmate population than the other three floors with dorms. The women housed in the honor dorm were chosen through a process governed by a written procedure and criteria applied by a committee comprised of the deputy superintendent for programs, a captain, sergeant and the senior housing counselor (def exh U, p. 1).
Mr. DeRosa, at time of trial, associate director for security and risk manager at Manhattan College, explained that he had served 26 years with the New York City Department of Correction, starting as a correction officer and completing his service as chief of compliance management and special services. In the intervening years, he had been a captain, deputy warden of the Rose M. Singer Center (a 1,500 bed female detention facility), and warden of three City corrections facilities.
DeRosa criticized the roundsman's free-ranging assignment:
The ability to go through this building with keys, drawer keys from areas that are secure — the rule is security in jails is if it has a lock, lock it and if it's not occupied, I expect that door is locked and the last officer there is the person who secured it so therefore I don't really want a roundsman going through those areas again unless he finds something suspicious . . .
DeRosa stated in response to a question on whether DOCS [FN3] operations at Bayview were [*4]contrary to recognized principles or standards: " [F]or hours, based on the testimony and the documents I've read, the officer's not present, he's been reassigned or she's been reassigned to other duties off the unit so now those prisoners are unsupervised." He testified that, "when you have prisoners unsupervised it's just a lot of things that can happen . . ." But as DeRosa conceded on cross-examination, he did not review any DOCS policies or Bayview policies:
Q. And is there a direct policy that Bayview facility failed to abide by in their supervision of the inmates at that facility?
A. I don't have any direct policy.
Mr. DeRosa testified that there should have been cameras positioned on the dormitory corridors so that supervisory staff could see who was entering the rooms. The only cameras Bayview had at the time were mounted by the street-level entrance. DeRosa could point to no rule or standard on cameras, and he agreed that the requirement for them in the City of New York was pursuant to a federal consent decree.
Claimant further contended that the contingent nature of the security coverage on the honor dorm violated the rules of the State Commission of Correction, which provides that "active supervision" shall be maintained in all facility housing areas (9 NYCRR § 7003.3(a)). However by its terms, Part 7003 applies to local correctional facilities, not state prisons (§7003.1).
In response, claimant pointed to Sanchez v State of New York, 99 NY2d 247, 251 n2 (2002), in which the Court of Appeals noted that although the Commission's rules "apply to county jails and penitentiaries, not state prisons, the [claimant's] expert concluded that they are relevant in establishing a reasonable standard of supervision, and they are thus also relevant to our foreseeability analysis [as to an inmate-on-inmate assault]." With that said, while the expert the Court of Appeals referred to in Sanchez was Robert DeRosa, Mr. DeRosa in his testimony here did not cite the Commission's standards; the issue arose during the cross-examination of defendant's expert.
Moreover, even assuming that Part 7003's definition of active supervision could apply to state facilities, its application would still be uncertain. The Part defines active supervision to include: (1) the uninterrupted ability to communicate orally with the inmate; (2) the conducting of supervisory visits at 30-minute intervals; (3) the ability to respond immediately to emergency situations and; (4) the continuous occupation of a security post within a housing area. Item (4) contains qualifying language that the staffing of the security post shall be for a housing area with more than 20 inmates,[FN4] which was not the case for Bayview's honor dorm.
Defendant called as an expert Martin Horn, a professor at John Jay College of Criminal Justice, who had been a superintendent of a state correctional facility, executive assistant to the DOCS commissioner, Secretary of Corrections for Pennsylvania, Corrections Commissioner for the City of New York and a commissioner on accreditation for the American Correctional Association. [*5]
Mr. Horn testified that having the third floor covered by a contingency post rather than a fixed post was appropriate.[FN5] The purpose is to provide for a more efficient utilization of staff. This is a small unit, the kind of dorm, "reserved for low security inmates with a high degree of maturity and responsibility," and as noted earlier, this particular unit is classified as minimum security. And further, "[i]t is intended to provide individual inmates with an opportunity to experiment with [a] greater degree of freedom, to give them a great likelihood of success upon release, to allow them to be self-governing and self-directing."
In view of the foregoing, the Court concludes that the rules and policies then extant at Bayview cannot, per se, serve as a basis for liability on the part of the defendant.
Supervision: Zawislak and Perez
As for the actual supervision involving Zawislak and Perez, specific knowledge by the defendant is not required. Rather, if it can be shown that defendant reasonably should have known of the relationship, liability will obtain - - a standard with which defendant's expert concurred.[FN6]
There were some inconsistencies in the testimony, but certain basic elements went essentially unchallenged. Zawislak first had sex with Perez in the late summer of 1999 in the C stairway off the third floor.[FN7] He had directed Perez to clean the stairs, without, he testified, any immediate ulterior motive.
Until they were caught on March 10, 2001, the two had had sexual relations at least 20 times, some 15 times in Perez's room in her bed, but also in another stairway, the gym, the rooftop and the officer's station on the third floor. Moreover, Zawislak testified that, "Well we had been kissing regularly before the first time we engaged in anything, and things got hot and [*6]heavy, and that's how it happened."
Zawislak stated that as of April 1999, "Well we cared very much for each other before that. We already had romantic feelings for each other . . . [as of] about April of 99." Zawislak testified that he had told Officer Sterling, "could have been July, August of 1999" that he had feelings for Perez, but that they were not having sex. Zawislak recalls that Sterling replied, "be careful."
Zawislak implied that he and Perez had exchanged notes more than once:
Q. Did you know that it was wrong to have any sort of personal relationship, intimate relationship, aside from sex, with an inmate?
A. Romantically you mean? Like - - as far as love notes and that kind of thing?
Q. Yes.
A. I knew the Department frowned upon it, yeah.
Q. And you still pursued this avenue?
A. . . .Yes.
Zawislak had given Perez a wedding band. This may not have alerted the Bayview staff to anything untoward inasmuch as Perez already had been allowed a, "yellow metal wedding band." See defendant's Exhibit K, which is the authorization therefor, signed by Perez and two staff members, with the date issued filled in as December 30, 1998.
Zawislak testified that when he entered the third floor on his roundsman's duties, he was not required to sign the logbook at the officer's desk, but Deputy Werbacher testified that the roundsman would have to sign the logbook in the honor unit. In any event, DeRosa conceded that as to having had Zawislak sign the logbook, "I didn't say it was going to stop it," although claimant's expert observed, "As a roundsman they didn't seem to know where he was, they relied on the radio, but the logbook is an option [as is radioing in his location to be logged] . . . They didn't do that, so he was free to roam the building and access areas without any supervision." With that said, DeRosa did not refer to any rules, standards or policies that were not adhered to.
Sergeant Sylvester Johnson took the stand at trial, at which time he had nearly 30 years with the Department and had been at Bayview, serving as a sergeant, from 1995 to 2005. He testified that he had no prior knowledge of an inappropriate sexual relationship between the two, and if he had, he would have reported it immediately to his superiors. Sergeant Johnson also stated that it was inappropriate for an officer to just sit and talk with an inmate in her room unless it is security-related.
Johnson said he walked through the floor twice a shift, a lieutenant does so once or twice [*7]and other walk-throughs would be done at various times during the day by each of the three deputy superintendents (for security, administration and programs). In addition, according to Johnson, the "charge sergeant" might walk through. Sergeant Johnson made this point about the doors to the inmate rooms on the third floor:
[U]sually, on the honor floor . . . most doors are open. So when the officer or the roundsman then makes the rounds, normally when he walks down the corridor, he sees that the door is open. If the door is closed for some reason, he would knock on the door and see if anyone would answer, see if anyone's in the room. If the person didn't answer, he would normally open up the door.
As for Ms. Perez, she has a fairly expansive view of what staff knew about the relationship. While there may be an incentive for Zawislak to help Perez recover, inasmuch as an award of money would likely be of benefit to the child they had together, his demeanor was credible and he had pled in open court to the same actions.
For her part, claimant was less credible, and while her defensiveness on the stand to the point of belligerence ("but did you not hear what I just said") may show a spontaneous truth-telling that was not a pat, prepared-for-trial presentation, her testimony in light of all the evidence in this case coupled with her admission that she lied in her 2009 letter to the federal judge [FN8] handling the parallel federal civil suit [FN9] effectively undercut the credibility of her uncorroborated testimony on who she told or who otherwise knew or might have known of the relationship. The Court will not rely on this testimony.
Avoiding Supervision
Werbacher did not provide much of an analysis as to how the two managed to avoid detection, but did remark on it at his deposition of October 14, 2010, about which he was asked at trial:
Q. Do you accept that Zawislak avoided being caught by a supervisor making rounds because of luck, or that he was good and quick at what he did?
A. All of that.
Werbacher testified that the count of inmates is done at regular times, for uniformity around the State, but that the rounds of supervisors were conducted, "irregularly"; the implication being that the officers being supervised did not know when their superiors would be on site.
Consider Zawislak's testimony on the issue. It is unclear from all the evidence whether the only time he had sex with Perez in her room was when Zawislak was the contingency officer; Zawislak's following testimony strongly suggests it was, although, for example, Werbacher's [*8]March 21, 2001 memo to the Inspector General's office, following the discovery of Zawislak in claimant's room on March 10, includes the following: "Officer Hill was the unit officer but, due to it being a contingency post, was off the unit at the time" (def exh W).
Q. Do you recall the number of times you had sex with her in her bed?
A. At least fifteen.
Q. When you had sex with her in her bed was there a correction officer on post, at the officer's station?
A. No.
Q. How did you manage to be on the honor floor, during those occasions, to have sex with [the] Claimant?
A. I was the officer assigned there.
Zawislak's testimony continues on the supervision:
Q. Were there any supervisors checking on you?
A. They do their rounds and after that, that would be it.
Q. How did you avoid being caught when they went on their rounds?
A. They just came at different times, and then usually they just showed up once or twice and then that would be it . . . They already signed the logbook and then left, and that was it.
Perez's testimony is less suspect on the scheduling of the roof and gym and can be used. She explained that the roof "runs" every hour but if no one showed by quarter past the hour, she and Zawislak had the next 45 minutes. Perez testified that they were able to have (oral) sex in the gym without being caught because, "he'd picked me up or called for me after the inmates would go back to the units."
***
What we have here is a striking asymmetry of knowledge. An officer with some three years of experience when this all began knew where everyone was - - or at least enough to avoid them - - and the staff who were supposed to know where he was invariably did not. In fact, the illegal relationship was finally uncovered when, "Sgt. Green went to the floor specifically [*9]looking for Zawislak as he had been calling for him but could not locate him" (def exh W).
Before the sex began, there were examples that Zawislak and Perez had gone beyond the proper officer-inmate interaction. The Employees' Manual, §7.18, provided, in part, that, "Employees shall maintain a quiet, firm demeanor in their contacts with inmates with no undue familiarity or hostility" (cl exh 1).
Deputy Superintendent Werbacher's memo of March 21, 2001 to the Inspector General [FN10] provides, "Although Hill could not verify the incident, he did state that Zawislak often visits the unit, talks to the inmate in question (Perez, 97G0760 room 311) and then leaves through the back door" [def exh W]. Werbacher testified that such actions by Zawislak violated at least §2.15 of the Employees' Manual (cl exh 1), which among other things, banned any conversation, association or relationship by an employee with an inmate unless it was part of the employee's duties, and should have been reported to the supervisor, but as Werbacher said, "obviously he didn't. "
The primary location for sexual relations was claimant's room. As Sergeant Johnson testified, if the door were shut, an officer would knock on it to see if anyone would answer and then if there was no answer, open it. We did not hear any testimony that while the two were in Perez's room with the door closed, only Perez answered and was able to deflect an officer's inquiry. Testimony was elicited of a number of supervisory staff going through the honor dorm several times a day on a random basis. It seems less than likely that they never came on the floor when the door was shut and the two were behind it.
To this trier of fact, the explanation from Werbacher that Zawislak was "good and quick," as well as lucky, is not persuasive. This statement naturally leads to the inquiry as to why no one else on the Bayview staff was good and quick from a supervisory vantage. Citing luck as a factor is telling because, given the frequency of the encounters between the two and the unscheduled supervisory tours through the third floor, it sounds as if Werbacher himself has a difficult time finding a valid operational basis for how detection was avoided for so long.
In view of the foregoing, the Court finds that claimant satisfies her burden of proof by a fair preponderance of the credible evidence: it was more likely than not that defendant should have known of the sexual relationship between Officer Zawislak and Claimant Perez. The Clerk of the Court is directed to enter judgment for 100% liability against defendant State of New York.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
New York, New York [*10]
August 3, 2011
ALAN C. MARIN
Judge of the Court of Claims
Footnotes
Footnote 1:Compare Thompson v State of New York, Ct Cl, August 10, 2007 (unreported, claim no. 108000, UID #2007-010-016, Ruderman, J.), affd 63 AD3d 825 (2d Dept 2009).
Footnote 2: Claimant's exhibit 7 is a diagram of the third floor layout showing 13 rooms.
Footnote 3: "DOCS" for Department of Correctional Services; its name was changed by Chapter 62 of the Laws of 2011 to the Department of Corrections and Community Supervision, reflecting the assumption of parole functions.
Footnote 4: 9 NYCRR §7003.2 (c)(4).
Footnote 5: Defendant's exhibit V is the job description for the third floor contingency post; among the 25 listed duties are to, "Respond immediately to all emergency and evacuation procedures."
Footnote 6: Q. In your use of the term foreseeable, do you believe you consider . . . what the Department of Corrections reasonably should have known, as opposed to . . . A. [Interposing] What they actually knew.
Q. Actually knew? A. Right, what they reasonably should have known.
Footnote 7: The testimony differed on when in 1999 the two first had sex. At trial, Zawislak initially said it was August or September of 1999, and then later in his testimony, August. According to his June 25, 2001 statement to the New York County District Attorney, the sexual relationship began in October or November of 1999. Defendant's exhibit T is Zawislak's videotaped statement to the DA in 2001; this Court ruled it can only be used for impeachment purposes.
Zawislak stated that they had sex 15 times in claimant's room plus the other locations mentioned, typically once. Perez said when asked about the frequency of sex, "Every time he was on the unit."
Footnote 8: Claimant's letter was dated February 14, 2009 and addressed to the Hon. Gabriel W. Gorenstein, a United States magistrate judge (def exh R).
Footnote 9: Regarding informing the federal judge whether Perez had spoken to her lawyers, "that part I lied about."
Footnote 10: The DOCS policy statewide was that officers who learned of such activity were to inform the appropriate official, here Werbacher, or the facility superintendent, and the former would put together the information he had and forward it to the IG's office, which had a sex crimes unit. At trial, we heard from two senior investigators of the IG's office, Linda Carrington and Faith Watson.
Leave Applications Must Raise All Federal Issues Raised on Appeal
Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:
1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one's clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained
We have previously held that if a defendant's leave application presents his claims in such a way that "eliminate[s] issues as to which review had been expressly requested," Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant's leave application "clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief," the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but "expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's [attached] brief.'" Morgan, 204 F.3d at 370-71 (citing defendant's letter application).In this case, Harris's leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that "this Court consider and review all issues outlined in appellant's [Appellate Division] brief." (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press "all" of the issues he had presented to the Fourth Department, including his affirmative defense claim.
Thứ Năm, 15 tháng 9, 2011
Khouli +3 Update: Salem Alshdaifat’s Coin Inventory Returned
Salem Alshdaifat’s attorney sent two letters on August 17, 2011 to complain that coins seized from his client were not properly cared for by Immigration and Customs Enforcement and to request an inspection of the items after an initial effort to examine the coins resulted in objections from federal officials. Alshdaifat’s lawyer asserted that his client possessed documentation to prove bona fide ownership of the property. The court treated the correspondence as a motion for return of property.
A federal district court in Michigan issued an order on September 6 that recognized the issue as moot. That is because the US Attorney’s Office for the Eastern District of New York and Alshdaifat’s attorney reportedly reached an agreement to return the inventory. The terms of that agreement are unknown.
Meanwhile, highlights of the letters written by Alshdaifat's legal counsel reveal the following:
• “[T]he agents took the entirety of Mr. Alshdaifat's business inventory and related documentation . . . .”
• “Mr. Aishdaifat operates an ancient coins business from his home in Orchard Lake, Michigan. He has been in the business of trading ancient coins ever since he left his home country of Jordan more than ten years ago. He has been a student of numismatics his entire life. On July 13, 2011, federal agents from Immigration and Customs Enforcement ("ICE") raided his home and seized his entire inventory of ancient coins, estimated at over 7,000 coins, and other property.”
• “ICE and CBP had decided to transfer custody to the ICE case agent in Brooklyn, New York all of the seized property from the four seizures of Mr. Alshdaifat's property that occurred in the Detroit area. These include: (1) the December 20, 2010 seizure of ancient coins at the Detroit Metro Airport; (2) the December 2010 seizure of two mail packages that were voluntarily brought by Mr. Alshdaifat to ICE offices in Detroit and [an agent]; (3) the February 2011 seizure of a Federal Express package for export to Singapore; and (4) the July 13, 2011 seizure of thousands of coins and other property from Mr. Alshdaifat's . . . home.” (For information related to most of these seizures, see the September 23, 2011 blog entry here).
• Additionally, through his attorney, Alshdaifat advised federal officials to store groups of coins “in open containers, not in closed plastic bags.” “The coins,” he said, “should also be stored in a dry environment, preferably with a dehumidifier.” He further recommended that authorities “[s]eparate the "diseased" coins from the rest. These coins can be identified by the green powdery substance on the surface of the coins. . . . The diseased coins should be handled with gloves, and when doing so agents should avoid exposure in closed areas with little air circulation.” Alshdaifat also advised that “[t]he silver and gold coins should be kept in individual coin holders” and that coins found in acid baths “needed to be washed in hot, running water and dried individually.” Finally, he requested that “[t]hose coins with soil incrustation should be separated from others with similar incrustation. Because soil taken from different places consists of various different minerals and it would be impossible to know if incrusted coins came from the same soil, those coins that are incrusted should simply be separated to avoid any chemical reaction from the interaction of different soil minerals.”
Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.
A federal district court in Michigan issued an order on September 6 that recognized the issue as moot. That is because the US Attorney’s Office for the Eastern District of New York and Alshdaifat’s attorney reportedly reached an agreement to return the inventory. The terms of that agreement are unknown.
Meanwhile, highlights of the letters written by Alshdaifat's legal counsel reveal the following:
• “[T]he agents took the entirety of Mr. Alshdaifat's business inventory and related documentation . . . .”
• “Mr. Aishdaifat operates an ancient coins business from his home in Orchard Lake, Michigan. He has been in the business of trading ancient coins ever since he left his home country of Jordan more than ten years ago. He has been a student of numismatics his entire life. On July 13, 2011, federal agents from Immigration and Customs Enforcement ("ICE") raided his home and seized his entire inventory of ancient coins, estimated at over 7,000 coins, and other property.”
• “ICE and CBP had decided to transfer custody to the ICE case agent in Brooklyn, New York all of the seized property from the four seizures of Mr. Alshdaifat's property that occurred in the Detroit area. These include: (1) the December 20, 2010 seizure of ancient coins at the Detroit Metro Airport; (2) the December 2010 seizure of two mail packages that were voluntarily brought by Mr. Alshdaifat to ICE offices in Detroit and [an agent]; (3) the February 2011 seizure of a Federal Express package for export to Singapore; and (4) the July 13, 2011 seizure of thousands of coins and other property from Mr. Alshdaifat's . . . home.” (For information related to most of these seizures, see the September 23, 2011 blog entry here).
• Additionally, through his attorney, Alshdaifat advised federal officials to store groups of coins “in open containers, not in closed plastic bags.” “The coins,” he said, “should also be stored in a dry environment, preferably with a dehumidifier.” He further recommended that authorities “[s]eparate the "diseased" coins from the rest. These coins can be identified by the green powdery substance on the surface of the coins. . . . The diseased coins should be handled with gloves, and when doing so agents should avoid exposure in closed areas with little air circulation.” Alshdaifat also advised that “[t]he silver and gold coins should be kept in individual coin holders” and that coins found in acid baths “needed to be washed in hot, running water and dried individually.” Finally, he requested that “[t]hose coins with soil incrustation should be separated from others with similar incrustation. Because soil taken from different places consists of various different minerals and it would be impossible to know if incrusted coins came from the same soil, those coins that are incrusted should simply be separated to avoid any chemical reaction from the interaction of different soil minerals.”
Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.
Thứ Bảy, 10 tháng 9, 2011
Legal Representation By The Corporation Counsel: What's The Standard?
Many people are charged with allegations of misconduct performed in their jobs or while at work, and they seek representation by the New York City Law Department or "Corporation Counsel". I do not understand how NYC randomly and often abusively denies this representation to teachers and other employees without any basis in fact or law.
In the case of teacher Steve Ostrin, he was accused of harassment of a female student in his class at Brooklyn Technical High School, but according to Theresa Europe, Director of the Gotcha Squad, the case was closed in 2007 and there was no investigation of the charges. Nonetheless Steve asked for, but was denied representation by the Corporation Counsel.
Thus any student or person so inclined can accuse anyone who is an employee of the City of New York of anything, and the NYC Law Department can deny legal representation saying that the allegation must be true, therefore the employee was acting outside of his/her employment and cannot be represented by the City.
Allegations are just that; they are not facts. This is what the "Gotcha Squad" is known for, and that is, scheduling 3020-a arbitration with allegations that have not been proven or voted on by a school board nor any outside party, and the single arbitrator not chosen by the charged party helps the NYC BOE "prove" the allegations and punish the employee. The rubber rooms were holding pens set up by the Board of Education and accepted by the UFT and NYSUT as proper placement for tenured employees who needed to be sitting somewhere while they were framed ....oops, I mean "investigated". When the public heard through the media that there were large warehouses of people getting paid for doing nothing, Mike Bloomberg, Joal Klein, Cathy Black, Dennis Walcott and the NYC BOE woke up to the fact that 100+ people in one place will talk with each other and organize opposition groups.
The NYC BOE (the name "Board of Education" for NYC was evidently never changed in court, so that's why I use 'BOE' and not 'DOE') also sets up parents who blow the whistle on fraud inside their child's school, and indemnify parents who attack other parents. When I, a parent of two daughters who attended Stuyvesant High School from 1999-2007, asked to see the financial records of the Stuyvesant High School Parents Association and I and the chinese parents were denied these records (and verbally abused by the officers of the PA who did not want us to have this information), I sued to get the records. The Corporation Counsel - namely Attorney Martin Bowe - called me up to tell me that the parents who were doing these heinous acts - Paula De Kock, Lauren Coleman-Lochner and Sumitake Nakazato - were now indemnified by him "because he wanted them to be." I asked him why he didnt indemnify me, and defend my efforts to get transparency with the finances of the Stuy PA, and he told me "We will NEVER,NEVER, defend you." [Does that mean that I dont have to pay City taxes?]
I started looking into this issue of representation by the Corporation Counsel. The pattern and practice seems to me to be completely arbitrary and capricious. Are there any attorneys out there who can describe to me how the Corporation Counsel works?
I'd really like to understand how the State of New York can prosecute its citizens with a huge Law firm funded by taxpayer funds.
Below are a few more examples and by the way, Stuart Lichten, a very good attorney I've heard, whose law firm is Schwartz, Lichten & Bright, is the husband of Senior NYSUT Attorney Maria Elena Gonzalez:
[*1]
In the case of teacher Steve Ostrin, he was accused of harassment of a female student in his class at Brooklyn Technical High School, but according to Theresa Europe, Director of the Gotcha Squad, the case was closed in 2007 and there was no investigation of the charges. Nonetheless Steve asked for, but was denied representation by the Corporation Counsel.
Thus any student or person so inclined can accuse anyone who is an employee of the City of New York of anything, and the NYC Law Department can deny legal representation saying that the allegation must be true, therefore the employee was acting outside of his/her employment and cannot be represented by the City.
Allegations are just that; they are not facts. This is what the "Gotcha Squad" is known for, and that is, scheduling 3020-a arbitration with allegations that have not been proven or voted on by a school board nor any outside party, and the single arbitrator not chosen by the charged party helps the NYC BOE "prove" the allegations and punish the employee. The rubber rooms were holding pens set up by the Board of Education and accepted by the UFT and NYSUT as proper placement for tenured employees who needed to be sitting somewhere while they were framed ....oops, I mean "investigated". When the public heard through the media that there were large warehouses of people getting paid for doing nothing, Mike Bloomberg, Joal Klein, Cathy Black, Dennis Walcott and the NYC BOE woke up to the fact that 100+ people in one place will talk with each other and organize opposition groups.
The NYC BOE (the name "Board of Education" for NYC was evidently never changed in court, so that's why I use 'BOE' and not 'DOE') also sets up parents who blow the whistle on fraud inside their child's school, and indemnify parents who attack other parents. When I, a parent of two daughters who attended Stuyvesant High School from 1999-2007, asked to see the financial records of the Stuyvesant High School Parents Association and I and the chinese parents were denied these records (and verbally abused by the officers of the PA who did not want us to have this information), I sued to get the records. The Corporation Counsel - namely Attorney Martin Bowe - called me up to tell me that the parents who were doing these heinous acts - Paula De Kock, Lauren Coleman-Lochner and Sumitake Nakazato - were now indemnified by him "because he wanted them to be." I asked him why he didnt indemnify me, and defend my efforts to get transparency with the finances of the Stuy PA, and he told me "We will NEVER,NEVER, defend you." [Does that mean that I dont have to pay City taxes?]
I started looking into this issue of representation by the Corporation Counsel. The pattern and practice seems to me to be completely arbitrary and capricious. Are there any attorneys out there who can describe to me how the Corporation Counsel works?
I'd really like to understand how the State of New York can prosecute its citizens with a huge Law firm funded by taxpayer funds.
Below are a few more examples and by the way, Stuart Lichten, a very good attorney I've heard, whose law firm is Schwartz, Lichten & Bright, is the husband of Senior NYSUT Attorney Maria Elena Gonzalez:
| Matter of O'Brien v Spitzer |
| 2006 NY Slip Op 05158 [7 NY3d 239] |
| June 29, 2006 |
| R.S. Smith, J. |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, August 9, 2006 |
[*1]
| In the Matter of Stephen L. O'Brien, Respondent, v Eliot Spitzer, as Attorney General of the State of New York, Appellant. |
Argued June 6, 2006; decided June 29, 2006
Matter of O'Brien v Spitzer, 24 AD3d 9, reversed.
{**7 NY3d at 241} OPINION OF THE COURT
R.S. Smith, J.
We hold that the Attorney General properly found a private lawyer who was appointed as referee in a mortgage foreclosure proceeding to be an independent contractor, not a state employee. The referee therefore was not entitled to defense and indemnification from the State in a lawsuit brought against him.
Facts and Procedural History
This case arises out of a proceeding to foreclose a mortgage on a home owned by Donald MacPherson. Supreme Court entered a judgment of foreclosure and sale, and appointed petitioner, a lawyer in private practice, as referee to supervise the sale of the property. The property was sold and MacPherson, contending that the foreclosure and sale violated his constitutional rights, brought a lawsuit in federal court seeking damages and injunctive relief against several defendants, including petitioner.
Petitioner informed the Attorney General of the lawsuit, and requested defense and indemnification pursuant to Public Officers Law § 17. The Attorney General rejected the request, relying on the exclusion of "independent contractor[s]" from the rights given by the statute. Petitioner then brought this proceeding under CPLR article 78 against the Attorney General, seeking an order annulling the Attorney General's determination and directing the Attorney General to defend petitioner in MacPherson's suit. MacPherson later withdrew his claims against petitioner, but petitioner continues to seek indemnification for the expense the suit caused him.{**7 NY3d at 242}
[*2]Supreme Court granted the petition, and the Appellate Division affirmed. The Appellate Division permitted the Attorney General to appeal to this Court on a certified question, and we now reverse.
Discussion
Public Officers Law § 17 (2) (a) requires the State to "provide for the defense" of an "employee" in an action arising out of his or her public duties. "Employee" is defined in Public Officers Law § 17 (1) (a), which provides in relevant part: "As used in this section, unless the context otherwise requires the term 'employee' shall mean any person holding a position by election, appointment or employment in the service of the state, . . . but shall not include an independent contractor."
The issue is whether petitioner was an "employee" or an "independent contractor" within the meaning of this section. We first consider whether the Attorney General's resolution of this issue is entitled to deference, and we conclude that it is.
While as a general rule courts will not defer to administrative agencies in matters of "pure statutory interpretation" (Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]), deference is appropriate "where the question is one of specific application of a broad statutory term" (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984], quoting NLRB v Hearst Publications, Inc., 322 US 111, 131 [1944] [interpreting the term "employees"]). This case is in that category.
The terms "employee" and "independent contractor" are familiar ones, and their definitions are well known. Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor (e.g., Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 521 [1985]). But it is often not easy to apply those definitions to specific facts. When a person claiming to be a public employee requests indemnification, the Attorney General must first decide whether that person is indeed an employee, or is an independent contractor. Where his decision is a reasonable one, courts should not second-guess it.
Here, there was ample basis for the Attorney General's determination that petitioner was an independent contractor, not an{**7 NY3d at 243} employee. Petitioner worked without day-to-day supervision and chose his own hours of work; it was he who selected the date for the foreclosure sale. He performed his duties on a part-time basis, while also working for clients of his private law practice. His compensation did not come from state funds, but from the sale proceeds. The State did not withhold income tax or provide workers' compensation. Petitioner furnished whatever materials he needed for his work, and paid his own expenses, subject to reimbursement from the sale proceeds. He deposited the proceeds in a special bank account bearing his own name, as required by CPLR 2609. He was, in short, substantially more independent from state control over his activities than a typical state employee. Beyond this, public policy supports the Attorney General's decision: The purpose of Public Officers Law § 17 is, in essence, to provide insurance against litigation. Private lawyers like petitioner ordinarily have malpractice coverage, and the Legislature is unlikely to have intended to substitute the State for lawyers' malpractice carriers.
Accordingly, the order of the Appellate Division should be reversed, without costs, the petition dismissed and the certified question answered in the negative.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
Order reversed, etc.
Decided on August 29, 2011
Supreme Court, New York County
100711/11
Attorneys for Plaintiff:
Lichten & Bright, P.C.
475 Park Ave. South, 17th FL
New York, New York 10016
(646) 588 - 4871
Attorneys for Defendant:
Corporation Counsel
100 Church Street, 4th FL
New York, New York 10007
(212) 788 - 0303
Judith J. Gische, J.
Petitioner is a City employee employed as a paraprofessional. Respondents are the New York City Department of Education, its former chancellor and the City of New York (hereinafter "respondents" sometimes "DOE"). Petitioner seeks reversal of the respondents' decision denying her legal representation in connection with a civil law suit commenced against her by the mother of one of her students. The respondents have answered and seek the denial of the petition without the need for a testimonial hearing.
In the matter of the application of Josephine Thomas, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, against New York City Department of Education, Cathleen Black, as Chancellor of the New York City Department of Education and City of New York, Respondents. |
100711/11
Attorneys for Plaintiff:
Lichten & Bright, P.C.
475 Park Ave. South, 17th FL
New York, New York 10016
(646) 588 - 4871
Attorneys for Defendant:
Corporation Counsel
100 Church Street, 4th FL
New York, New York 10007
(212) 788 - 0303
Judith J. Gische, J.
Petitioner is a City employee employed as a paraprofessional. Respondents are the New York City Department of Education, its former chancellor and the City of New York (hereinafter "respondents" sometimes "DOE"). Petitioner seeks reversal of the respondents' decision denying her legal representation in connection with a civil law suit commenced against her by the mother of one of her students. The respondents have answered and seek the denial of the petition without the need for a testimonial hearing.
Since an Article 78 proceeding is a special proceeding, it may be summarily determined upon the pleadings, papers, and admissions to the extent that no triable issues of fact are raised [*2](CPLR § 409[b]; CPLR §§ 7801, 7804 [h]). Therefore, the court will decide the issues raised on the papers and grant judgment for the prevailing party, unless there is an issue of fact requiring a trial (CPLR § 7804 [h]); York v. McGuire, 99 AD2d 1023 [1st Dept 1984] aff'd 63 NY2d 760 [1984]; Battaglia v. Schumer, 60 AD2d 759 [4th Dept 1977]).
Facts considered and arguments presented
Facts considered and arguments presented
On May 11, 2009, petitioner was a paraprofessional assigned to P.S. 94, a school in the Bronx. In an incident that was reported to the Office of Special Investigations, it was alleged that the petitioner, while working with a kindergarten student on a lesson, struck the child on the forehead with the back of her hand because the was doing the assignment incorrectly and had gotten the answer wrong.
Following the incident an investigation ensued. The allegations were found to be "substantiated" in a report dated May 19, 2009. By correspondence dated May 21, 2009, the principal of P.S. 94 notified the petitioner of the investigation's findings. The letter states that "evidence gathered substantiates the allegation that you did hit [the child] on the head during small group work." As a result of these findings, petitioner was reassigned with a warning that "[o]ur students are our most precious resource and must be respected and protected at all times. Under no circumstances is it acceptable to hit a student." Thereafter, the child's mother filed a civil action against the city, the New York City Board of Education and Ms. Thomas in the Bronx (Index No. 350220/10) ("civil action"). Petitioner requested legal representation in the civil action and Corporation Counsel responded to her request by letter October 14, 2010 stating that it could not provide legal representation after conducting its review "pursuant to Section 50-k of the General Municipal Law."
Respondents have answered the petition and provide further clarification of what the letter meant and why they denied legal representation. They contend that they properly denied petitioner a defense because General Municipal Law § 50-k and Education Law § 2560 govern the situation at bar and, according to respondents, the actions petitioner took — corporal punishment — was not within the scope of her duties as a New York City school paraprofessional and they violated the rules and regulations of the DOE.
The parties' disagreement focuses on the both afore cited sections of law as well as Education Law § 3028. The parties also disagree about whether certain trial court decisions apply (as petitioner claims) or have been incorrectly decided (as respondents contend). Initially, respondents sought a stay of this proceeding pending decisions in the appeals of two legal representation cases (Zampieron v. Board of Education, Index No. 109677/10, 2010 NY Slip Op. 52338U [Sup Ct, NY Co. 2010] and Morel v. Board of Education, 116668/10, 2010 NY Slip Op 32079U [Sup Ct. NY Co, 2010]). Respondents withdrew that application pursuant to the so-ordered stipulation of the parties dated May 26, 2011. These and other cases are examined later in this decision in the Discussion section below.
Education Law § 2560 [1] provides, in relevant part, as follows:
Notwithstanding any inconsistent provision of law, general, special or local, or the limitation contained in the provisions of any city charter, any duly appointed member of the board of education in a city having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer, or employee of such board and of each such community school board, member of a committee on special [*3]education or subcommittee thereof or authorized participant in the school volunteer program in such city shall be entitled to legal representation and indemnification pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in [GML § 50—k] ....
General Municipal Law § 50-k [2] provides, in relevant part, as follows:
[T]he city shall provide for the defense of an employee of any agency in any civil action or proceeding ... arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. . .
General Municipal Law § 50—k [3] provides, in pertinent part, as follows:
The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees ..., or in the amount of any settlement of a claim ... provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were substantiated; . . .
Education Law § 3028 provides the following, in pertinent part:
Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or [criminal] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.
Petitioner contends that she is entitled to a defense by the Corporation Counsel because she did not strike the child, the incident is alleged to have occurred during a lesson and, therefore, the act allegedly took place "while [she] was acting within the scope of [her] public employment and in the discharge of [her] duties," as General Municipal Law § 50-k [2] provides. She argues that Education Law § 3028, not Education Law § 2560 controlling.
Respondents, on the other hand, deny that Education Law § 3028 is applicable. They argue that Education Law § 2560 supercedes Education Law § 3028 because section 2560 is a specific statute, applicable to schools in a "city having a population of one million or more" (which New York City has) and when Education Law § 2560 was amended in 1979 it was to make sure there were consistent standards for, and conditions of, indemnification for all New York City employees. [*4]
Alternatively, respondents argue that even if Education Law § 2560 did not supersede section 3028, Education Law § 3028 is inapplicable to the facts of this case because the civil action against petitioner did not arise out of some legitimate disciplinary action taken by her against a student. They argue that petitioner hit the child because he got the wrong answer and, therefore, her actions (corporal punishment) is prohibited by DOE's regulations. Thus, respondents distinguish the present situation where the teacher is behaving in a rogue manner from those in which a teaching is dutifully and properly carrying out his or her duties within the scope of his or her employment.
Respondents point out that under General Municipal Law § 50-k, the Corporation Counsel has the right in the first instance to determine whether the alleged act or omission "occurred while the employee was acting within the scope of his public employment and in the discharge of his duties" and whether the act was in "violation of any rule or regulation of his agency" Thus, respondents argue that Corporation Counsel had a sufficient factual basis for its determination that petitioner was not entitled to legal representation because she had violated DOE's regulation forbidding corporal punishment.
Finally, respondents argue that petitioner did not satisfy statutory pre-conditions to filing this summary proceeding because she did not provide DOE with a notice of claim. For this argument they rely on the requirements of General Municipal Law § 50-k [6] which proscribes the institution of any proceeding under section 50-k, "unless notice of claim shall have been made and served upon the city in compliance with section [50- i]." This section of the law is entitled "prosecution of tort claims; commencement of action."
Another disagreement between the parties is whether petitioner is entitled to reimbursement of her legal fees because Corporation Counsel has declined to provide her with legal representation. Petitioner claims that if she has not violated any rule or regulation, then by not providing her legal representation, respondents have violated General Municipal Law § 50-k.
Discussion
In an Article 78 proceeding, the applicable standard of review is whether the administrative decision being challenged has a rational basis (CPLR 7803 [3]). Thus, where it is alleged the decision was arbitrary and capricious, or without a rational basis, the petitioner must set forth facts that establish it is "without sound basis in reason" (Matter of Pell, Jr. v. Board of Educ. of Union Free School District No., 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 at 231 [1974]; Matter of Colton, Jr. v. Berman, 21 NY2d 322 [1967]). The court cannot and must not disturb such a decision, even if it would have arrived at a different decision itself. For the reasons that follow, the court finds that petitioner has failed to establish that the determination by respondents, denying her legal representation, and for reimbursement of legal fees is neither arbitrary nor capricious.
The law in this area (legal representation for a school employee) is unsettled. Some trial courts have held that Education Law § 3028 is controlling and that the only ground upon which legal representation can be refused by respondents is if the alleged conduct was not within the scope of petitioner's employment (Morel v. Board of Education, 116668/10, 2010 NY Slip Op 32079U [Sup Ct. NY Co, 2010] ("Morel"); Inglis v. Dundee Cent. School Dist. Bd. of Education., 180 Misc 2d 156 [Sup Ct, Yates County 1999]; Sagal-Cotler v. Board of Education, Index No. 104406/10 [Sup Ct., NY Co 2011] ("Inglis"). [*5]
Other courts have, however, decided that Education Law § 2560 is a specific statute governing a petitioner's right to legal representation by the respondents (Zampieron v. Board of Education of City School Dist. of City of New York, 30 Misc 3d 1210 [A], 2010 WL 5576190 (Table) [Sup Ct. N.Y.Co., 2010] ("Zampieron"), holding that if the Corporation Counsel makes a rationally based determination that petitioner's conduct violated DOE's rules and regulations, then respondents' decision denying legal representation cannot be disturbed (also, Martin v. Board of Education of the City of New York, 2011 WL 1527190 [Sup Ct., NY Co., 2011] ["Martin"]). For the reasons that follow, this court agrees with the analysis set forth in the decisions of Zampieron and Martin and the court holds that petitioner failed to meet her burden of showing the respondents' decision is without a rational basis.
Upon initial examination, it appears that Education Law § 3028 and Education Law § 2560 (which incorporates General Municipal Law § 50—k [2] by reference) are inconsistent. However, upon closer inspection, it is apparent that Education Law § 2560 is more specific than section 3028 and the two sections of the law can be harmonized.
Whereas section 3028 is a general statute, Education Law § 2506 specifically applies to New York City schools. Furthermore, even if the two statutes cannot be harmonized, under rules of statutory construction the later, more specific statute takes precedence over the pre-existing and irreconcilably conflicting provision (see, Zampieron, 30 Misc 3d 1210 [A] [Sup Ct., NY Co.] and cases cited therein). The legislative history provided by respondents supports their arguments, that the amendments to Education Law § 2506 were insure that all city employees were indemnified against civil liabilities incurred as a result of proper performance of their duties on the job (see, Governor's Bill Jacket, 1979, Ch. 673). Consequently, a New York City DOE employee who is sued is entitled to a legal defense "in any civil action or proceeding ... arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of [his or her] agency at the time the alleged act or omission occurred ..." (General Municipal Law § 50-k [2]) (emphasis added). Therefore, under Education Law § 2506, there are conditions that must be met before a petitioner is eligible for legal defense by the Corporation Counsel.
Although petitioner easily meets "the within the scope of [his or her] public employment" requirement because she was in a class working with a student when the incident occurred, petitioner fails in meeting the other requirements. According to the child and an eyewitness, petitioner struck the child because he got the wrong answer on a lesson. Not only was the action alleged — hitting the child - not undertaken in the discharge or furtherance of her duties as a school employee, corporal punishment by a school employee violates specific regulations (8 NYCRR § 19.5[a][2]; Chancellor's Reg A-420). Consequently, while Education Law § 2560 may provide school employees in a city having a population of one million or more the right to legal defense where an action arises out of disciplinary action taken by the employee against a student while discharging his or her duties within the scope of his employment, it is up to the Corporation Counsel to make the initial determination whether these requirements are satisfied (General Municipal Law § 50-k [2] Perez v. City of New York, 43 AD3d 712, 841 N.Y.S.2d 559 [1st Dept 2007]). The Corporation Counsel's determination on behalf of the respondents is not subject to attack unless it is arbitrary and capricious and without a rational basis. [*6]
Although petitioner contends the decisions in Zampieron (and Martin) are inconsistent with the decision in Timmerman v. Board of Educ. of City School Dist. of City of New York, 50 AD3d 592 [1st Dept 2008], this argument fails. In Timmerman, the Appellate Division, First Department ordered DOE to reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself against criminal charges. The charges arose, however, from disciplinary action he undertook against three disruptive students. When the students did not curb their behavior, Timmerman called one of the girl's parents. A few days later, two of the students reported that Timmerman had "touched" them in a sexual manner and he was arrested on the strength of those claims. The First Department observed that the charges which were dropped were directly tied to his actions as a teacher trying to keep control and discipline in his class. In this case there is no suggestion that the child involved (age 6) reported he was hit on the head to get back at petitioner having taken some disciplinary action against him. The act of hitting the child on the head is simply an act of corporal punishment which is not tolerated except for in the most extreme and dire of circumstances not present on the day of the alleged incident. Following an investigation, the petitioner's actions were reported as "substantiated" and she was disciplined by reassigning her and having a letter put into her employment file.
The decision by respondents to deny petitioner legal representation is firmly supported by the record which includes the incident report and the report following the investigation, each identifying the incident of corporal punishment with specificity. The respondents' decision to deny her legal representation has a rational basis. Therefore, the petition, insofar as it seeks judgment directing respondents to provide her with legal representation is denied.
Petitioner also seeks reimbursement for the legal fees she has incurred because she is a "modestly paid public servant." Pursuant to General Municipal Law § 50-k [2], the initial determination as to whether an employee was acting within the scope of his or her employment, rests solely with the Corporation Counsel (Blood v. The Board of Education of the City of New York, et al, 121 AD2d 128, 130 [1st Dept 1986]). This is to protect "fallible public employees from the potentially ruinous legal consequences" of "unintentional lapses in the daily discharge of their duties" (Blood v. The Board of Education of the City of New York, et al., supra at 132). "
General Municipal Law § 50-k [2] does not provide for private recovery of legal fees if the petitioner is not represented by Corporation Counsel. However, General Municipal Law § 50-k [5] does provide that if the court proceeding against the employee is also "the basis of a disciplinary proceeding by the employee's agency against the employee, [then] representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission."
In the case at bar, there is no unresolved disciplinary proceeding against petitioner. The allegations against have been substantiated and she has been disciplined. She is not now, nor will she be in the future, eligible to recover the legal fees she has incurred in obtaining private legal counsel to defend against the civil action, even if it is dismissed against her because her employer, the city, has determined her actions were not within the scope of her employment (see, Ostrin v. The City of New York, 2007 WL 4241913 [Sup Ct., NY Co. 2007]). Therefore, this branch of her petition is denied as well.
Although respondents have raised an issue that petitioner did not comply with the notice [*7]requirements of General Municipal Law § 50- i, they have not shown that this section, pertaining to "prosecution of tort claims" has any applicability to this Article 78 summary proceeding. Therefore, respondents' claimed lack of notice is not a basis to deny this petition.
Conclusion
Conclusion
In accordance with the foregoing,
It is hereby
ORDERED, DECREED and ADJUDGED that the petition for a judgment (1) declaring that respondents' denial of legal representation and indemnification of expenses he incurred in defense of a civil proceeding was arbitrary, capricious and contrary to law and an abuse of discretion; (2) directing that respondents provide him with legal representation in the civil proceeding is DENIED in its entirety and this proceeding is dismissed; and it is further
ORDERED that this constitutes the decision, order and Judgment of the Court.
Dated:New York, New York
Dated:New York, New York
August 29, 2011
So Ordered:
_______________________
Hon. Judith J. Gische, JSC
| Perez v City of New York |
| 2007 NY Slip Op 06764 [43 AD3d 712] |
| September 18, 2007 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Severino Perez, Respondent, v City of New York et al., Appellants, and Carol Healy, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for Severino Perez, respondent.
Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for Carol Healy, respondent.
Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 16, 2005, after a jury trial, awarding plaintiff damages in the principal sum of $1.1 million, and judgment, same court and Justice, entered December 6, 2005, which, after a hearing before Anne E. Targum, J., awarded defendant Healy indemnification against defendant City for legal fees and expenses in the amount of $31,000, unanimously reversed, on the law, without costs, and the complaint and Healy's cross claim dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff was arrested and prosecuted at the instigation of defendant Healy, then a City police officer, in an incident culminating a long-brewing personal dispute between them. The jury determined that Healy was acting within the scope of her employment. We find no reasonable interpretation of the facts to support that conclusion (see e.g. Caits v Keyser, 202 AD2d 180 [1994]). As a matter of law, an officer is not acting within the scope of employment when causing an arrest of an individual while "engaging in a personal dispute, without any genuine official purpose," and simply "motivated by personal pique" (Campos v City of New York, 32 AD3d 287, 291-292 [2006], lv denied 8 NY3d 816 [2007]). This arrest was clearly "brought on by a matter wholly personal in nature, the source of which was not job-related" (see Seymour v Gateway Prods., 295 AD2d 278, 278 [2002]). The trial court should have granted the City's motion to dismiss on this ground.
This finding necessitates rejection of Healy's cross claim for legal fees and expenses as well. Pursuant to General Municipal Law § 50-k, she requested the Corporation Counsel to [*2]provide her with a defense. The Corporation Counsel has the statutory authority to determine whether or not the subject "act or omission . . . occurred while the employee was acting within the scope of [her] public employment and in the discharge of [her] duties and was not in violation of any rule or regulation of [her] agency at the time the alleged act or omission occurred" (§ 50-k [2]). Here, the negative determination by the Corporation Counsel should not have been set aside by Supreme Court, since it cannot be said that it lacked a factual basis, or was, in that sense, arbitrary and capricious (see Wong v City of New York, 174 AD2d 486 [1991]). Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.
Thứ Sáu, 9 tháng 9, 2011
Matter of Bellamy v NYPD: Witness Information Exception To FOIL
| Matter of Bellamy v New York City Police Dept. |
| 2011 NY Slip Op 06410 |
| Decided on September 8, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 8, 2011
Tom, J.P., Moskowitz, Freedman, Richter, Manzanet-Daniels, JJ.
3997- 3997A 401463/98
In re Perry Bellamy, Petitioner-Respondent,
v
New York City Police Department, Respondent-Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Sharyn
Rootenberg of counsel), for appellant.
Perry Bellamy, respondent pro se.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered July 31, 2009, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to the Freedom of Information Law to compel respondent to disclose police reports containing the names and statements of witnesses who did not testify at petitioner's trial, and order, same court and Justice, entered November 18, 2009, which, inter alia, denied respondent's motion to renew, unanimously reversed, on the law and the facts, without costs, and the petition denied.
New York City Police Department, Respondent-Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Sharyn
Rootenberg of counsel), for appellant.
Perry Bellamy, respondent pro se.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered July 31, 2009, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to the Freedom of Information Law to compel respondent to disclose police reports containing the names and statements of witnesses who did not testify at petitioner's trial, and order, same court and Justice, entered November 18, 2009, which, inter alia, denied respondent's motion to renew, unanimously reversed, on the law and the facts, without costs, and the petition denied.
In 1986, petitioner was convicted of the murder of a New York City Parole Officer. Petitioner made inculpatory statements to the police, in which he admitted to being present during the planning of the murder and to luring the victim to the scene. During the federal narcotics prosecution of other participants in the murder scheme, these individuals asserted that petitioner had not been involved. Petitioner's FOIL request for unredacted versions of documents he has received previously is part of his effort to obtain a new trial.
Public Officers Law § 87(2)(f) permits an agency to deny access to records, that, if disclosed, would endanger the life or safety of any person. The agency in question need only demonstrate "a possibility of endanger[ment]" in order to invoke this exemption (see Matter of Connolly v New York Guard, 175 AD2d 372, 373 [1996]; see also Matter of Rodriguez v Johnson, 66 AD3d 536 [2009]). "[A]ccess to government records does not depend on the purpose for which the records are sought" (Matter of Bellamy v New York City Police Dept., 59 AD3d 353, 355 [2009]).
Respondent met its burden of establishing that the documents at issue fall within an exemption from disclosure as provided in Public Officers Law § 87(2). The documents here reflect the identities of certain persons who spoke with police during the course of an investigation into this gang-related homicide ordered from prison. Because these individuals never became testifying witnesses, neither respondent, nor anyone else, would know about them otherwise. It is therefore possible that the lives of persons who spoke with police could be endangered from the release of identifying information. After learning the names, all one would need is an Internet connection to determine where they live and work. Moreover, insofar as the [*2]documents mention individuals who did not provide information relied upon during the investigation, that information is exempt from FOIL under the privacy exemption (see Public Officers Law § 87[2][b]; Matter of De Oliveira v Wagner, 274 AD2d 904 [2000]).
Accordingly, based on the facts and circumstances, we deny petitioner's FOIL request seeking unredacted versions of the documents (see Matter of Rodriguez, 66 AD3d 536 [2009] [DA properly withheld, pursuant to the public interest privilege, statements of two witnesses who spoke with law enforcement personnel]).
The decision and order of this Court entered herein on January 4, 2011, is hereby recalled and vacated (see M-624 [decided simultaneously herewith]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 8, 2011
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