Legal Report

On Saturday, August 16, 2008, we held a celebratory goodbye BBQ for my youngest daughter, Jaclyn, who was to leave the next day for a 10 day trip to Israel run by Taglit Birthright, part of a program providing free, organized trips to Israel to Jewish young people, ages 18 to 26, for the purpose of exposing them to Jewish/Israeli culture. One of Jaclyn’s friends, Christina, was talking about an incident at her job that had happened earlier that very day.

A customer had bought a pair of jeans a week before. She came into the store now to have the jeans hemmed and asked if there would be a charge for the work. The customer was under the impression that there was no charge for alterations. She was asked whether she had bought the jeans on sale and she responded that yes, she had. The sales associate then told her there would be a charge because jeans bought on sale were not given free alterations. The customer threw a fit right there in the store; she was outraged and screamed and yelled that she was not advised of the store’s policy to charge for alterations when jeans were bought on sale.

Whenever you are involved in any type of consumer transaction, knowing applicable policy is very important. What is the policy on returns, exchanges, and alterations? What is the guarantee and what are the terms of the guarantee? Who pays for shipment for repair work, etc? When you deal with a reputable store, a business that cares about its reputation for fairness and honesty, that business will make every effort to make you aware of its policies regarding its transactions with you, the consumer. And, of course, that is the way it should be.

When you file for benefits with the New York State Police and Fire Retirement System, you expect that all the policies that will be relied on by the Retirement System to make a decision on your case are clearly set forth in writing and are available for reference. Even if you do not know or review theses policies, you certainly expect that if you hire an attorney to assist you, your attorney is aware of the policies that could impact your claim for benefits.

In early July, I was traveling to the Association of PBA’s conference in Atlantic City with my partner, Richard Brandenstein, Esq. We were talking about frustrating, annoying, difficult and vexing problems we face as attorneys. One of the worst is when you deal with an agency that does not publish its policies, as it is required to do by law, or changes policies, again without making the change public so that applicants for benefits and the lawyers who represent them are able to avoid fatal errors.

For example, while the Retirement System has correctly published its regulation concerning "Job Duties to Be Considered in Processing Disability Retirement Applications", it has NOT properly notified applicants that when an applicant is out sick due to a line of duty injury, that sick time will count towards calculating the two (2) year time frame to determine the correct duty standard to be used. The Executive Law, the State Administrative Procedure Act and the New York State Constitution all require the Retirement System to file its policies with the New York Secretary of State, which the Retirement System did not do. Thus, applicants have not been properly advised of how the Retirement System counts sick time when it computes the two (2) year time period.

To further complicate matters, in a letter dated July 20, 2000, signed by Kathleen A. Nowak, then Director, Retirement Services – Disability Processing, she writes, "Any periods that the member is out on sick leave do not count towards this two year period but all periods on light, limited or restricted duty would count towards the cumulative total". Somewhere along the way, the Retirement System changed this policy and began to count the time out sick towards the two (2) year mark, with NO NOTICE at all to applicants. In fact, at a recent disability hearing, Ms. Nowak testified that ". . . there has been no change in the Retirement System’s use of the definition of ‘assignment’ as used in Section 364 since originally promulgated". Clearly this is not the case and Ms. Nowak conveniently ignored her own letter of July 20, 2000.

Presently we are engaged in litigation requesting the NYS Supreme Court to declare the Retirement System’s policy of counting sick time towards the two (2) year window null and void for failure to properly file the policy and to overturn all denials that were based on this unpublished policy. We are waiting for the Attorney General’s response to our law suit and we will keep you informed of the case’s progress in the Legal Report.

Recently I appeared before the Hon. Samuel Levine, representing five (5) applicants who had been denied accidental disability retirement benefits on the basis of "no accident", three (3) of whom are police officers. Here are the descriptions of the accidents that Judge Levine will decide. I will publish the decisions when received.

(1) "While on duty and at work, exiting my police car, the radio cord connecting my radio and shoulder microphone that was on my gun belt, became caught on a spring extruding from the ripped driver’s seat, pulling me off balance and causing me to twist, causing immediate, severe pain in my back, resulting in my disability".

(2) "While on duty and at work, at about 9:30 PM, in the course of a crime scene investigation of a possible homicide, I was called to an area in Port Washington, Nassau County NY, where a 10 foot trench had been dug by a construction company for the purpose of installing some type of piping. When debris was removed from the trench, undetermined types of bones were discovered, which the plumbing workers to call the police. Upon my arrival, I observed the bones that had been discovered and I could see more bones in the trench. Lighting for the trench was provided by Crime Scene and Emergency Services overhead light trucks as it was dark. I entered the trench with other police officers and we discovered further bones. The final determination was the bones were of an animal origin, concluding the homicide investigation. While securing equipment at the scene, I shut down the overhead lights of my crime scene vehicle, which was the only source of light at that side of the trench, and secured the rest of my equipment. The area around the entire vehicle was covered with broken roadway debris. I walked to the driver’s side of the vehicle and stepped on the broken up debris on the roadway while doing so. At this point, debris that I was stepping on shifted and moved unexpectedly, causing my right ankle to plant and twist in the debris, and my right knee to also twist, causing me to now fall into the van, resulting in my injuries and disability".

(3) "While on the 1100 hr. prisoner transport to 1st district Court, I removed the property bin from the trunk of the RMP. I was holding the property bin with both hands and was stepping towards the rear passenger side of the car. My right foot dropped approximately 4 plus inches and because lodged in a large pot hole. The drop, combined with the weight of the property bin caused me to fall forward uncontrolled. I struck the street in front of the driveway entrance to parking lot number 6 of 99 Main Street, Hempstead, with extreme force, causing my injuries. I did not see the pothole as my view was obstructed by the bin I was carrying".

I hope you have thoroughly enjoyed your summer and that you had the opportunity to spend wonderful, quality time with your family and friends. If you were able to travel to some exotic places, all the better. If you got to travel at all, that is good.

If you need any assistance with Workers’ Compensation, Social Security Disability, accidental or performance of duty disability claims or personal injury lawsuits, please do not hesitate to contact me at 516-496-0400, ext. 4413 or mrada@fbrlaw.com.