New York States' Freedom of Information Law does not require the creation of records not in existence or not in the possession of the entity

The New York City Department of Citywide Administrative Services [DCA] denied Petitioners' FOIL requests for records pursuant to New York State's Freedom of Information Law, Public Officers Law §§84-90, seeking "[a] list containing the name, race, gender, current salary, current job title, city start date, salary on city start date, [and] title start date, of all employees of" several City agencies over a period of 10 years. Petitioners appealed DCAS' decision.

Supreme Court directed DCAS to produce certain records Petitioners had demanded of that entity. Supreme Court also denied a motion submitted by the Respondent Fire Department of the City of New York [FDNY] involving certain records Petitioners sought from FDNY.

 The Appellate Division "unanimously modified, on the law" with respect to the extent of the court's Supreme Court's denying the petition with respect to the FOIL requests Petitioners had submitted to DCAS. The Appellate Division sustained DCAS's denial of Petitioner's FOIL requests and, citing Matter of Oustatcher v Clark, 217 AD3d 478, opined that DCAS's rejection of the Petitioners' FOIL request was not "affected by an error of law".

Observing that Supreme Court had improperly ordered DCAS to produce information possessed by a different agency, the Financial Information Systems Agency [FISA], the Appellate Division explained that FOIL does not require an agency "to prepare any record not possessed or maintained by" that agency and DCAS's witness had given unrebutted testimony that several of the eight categories of requested information were maintained in a separate database by FISA, not DCAS. Thus, said the court, DCAS was "under no obligation" to provide the information held be FISA and Supreme Court improperly required DCAS to undergo a process that would constitute the creation of a new record. 

Addressing another aspect of Petitioners'  FOIL request, the Appellate Division observed that Petitioners had also sought FDNY "... records[] pertaining to cases initiated by the Bureau of Investigations and Trials ('BIT[S]')" . . . , including . . . details of all BIT[S] cases initiated against members of the FDNY, with a breakdown of each case identified by: [c]ase number; [b]ureau . . . ; [i]nfractions charged; [r]ace of charged party; [g]ender of charged party; [d]isposition of the case; and [d]iscipline imposed on charged party.".

The Appellate Division said Supreme Court "properly concluded that compliance with this aspect of the demand set out in Petitioners' FOIL request would constitute the "creation of a new record" as FDNY's witness gave unrebutted testimony that the database containing BITS case records does not contain race and gender information and to match BITS information with employees' races and genders contained in an independent database would entail much more than a simple manipulation of computers to transfer existing records.

Click HERE to access the Appellate Division's decision posted on the Internet.

Applying for accidental disability retirement benefits

 The Petitioner, a police officer, applied for accidental disability retirement benefits. His application was denied by the New York State Employees' Retirement System. Following a hearing, a Hearing Officer sustained the System's denial of Petitioner's application, finding that the underlying incident and injuries sustained by Petitioner arose from risks inherent in the performance of his duties as a police officer and, thus, did not constitute an accident for purposes of accidental disability retirement. 

The Executive Deputy Comptroller adopted the Hearing Officer's decision and Petitioner initiated a CPLR Article 78 proceeding challenging the Executive Deputy Comptroller's decision. The Appellate Division affirmed the Executive Deputy Comptroller's determination, opining:

1. As the applicant, Petitioner bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law;

2. The Executive Deputy Commissioner's determination that Petioner's disability was not the result of an accident will be upheld if supported by substantial evidence in the record as a whole;

3. An event which is a risk inherent in the work performed is not an accident for purposes of [accidental disability retirement] benefits"; and, 

4. An event that is not a risk inherent in one's job must be a sudden, unexpected occurrence in order to amount to an accident.

 As the Court of Appeals explained, "a precipitating event that could or should have reasonably been anticipated by a person in [petitioner's] circumstances is not an accident for purposes of [accidental disability retirement] benefits". Thus, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury".*

Consequently, "where the injury-causing event constitutes a risk inherent in a police officer's duties, it is not unexpected and, thus, not an accident" Petitioner's application was denied upon a finding that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363. 

* See 2024 NY Slip Op 06234

Click HERE to access the Appellate Division's decision posted on the Internet.

Internet resources focusing on employment in the public service as of April 1, 2025

 

1. publicpersonnellaw.blogspot.com

   https://publicpersonnellaw.blogspot.com

   New York Public Personnel Law

   4 days ago · Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular …

    
2. 

   Library of Congress Blogs

   https://blogs.loc.gov › law › research-guides...

   Research Guides in Focus – Federal Civil Service Employment …

   Aug 9, 2024 · This research guide provides an introduction to federal statutes and regulations that govern federal civil service employment. Our guide also offers several secondary sources that …

3. 

   Library of Congress

   https://guides.loc.gov › federal-civil-service...

   Federal Civil Service Employment Law: A Beginner’s Guide

   Mar 12, 2025 · This guide provides a brief history of the federal civil service and a list of treatises, statutes, reports, and websites that will help you begin your research on federal civil service law.

   
   
4. 

   abogadosgold.com

   https://abogadosgold.com › law › civil-service-law

   Navigating Civil Service Law: Key Considerations and Insights

   Nov 11, 2024 · Civil Service Law governs the employment of public sector workers, ensuring fair treatment and protection of their rights. Here are some key considerations and insights to help …

5. 

   CSEA, AFSCME

   https://cseany.org › wp-content › uploads
   [PDF]

   The Basics of New York State Civil Service Law 101 - CSEA, …

   Sep 29, 2021 · Civil Service Law 101 Presented by: Don Kelly. Deputy Director for Contract Administration / Research. 2021 CSEA VIRTUAL DELEGATE MEETING. September 29, 2021. …

6. 
   

Providing an accommodation of a disability not strictly necessary for an employee’s performance of essential job functions may still be reasonable

Plaintiff, a teacher, appealed a decision by the United States District Court, Northern District of New York, granting a Central School District's [CSD] motion for summary judgment dismissing Plaintiff's claim that the CSD had violated the Americans with Disabilities Act [ADA] when it failed to provide her with a reasonable accommodation for her disability. 

Plaintiff conceded that "notwithstanding her disability-related pain", she was able to perform the essential functions of her job “regardless of the alleged denial of her accommodation” by CSD. Accordingly, the federal district court held that she failed to satisfy her burden of proving that she was entitled to a reasonable accommodation within the meaning of ADA.

Such a ruling, said the United States Circuit Court, Second Circuit, was error, noting "A straightforward reading of the ADA confirms that an employee may qualify for a reasonable accommodation even if she can perform the essential functions of her job without the accommodation". Further, opined the Court, "an ability to perform the essential functions of the job is relevant to a failure-to accommodate claim, but it is not dispositive". 

The Circuit Court's decision noted that Plaintiff had worked for CSD for approximately 20 years and has suffered "for decades from post-traumatic stress disorder" [PTSD] related to sexual harassment and sexual assault by a supervisor in her former workplace and her PTSD symptoms "affected her neurological functioning, interfered with her ability to perform daily tasks, induced a stutter that impedes communication, and caused nightmares so severe she has awakened vomiting." 

Following a change in school administration, CSD began prohibiting teachers from leaving school grounds during preparation periods. When Plaintiff attempted to do so despite the new policy, she was reprimanded for insubordination and was told that "the documentation [Plaintiff] had on file was insufficient to establish her right to a reasonable accommodation". 

Rather than provide additional documentation, Plaintiff took paid sick leave and then requested leave pursuant to the Family and Medical Leave Act [FMLA].  Upon Plaintiff's return from FMLA leave, CSD granted her one of her requested breaks in the morning, plus a break in the afternoon on days when a school librarian could watch her students but when a librarian was unavailable, Plaintiff was unable to take an afternoon break. 

Viewing the evidence in the light most favorable to Plaintiff, the Circuit Court's decision noted that Plaintiff had "used breaks to compose herself away from the workplace", an environment that tended to trigger her symptoms. 

The Circuit Court of Appeals concluded that the District Court erred by holding that an employee’s ability to perform the essential functions of her job without a reasonable accommodation is fatal to her failure-to-accommodate claim. Vacating the lower court's judgment, the Circuit Court remanded the matter to the District Court "for further proceedings" consistent with its opinion. 

Click HERE to access the Circuit Court's decision posted on the Internet.

Counsel fees to a Claimant's attorney paid from a reimbursement made to the employer by the NYS Workers' Compensation Board

Claimant's application for Workers' Compensation benefits was not controverted by Claimant's employer or the employer's Workers' Compensation Insurance carrier and the Employer continued to pay Claimant's wages, initially as leave at full pay and subsequently as sick leave at half pay. 

Claimant returned to work and Claimant's attorney filed an application for counsel fees. The employer and the employer's Workers' Compensation carrier [jointly "Carrier"] filed an application for reimbursement for the wages that it had paid to Claimant as sick leave at full pay and as sick leave at half pay.

A Workers' Compensation Law Judge [WCLJ] granted awards for a temporary total disability for specified periods of time as a credit to the employer and the balance payable to Claimant. In a subsequent decision, the WCLJ approved counsel fees of $7,222.00 to Claimant's counsel, with $6,727 of that amount as a lien against the reimbursement award to the employer and the remaining $495 to be paid out of the money payable to Claimant.

The Carrier sought administrative review by the WCB, contending the WCLJ improperly approved counsel fees for Claimant's counsel as a lien on the amount of reimbursement awarded to the employer because there was no increase in the amount previously awarded or paid as is required under Workers' Compensation Law §24(2)(b). The WCB affirmed the WCLJ's decision, explaining because the WCLJ made an initial award that had increased the amount of compensation awarded and/or paid previously, it was proper under Workers' Compensation Law §24(2)(b) to award counsel fees in the amount of 15% of that award, "regardless of whether the awards were made as employer reimbursement." The Carrier appealed the WCB's ruling.

The Appellate Division affirmed the WCB's decision, explaining that Workers' Compensation Law §24, as relevant here, "governs the amount and manner in which attorneys and licensed representatives receive compensation for their representation of claimants." 

Noting that the law sets out, among other things, "a schedule for the amount of counsel fees based upon the type of benefits awarded to a claimant", the Appellate Division's decision, in particular, noted that the law provides that "[w]hen an award is made that increases the amount of compensation awarded or paid for a previous period or periods of temporary total or temporary partial disability, the [counsel] fee shall be fifteen percent of the increased compensation" and that such fees, when approved by the Board, "become a lien upon the compensation awarded . . . and . . . shall be paid therefrom only in the manner fixed by the [B]oard".

Further, the Appellate Division held that the WCB "did not abuse its discretion by directing that the counsel fees be made payable against the carrier's lien for reimbursement", citing §24[4].

Click HERE to access the Appellate Division's decision posted on the Internet.

Applicant for accidental disability retirement benefits has the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law

In this action the Appellate Division was asked to review a determination of the New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

Petitioner, a police officer, [Petitioner] applied for accidental disability retirement benefits, alleging that he was permanently incapacitated as the result of having fallen while inspecting equipment at the Employer's facility where he worked. The New York State and Local Police and Fire Retirement System denied the application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

In this action the Appellate Division is asked to review a determination of New York State Comptroller denying Petitioner's application for accidental disability retirement benefits.

The Appellate Division affirmed the findings of the Retirement System and the Comptroller, observing "As the applicant, Petitioner bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, and [the Comptroller's] determination in this regard will be upheld if supported by substantial evidence".

Citing Matter of Yurko v DiNapoli, 122 AD3d 1047, and granting deference to the Comptroller's credibility determinations and given inconsistencies in Petitioner's testimony as to what he was doing at the time he fell and regarding the nature of the substance he claims caused his fall, the Appellate Division opined "substantial evidence supports the Comptroller's determination that Petitioner's injuries occurred in the ordinary course of his employment duties and that he failed to establish that his injury was the result of an accident, rather than his own misstep".

Click HERE to access the Appellate Division's decision.

Selected items on blogs posted during the week ending March 28, 2025

Sui Generis-a New York Law Blog, has posted a new item. Below in the URL to read more: 

Be curious and adapt–or be left behind 

2 More States Ban DeepSeek  From State Devices, Citing Risks Alabama and Oklahoma are the latest states to block AI tools with overseas ties from being used on government devices. Concerns include a lack of security as well as data collection and storage practices. READ MORE   Brisk Teaching Raises $15M for Classroom AI Technology As artificial intelligence sweeps through schools, colleges and universities, government technology vendors and investors are betting big on these new tools. Brisk touts its tech as helping to ease teacher shortages. READ MORE   Future-Proofing Justice: AI, Cloud and New Court Technologies While artificial intelligence and SaaS may sometimes seem like buzzwords, they're necessities for court systems that want to continue to provide accessible and efficient judicial services. READ MORE   Plan to Power Massive Data Center in Louisiana Faces Scrutiny Entergy's plan to power Meta's $10 billion AI data center in northeast Louisiana faced new scrutiny on Tuesday, with advocacy groups arguing before a judge that the tech giant should answer more questions. READ MORE   Pennsylvania County to Purchase Electronic Poll Books Somerset County is expected to use a new electronic poll book process during this year’s general election in November after county commissioners voted unanimously to purchase an ExpressPoll system. READ MORE

Streamline operations, free up resources for a safer community   Smarter technologies to streamline operations, reduce costs, and free up resources for what matters most. Get your guide A Big Step Toward Protecting Kids From App Stores Utah’s new legislation addresses parents’ concerns, doesn’t tax state or local resources for enforcement, and is popular with the public. Other states should see it as a model. READ MORE   More States Reject Fear-Based AI Regulation The course of legislation in Virginia and Texas suggests a way forward in regulating AI without stifling innovation. READ MORE   Five Ways a Funding Overhaul Transformed Texas Community Colleges Some schools have offered free tuition, grown dual credit programs or helped students’ credits transfer when they move on to four-year schools. READ MORE   City Hiring in Atlanta Now Requires Mayor’s Office Approval Departments have to receive permission to replace workers. The city is facing a $20 million shortfall driven by overtime costs for public safety. READ MORE

Local Government Audits posted on the Internet by New York State Comptroller Thomas P. DiNapoli

On March 19, 2025, New York State Comptroller Thomas P. DiNapoli issued the following local government audits:

Click on the text highlighted in color to access the full report posted on the Internet.

Village of Herkimer – Clerk-Treasurer’s Records and Reports (Herkimer County) The current and former clerk-treasurers did not maintain complete, accurate or up-to-date financial records. As a result, the board lacked the financial information necessary to properly monitor and manage village finances. The clerk-treasurers did not properly record financial activity totaling $10.5 million related to bank transfers, payroll, real property taxes and cash receipts and disbursements. They did not perform bank reconciliations, allowing discrepancies between general ledger cash balances and adjusted bank balances to remain unidentified and unresolved. They did not provide monthly balance sheet reports to the board or file Annual Financial Reports with the Office of the State Comptroller, as required by law. The board did not annually audit the clerk-treasurers’ records, as required by law.

Town of Ripley – Town Clerk Collections (Chautauqua County) The town clerk did not always record, deposit, remit and report all collections in a timely and accurate manner. Because of this, there was an increased risk for money to be lost or used for inappropriate purposes. The longer collections remain unremitted, the longer they are not available for town operations. The audit determined the clerk did not deposit 2023 tax collections totaling approximately $882,000 within 24 hours or record 2023 tax collections totaling approximately $560,000 daily as required. The board did not conduct an annual audit of the clerk’s records, as required.

Town of Elbridge – Payroll and Leave Accruals (Onondaga County) Town officials did not ensure that all payroll payments were accurate, supported and authorized and that leave accrual records were maintained accurately. Auditors determined that the town supervisor approved payroll without having any information regarding the numbers of hours that employees worked, the leave time that they used or their leave accrual balances. Also, staff were unaware of all the provisions of the collective bargaining agreement and the town’s employee handbook that affect leave accrual records. The handbook did not require salaried employees to prepare time sheets or timecards. As a result, seven full-time employees with 2024 salaries totaling $238,569 did not prepare time records to document their days and hours worked and leave accruals that they used.

Wallace Volunteer Fire Department, Inc. – Board Oversight (Steuben County) The department officers and members did not enforce financial provisions outlined in the department’s constitution and bylaws or adopt adequate policies and procedures to provide effective financial oversight of operations. The membership did not elect a five-member board or financial secretary and the president did not appoint members to the auditing committee to assist with financial oversight. The treasurer did not submit various annual reports as required, and did not have a system for recording all receipts and disbursements. The president had sole control of the foreign fire insurance bank account instead of the treasurer, as required by law. These actions result in an increased risk of theft and waste of department resources.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review assessed the town’s progress in implementing recommendations in the town’s prior audit report (2019M-189), released in January 2020. The audit found the supervisor did not maintain accurate financial records. The audit included seven recommendations to help improve the quality of financial records and reports. The audit follow-up found that town officials have not taken corrective action, as none of the seven audit recommendations were implemented.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review examined the town’s progress in acting on recommendations from another audit report examining the town’s fund balance management (2019M-221) released in January 2020. The prior audit determined the board did not properly manage fund balance, as the town-wide (TW) general fund and TW highway fund had deficit unrestricted fund balances. The prior audit also determined that the board did not develop and adopt comprehensive written multiyear financial and capital plans and written fund balance and reserve fund policies to help guide the budget development process. The audit included nine recommendations to help improve the town’s financial condition and financial reporting. It appears that the town has not implemented sufficient corrective action. The audit follow-up found that of the nine audit recommendations, only two were fully implemented and seven were not implemented.

Administrative Law Judge recommends a 45 day suspension without pay be imposed on an employee found guilty of storing and discharging an air rifle in a City of New York's building

New York City Office of Administrative Hearings and Trials Administrative Law Judge [ALJ] Faye Lewis recommended a 45-day suspension without pay as the penalty to be imposed on custodial engineer [Respondent] found guilty of storing an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes. 

The ALJ found Respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that Respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct. 

The ALJ dismissed the remaining charges against Respondent for storing alcohol and parking his motorcycle on petitioner’s property because the Petitioner [Employer] failed to produce sufficient evidence linking Respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct. 

Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected Employer’s argument that Respondent should be terminated for this misconduct, noting that there was significant mitigation underlying Respondent’s actions and that he has had a lengthy tenure with the Employer with high performance evaluations and no history of discipline. 

Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served. 

Click HERE to access Judge Lewis' decision posted on the Internet.

Enforcing the terms and conditions set out in a collective bargaining agreement beyond the grievance process.

State and municipal public employees in New York State have the right to negotiate terms and conditions of employment which are typically set out in a collective bargaining agreement [CBA]* pursuant to Article 14 of the Civil Service Law [typically referred to as "The Taylor Law]. Such individuals may also have rights provided by statute or regulation. 

Typically the collective bargaining agreement contains a mandatory grievance process the CBA and rarely provides employees with the authority to enforce the terms and conditions set out in the CBA beyond the negotiated grievance process.*

In this decision the Appellate Division pointed out that "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed grievance procedure and initiate litigation involving a  contract issue directly against the employer".

Citing Matter of Obot [New York State Dept. of Correctional Services], 89 NY2d 883, the Appellate Division noted that allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an Article 78 proceeding as "the proper mechanism is initiating a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union". In the words of the Appellate Division: As the employee's claim arises solely under the CBA, the employee was also required to follow the path laid out in the Appellate Division's decision in Ambach**

* On occasion such an agreement may issued in the form of a Memorandum of Understanding.

** Ed. Note: However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of administrative remedies is not required where so doing would constitute "an exercise in futility".

Click HERE to access the Appellate Division's decision.

Counting Provisional Service Towards Time-in-Title Requirements

The New York State Department of Civil Service has published General Information Bulletin 25-01, Provisional Service Counting Towards Time-in-Title Requirements for Promotion Once Permanently Appointed.

The text of General Information Bulletin 25-01 is posted on the Internet at GIB 25-01. 

A version of Bulletin 25-01 in PDF format is available for downloading at GIB 25-01 PDF.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm. N.B. Replies to this URL will not be read or answered.

The placement of unvaccinated COVID-19 bargaining unit members on leave without pay held not to be arbitrable

Supreme Court denied an employee organization's [Union] petition seeking to annul a determination by the New York City Board of Collective Bargaining [BCB] that a Union member's grievance was not arbitrable in part and dismissed this proceeding brought pursuant to CPLR Article 78.

Union had sought to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. 

BCB had determined that although certain issues asserted in the Union's petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay was not arbitrable.

The Appellate Division unanimously affirmed the Supreme Court's BCB's ruling without costs, opining that "BCB's finding regarding the arbitrability of issues relating to placement on Leave Without Pay [LWOP] was not arbitrary and capricious or contrary to law. The Appellate Division also rejected the Union's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the Collective Bargaining Agreement because they were placed on LWOP. 

The Appellate Division's decision is set out below:

Matter of Uniformed Firefighters Assn. of Greater N.Y. Local 94, IAFF, AFL-CIO v City of New York

2025 NY Slip Op 01596

Decided on March 18, 2025

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 and Entered: March 18, 2025
Before: Moulton, J.P., Kennedy, Rodriguez, Pitt-Burke, O'Neill Levy, JJ.

Index No. 159305/22|Appeal No. 3929|Case No. 2024-01024|

[*1]In the Matter of Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO, Petitioner-Appellant,

v

The City of New York et al., Respondents-Respondents.

Certilman Balin Adler & Hyman, LLP, East Meadow (Paul S. Linzer and Jennifer A. Bentley of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for The City of New York and The Fire Department of the City of New York, respondents.

New York City of Collective Bargaining, New York (Brian Zapert of counsel), for the New York City Board of Collective Bargaining, respondent.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 16, 2024, which denied the petition to annul the September 28, 2022 determination of respondent The New York City Board of Collective Bargaining (BCB) that petitioner's grievance was not arbitrable in part, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This proceeding arises from the attempt by petitioner Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO (UFA), to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. As relevant to this appeal, the BCB found that although certain issues asserted in the petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay (LWOP) were not arbitrable. 

BCB's finding regarding the arbitrability of issues relating to placement on LWOP was not arbitrary and capricious or contrary to law (see CPLR 7803[3]; Administrative Code of City of NY § 12-309[a][3]); Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650, 656 [1996]; Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Under the two-pronged test to determine whether a dispute is arbitrable pursuant to Court of Appeals precedent, the BCB must first determine whether the parties may arbitrate the dispute by inquiring if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnston Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). If there is a prohibition, the inquiry ends and an arbitrator cannot act. If no prohibition exists, as was the case here, the BCB then examines the parties' collective bargaining agreement (CBA) to determine whether the parties in fact agreed to arbitrate the particular dispute (see id.; see also MacDonald, 87 NY2d at 655-656). The Board rationally found, under the second prong, that there was no "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 283 [2010][citation omitted]).

We reject petitioner's argument that its members who failed to comply with the citywide vaccine mandate were deprived of rights under the regulations of respondent the Fire Department of the City of New York (FDNY). The cited regulation, FDNY regulation § 17.5.1, simply requires employees who want permission to go on special leaves of absence to apply in writing and explain the reasons for their request. It does not prohibit the FDNY from imposing leave in other circumstances, such as where these members fail to satisfy a condition of employment, nor does it address the FDNY's ability [*2]to do so (see Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 42 NY3d 986, 990-991 [2024]).

We also reject petitioner's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the CBA because they were placed on LWOP. These members' failure to satisfy a condition of employment necessarily renders them unqualified for their position (see id.; Garland v New York City Fire Dept., 574 F Supp 3d 120, 129 [ED NY 2021]; see also We the Patriots USA, Inc. v Hochul, 17 F4th 266, 294 [2d Cir 2021], clarified 17 F4th 368 [2d Cir 2021], cert denied sub nom. Dr. A. v Hochul, — US &mdash, 142 S Ct 2569 [2022]). Therefore, it was not irrational for the Board to find that petitioner identified no right "to the continuation of contractual pay and benefits under these circumstances." On appeal, petitioner identifies no CBA provision that would allow its members to continue being paid for services not rendered upon their failure to satisfy a condition of employment (see e.g. Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York, 125 AD3d 475, 475-476 [1st Dept 2015]; Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [3d Dept 2005]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 18, 2025