Dunson v. N.Y.S. Dep't of Corr.

• Decision Date: 12 November 2020
• Docket Number: 530137
• Parties: In the Matter of Tamiko DUNSON et al., Appellants, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1390

136 N.Y.S.3d 175

In the Matter of Tamiko DUNSON et al., Appellants,

v.NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

530137

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 14, 2020

Decided and Entered: November 12, 2020

Lippes Mathias Wexler Friedman LLP, Albany (Thomas D. Latin of counsel), for appellants.

Letitia James, Attorney General, Albany (Joseph M. Spadola of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the Supreme Court (Mott, J.), entered September 23, 2019 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner a two-year leave of absence pursuant to Civil Service Law § 71.

Petitioner Tamiko Dunson was employed as a correction sergeant at the Taconic Correctional Facility in Dutchess County. On February 15, 2018, an inmate who was housed at that facility became disruptive and refused to go to her assigned program. Dunson attempted to escort the inmate to the program and, when the inmate resisted, other correction officers responded and provided assistance. A physical altercation ensued and, as Dunson was attempting to restrain the inmate in order to apply handcuffs, she sustained injuries to her right knee, right wrist, right shoulder and lower back.

The day after the incident, Dunson was placed on a medical leave of absence. By letter dated January 17, 2019, respondent advised her that, pursuant to Civil Service Law § 71, her employment would be terminated effective February 16, 2019, as her leave of absence would have exceeded one year by that date. The letter further advised her that she could object to the determination in writing within five business days of the date of the letter. Dunson did not object and her employment was terminated. Thereafter, she and her collective bargaining representative commenced this CPLR article 78 proceeding challenging her termination on the basis that she was entitled to a two-year leave of absence under Civil Service Law § 71. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

Petitioners contend that Dunson is entitled to the two-year leave of absence provided under Civil Service Law § 71 because she was injured during an assault by an inmate. They assert that respondent's definition of assault, which requires an intentional physical act of violence directed toward the employee by an inmate or parolee, is irrational. Rather, petitioners urge this Court to apply the definition of assault in the second degree that is contained in the Penal Law (see Penal Law § 120.05[3], [7] ).¹ However, this Court specifically declined do so in Matter of Froehlich v. New York State Dept. of Corr. & Community Supervision, 179 A.D.3d 1408, 1409, 118 N.Y.S.3d 765 [2020], appeal dismissed 35 N.Y.3d 1031, 126 N.Y.S.3d 690, 150 N.E.3d 356 [2020] ). Significantly, in Froehlich, we noted that the definition contained in Penal Law § 120.5(3) should not be applied because to do so "would too broadly expand the scope of employees entitled to the enhanced benefit" ( Matter of Froehlich v. New York State Dept. of Corr. & Community Supervision, 179 A.D.3d at 1410, 118 N.Y.S.3d 765 ). The same reasoning applies with respect to the definition contained in Penal Law § 120.5(7). Here, although there is evidence that the inmate intentionally struck another correction officer during the course of the physical altercation, there is no indication that the inmate intended to assault Dunson. Under the facts presented, respondent could reasonably conclude that Dunson's injuries did not result from an assault by...