June 01, 2022

Issues considered in selected decisions promulgated by New York State courts during the month of May 2022.

Application for Performance of Duty Disability Retirement Benefits. Although Employee seeking performance of duty disability retirement benefits testified that he was being cooperative during the examination but that pain restricted his range of motion, the Comptroller credited the testimony of the orthopedic surgeon who examined Employee on behalf of the New York State and Local Employees' Retirement System, and the medical report and concluded that Employee had "deliberately frustrated the Retirement System's ability to confirm, and/or rebut, [his] assertions regarding his alleged disability." Click HERE to access the court's decision.

Applying the continuing wrong doctrine. The continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" and "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs." Click HERE to access the court's decision.

Determining if the issue petitioner's claims was arbitrable.  As the language of the arbitration clause contained in the collective bargaining agreement (CBA) between Emplolyee's union and the Employer lacks the plain and sweeping language demonstrating an intent by the parties to delegate the question of arbitrability to an arbitrator (see e.g. Matter of Steyn v CRTV, LLC, 175 AD3d 1, the clause does not state that it encompasses "any and all disputes" between the parties and it does not explicitly delegate the arbitrability question to an arbitrator and the CBA does not evince a clear and unmistakable intent to arbitrate the Labor Law claims at issue here. The URL to the court's decision is https://www.nycourts.gov/reporter/3dseries/2022/2022_03313.htm.

Considering a motion to expunge a disciplinary letter from petitioner's personnel file. As the four-month statute of limitations on Article 78 proceedings began to run when the disciplinary letter was placed in the Employee's file on May 6, and this proceeding was not commenced until, at the earliest, the subsequent January 13, the Appellate Division said Supreme Court should not have considered the letter. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03209.htm

Holding a party in contempt for violating a prior confirmed arbitration award and order. Actions outside the scope of a confirmed arbitration award cannot be found to be a violation of a clear and unequivocal court mandate sufficient to support a finding of civil contempt. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03218.htm

Paying for expert legal services. Plaintiff serve as Defendant's expert in a separate legal matter pursuant to an engagement letter outlining Plaintiff's fees and the terms of the retainer. Defendant failed to pay certain invoices, prompting Plaintiff to commence this action for breach of contract and an account stated. The URL to access the decision is http://www.nycourts.gov/reporter/3dseries/2021/2021_03499.htm.

Police officer terminated for excessive absences after suffering a work related injury. Following a hearing pursuant to Town Law §55 and Civil Service Law §75, a police officer was found guilty of incompetence and terminated from his position under color of Civil Service Law §75 after being charged with one count of incompetence due to excessive absenteeism as a result of his being physically unable to perform his duties on scheduled work days as the result of a work-related injury. The URL to access the decision is: https://www.nycourts.gov/reporter/3dseries/2022/2022_02413.htm. [See, also, https://www.nycourts.gov/reporter/3dseries/2022/2022_02420.htm]. For a "contra view" with respect relying on Civil Service Law §71 in such situations, see https://publicpersonnellaw.blogspot.com/2016/11/termination-of-police-officer-on.html

Traveling to and from work is not within the scope of employment. As a general rule, traveling to and from work is not within the scope of employment and any injuries sustained during that period are not subject to a workers' compensation award. However, there are exceptions to this general rule, including, as is relevant in this action, "outside employees who, as a distinguishing feature of their employment, have no fixed work site and are required to travel between job locations" and employees engaged in a special errand, wherein, "at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel.'" Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_02474.htm

Union alleged the Employer unilateral implementing the new rules and procedures for the usage of sick leave violated Civil Service Law § 209-a(1)(d). The Appellate Division affirmed portions of a determination of the New York State Public Employment Relations Board, which, after a hearing, found that the Employer violated Civil Service Law §209-a(1)(d) by issuing certain provisions of a sick leave management program, and directed the Employer to rescind those provisions. The matter was remitted to the Supreme Court for the issuance of an order compelling compliance with this decision and judgment. The URL to access the Appellate Division's ruling is https://www.nycourts.gov/reporter/3dseries/2022/2022_03392.htm.

 

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