Tardiness Accommodation | Title or Zoning Insurance | Old Judgments

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An Employer’s Accommodation For Tardiness

An Employer’s Accommodation For TardinessThe Second Circuit Court of Appeals in McMillan v. City of New York, __ F3d __ (March 4, 2013) recently reversed a summary judgment dismissing an employee’s disability discrimination case against the City of New York. The employee is a schizophrenic whose medication left him drowsy and sluggish and perennially late for his job as a case manager for the New York City’s Human Resources Administration. He was fired because of tardiness. He claimed he was discriminated against based on his severe disability because the City failed to make a reasonable accommodation by allowing him to show up for work late and make up the hours during the workweek.

Generally, in order to establish a case under the federal Americans with Disabilities Act (ADA) a plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.

An employer may also violate the ADA by failing to provide a reasonable accommodation. A plaintiff can prove this by demonstrating that: (1) he is a person with a disability under the meaning of the ADA; (2) his employer covered by the statute had notice of his disability; (3) with reasonable accommodation, he could perform the essential functions of his job; and (4) the employer has refused to make such accommodations.

In this case, the lower court granted summary judgment in favor of the City holding that the City was entitled to deference in determining that arriving to work on time was an “essential function of plaintiff’s job.”

On appeal, the Second Circuit, although recognizing that there is a strong assumption that physical presence is an essential requirement of virtually all employment, concluded that several factors in this case presented a “somewhat different picture.” The Court was concerned that this employee’s late arrivals were “explicitly or implicitly approved” for many years. The City also had a flex-time policy which allowed all of its employees to arrive and leave work at one-hour windows because of the poor elevator service in the building. Thus, the Court held that “arriving on or before 10:15 a.m.–or any consistent time–may not have been an essential requirement of [the employee’s] particular job.” The Court went on to state that interpreting these facts in the employee’s favor, along with his long work history, “whether his late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute,” requiring a trial. The Court concluded that “physical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” The Court recognized that the employee had at least “suggested a plausible accommodation” of being allowed to work through his lunch hour and work late to “bank” time against future late arrivals, and the City had not shown evidence the accommodation would impose an undue hardship.

Employers should be mindful that although an employee’s ability to come to work, especially on time, is generally an essential function of most jobs, it is not a given. And although the courts will give considerable deference to an employer’s determination as to what hours are essential in a disability discrimination case, there are a number of other relevant factors that may influence the court’s ultimate conclusion as to a position’s essential functions, including how the employer historically treated tardiness and flex-time.

Title Insurance Is Not A Zoning Assurance

Title Insurance Is Not A Zoning AssuranceIn Silberger v. Smith the New York Supreme Court recently dismissed a complaint against a title company. The plaintiff commenced an action against, among others, the title company alleging that he was damaged because the real property he purchased is a legal one-family dwelling rather than a legal two-family dwelling. The plaintiff alleged that the zoning variance permitting the use and occupancy of the real property as a two-family dwelling expired without his knowledge prior to his closing of title.

An owner’s title insurance policy assures a purchaser that the title to the property is vested in that purchaser and that it is free from all defects, liens and encumbrances except those listed as exceptions in the policy or are excluded from the scope of the policy’s coverage. It also covers losses and damages suffered if the title is unmarketable. The policy also provides coverage for loss if there is no right of access to the land. Although these are the basic coverages, expanded forms of owner’s policies exist that cover additional items of loss.

The amount of insurance is typically the purchase price paid for the property. As with other types of insurance, coverages can also be added or deleted with an endorsement. There are many forms of standard endorsements to cover a variety of common issues. The premium for the policy is usually paid by the buyer, and the rates are standard. Title insurance coverage lasts as long as the insured retains an interest in the land, and typically no additional premium is paid after the policy is issued.

According to the decision, the policy issued to the plaintiff was the standard “American Land Title Association form owner’s policy containing the standard terms, conditions and exclusions from coverage.” Such a policy expressly excludes from coverage any loss or damage arising by reason of any law, ordinance or governmental regulation restricting, regulating prohibiting or relating to the occupancy, use or enjoyment of the land.

In dismissing the complaint, the Court reasoned that a “policy of title insurance is a contract of indemnification concerning the marketability of title indemnifying the insured against loss or damage as a result of title being rendered unmarketable by reason of defect, lien or encumbrance. Accordingly, a zoning ordinance, existing at the time of the contract, which regulates only the use of the property, generally is not an encumbrance making title unmarketable.”

Since the zoning code violation complained of by the plaintiff for the use of a two-family home relates to the manner in which the property can be used, and not to the marketability of title, the Court concluded that it was not a defect that impairs title, and noted that this alleged damage resulting from governmental laws was specifically excluded from coverage on the face page of the policy issued to the plaintiff.

Judgments More Than 20 Years Old May Be Enforceable

Judgments More Than 20 Years Old May Be EnforceableIn FNY Bank v. Alexander, New York’s Appellate Division, First Department, recently held that a man who acknowledged owing a judgment from 1990 during his 2005 bankruptcy, restated the 20-year statute of limitations period for collecting court judgments, even though he acknowledged only a small fraction of the amount of the judgment and misstated the correct court.

New York’s Civil Practice Law and Rules governs the entry and enforcement of judgments. A New York money judgment has a life of 20 years, and is a lien against real property in any county where the judgment is docketed for 10 years. Within the year prior to the 10 years’ expiration, a creditor who is unable to collect the full judgment is permitted to sue on it anew and get a “renewal judgment” to be docketed for a new 10 year lien. Whether or not the judgment is renewed, after a total of 20 years, the judgment is presumed to be satisfied, and no enforcement measures may be taken by the creditor after that period. The statute states: “[a] money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against the person who within the twenty years acknowledges an indebtedness or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged.”

In this case, a 1990 judgment was entered on default in the amount of $314,735.19, plus interest. In 2005, the debtor filed for relief under Chapter 7 of the United States Bankruptcy Code. Within that portion of his bankruptcy petition requiring itemization of all unsecured debt, the debtor listed a judgment awarded to the creditor in the amount of $10,000. Where the petition asked for an account number and reference to the judgment, defendant listed the correct index number within which the larger judgment was entered. In another portion of the petition entitled “statement of financial affairs,” which require defendant to list all lawsuits to which he had been a party, the debtor listed the action, it’s index number and that it was disposed by “judgment.” However, while the judgment was obtained in Supreme Court, debtor stated in his petition that it was in an action brought in Civil Court. It appears, however, that for whatever reason the judgment was never discharged in the bankruptcy proceeding.

In 2011, since the debtor had not made any payments on the judgment, the creditor sought to enforce the judgment by serving restraining notices and subpoenas on several individuals. The debtor then made a motion to the Court arguing that more than 20 years had expired since the entry of judgment and, therefore, judgment enforcement proceedings were no longer available to the creditor. The debtor tried to rely upon the inaccurate information listed in his bankruptcy petition to argue that the judgment was not acknowledged by him within the twenty year period.

The unanimous Appellate Division panel held that “[s]ince a debtor sufficiently acknowledges a debt pursuant to a judgment simply by admitting to the creditor in writing that a debt is owed, here, defendant’s listing of the judgment within his bankruptcy petition constitutes such as an admission and is thus, an acknowledgment under the statute.” The Court reasoned that the judgment debtor “need not specify the amount nor the character of the debt owed.” Therefore, the debtor’s “failure to list the correct amount of the judgment or the court in which it was obtained does not constitute a shortcoming which avails” the debtor. The Court concluded: “Logically, if an acknowledgment omitting the nature and the amount of the debt satisfies the statute, then certainly one which misrepresents both the amount of the judgment and the court in which it was obtained does so as well. This is particularly true here, where [the debtor] unambiguously admitted the debt owed to [the creditor] by correctly identifying the debtor, admitting that the debt arose from a judgment and listing the correct index number for the action giving rise to the debt.”

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