Articles by Dr. Robert A. Michaels, NYPER's environmental science consultant, recently published in the Environmental Claims Journal

Excessive PCBs in the Hudson River is discussed in an article by Dr. Michaels [corresponding author, [bam@ramtrac.com] and Uriel M. Oko. Click via the URL below for free access to the full text of the article from ResearchGate.

https://www.researchgate.net/publication/316464957_Excessive_PCBs_in_the_Hudson_River_Attributable_to_Incompleteness_of_Dredging_or_to_Seven_Years_of_Dredging

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Fracking in New York State: weighing risks and benefits - Click on the URL below for free access to the full text of this article by Dr. Michaels [corresponding author, [bam@ramtrac.com] and Dr. Randy W. Simon from ResearchGate. 

https://www.researchgate.net/publication/336533285_Fracking_in_New_York_State_Weighing_Risks_and_Benefits

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Concerns about Electromagnetic Fields [EMFs] have been noted, most recently related to expanding of 5G antenna networks that are speeding up Internet service in communities. An article addressing this issue by Dr. Michaels [bam@ramtrac.com] can be downloaded from ResearchGate at no charge via https://www.researchgate.net/publication/331747414_Telecommunications_Electromagnetic_Fields_and_Human_Health

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Fungal risk vectors in the context of climate change, an article by Dr. Michaels [bam@ramtrac.com] addressing emerging health problems in the context of climate change can be downloaded from ResearchGate at no charge via  https://www.researchgate.net/publication/318712818_Environmental_Moisture_Molds_and_Asthma-Emerging_Fungal_Risks_in_the_Context_of_Climate_Change 

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Reducing significant environmental impacts and potential public health risks associated with United States Postal Service operations is the focus of an article by Dr. Michaels  [bam@ramtrac.com] . It may be downloaded from ResearchGate at no charge via the following URL: https://www.researchgate.net/publication/323256797_The_Emerging_Urgency_of_Mitigating_Environmental_Impacts_and_Potential_Public_Health_Risks_of_the_United_States_Postal_Service

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Legacy Water Contaminants of Emerging Concern: this article by Dr. Michaels [bam@ramtrac.com] can be downloaded from ResearchGate at no charge via the https://www.researchgate.net/publication/335432817_Legacy_Contaminants_of_Emerging_Concern_Lead_Pb_Flint_MI_and_Human_Health_published_online_12_September_2019_print_expected_January_2020

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Emerging green synergy in the science/religion relationship:  from conflict to potentially planet-saving cooperation.  The full text of the article can be downloaded from ResearchGate.net at no charge via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

State Comptroller Dinapoli releases audits

New York State audits listed below were issued on December 30, 2019.

Department of Agriculture and Markets: Oversight of Industrial Hemp (2018-S-32)

The department’s program has rapidly expanded opportunities for industrial hemp production in the state. However, the department does not always follow established practices when reviewing applications, conducting inspections, and sampling plants. The department inspected only 57 percent of growers in the program and tested plant THC levels for only 58 percent of the growers during 2018. Incomplete records and unreliable data systems further hinder its ability to effectively monitor program requirements.

City University of New York (CUNY): Compliance With Payment Card Industry Standards (2018-S-61)

Auditors found that while CUNY recognizes the importance of compliance with payment card industry standards and is committed to maintaining strong internal controls, it has not provided its colleges with sufficient guidance and direction for addressing and maintaining compliance with data security requirements.

New York City Department of Finance (DOF): Selected Aspects of Parking Violations Operations to Collect Fines and Fees (2017-N-8)

Overall, auditors determined that while DOF identifies parking summonses to be processed, its collection of payments for parking fines needs to be improved. Many parking summonses are dismissed as defective due to errors that occurred when the summonses were issued. Until October 2018, DOF expended minimal effort to collect amounts due for summonses issued to vehicles with diplomatic plates. These amounts due include $15.6 million for summonses issued before Nov. 1, 2002.

Metropolitan Transportation Authority (MTA) - Staten Island Railway (SIR): Operational Training and Medical Assessments of Train Crews (Follow-Up) (2019-F-18)

An audit released in March 2018 found that SIR was not in compliance with the requirements of the induction and refresher training established for its engineers and conductors. In a follow-up, auditors found MTA-SIR officials made progress in addressing the problems identified in the initial audit.

Department of Motor Vehicles (DMV): Allocation, Billing, and Collection of Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act (2019-S-5)

In general, DMV is appropriately allocating, billing, and collecting nearly all the expenses related to administering the acts. However, auditors identified areas for improvement.

New York State Health Insurance Program: UnitedHealthcare: Reasonable and Customary Reimbursement Rates for Delayed Claims (2018-S-60)

United's automated claims processing system uses only the two most recent rate periods (i.e., reimbursement rates from the prior 12 months) to process all claims – even claims for services that occurred before those rates took effect. From a sample of 100 claims, auditors calculated a potential cost savings of $214,008 for 84 claims that were paid using a rate period that was not in effect on the date of the service.

New York State Health Insurance Program: Empire BlueCross: Improper Payments for Special Items Billed by Hospitals Within Long Island Health Network (LIHN) (2017-S-43)

Auditors found Empire did not pay for special item claims according to the terms of its contract with LIHN. From a sample of 874 claims, Empire overpaid LIHN hospitals $3,597,688 for 722 special item claims (83 percent of the claims sampled). As of July 23, 2019, Empire had recovered $262,467.

Niagara Frontier Transportation Authority (NFTA): Use of Vendor-Supported Technology (2019-S-40)

NFTA officials have not developed policies and procedures to ensure that its systems are regularly reviewed and kept up to date. Auditors identified unsupported systems used by NFTA on 66 devices.

Homes and Community Renewal: Office of Rent Administration (ORA): Collection of Fines Related to Tenant Complaints (2018-S-58)

Auditors found ORA lacks proper fiscal controls over fines and settlements. There is limited assurance that all monies due the state are received and accounted for because of system, process, and policy weaknesses. ORA does not exercise its full authority to collect outstanding fines more timely. As of April 2019, there were at least $346,000 in outstanding fines. Harassment fines were imposed in only 12 out of the 684 harassment cases (2 percent) filed during the audit scope.

New York City Department of Social Services: Oversight of Security Expenses in Single Adult and Adult Family Homeless Shelters (Follow-Up) (2019-F-31)

An audit issued in May 2018 found that DHS lacks strong internal controls – most notably DHS-specific standard operating procedures. A review of four sampled providers’ security expenditures alone identified nearly $2.2 million in insufficiently documented or questionable security expenses, indicating that significant monitoring gaps exist. In a follow-up, auditors found DHS officials have made progress in addressing the issues identified in the initial report.

Department of Health (DOH): Oversight of Obesity and Diabetes Prevention Programs (Follow-Up) (2019-F-43)

An audit issued in September 2018 identified opportunities for improved oversight, particularly regarding contractor performance, of the state’s obesity and diabetes prevention programs. In a follow-up, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

Department of Health: Wadsworth Center Environmental Laboratory Approval Program (ELAP) (2018-S-1)

Auditors identified opportunities to improve documentation of on-site assessments, for which Wadsworth has taken corrective action. However, auditors did not find a significant amount of other non-compliance with ELAP procedures and protocols in the areas reviewed that would cause us to question the sufficiency of Wadsworth’s processes for certifying, monitoring, and enforcing regulations over environmental laboratories.

The "Son of Sam Law" allows crime victims to recover from any funds of a convicted person, including a retiree's pension benefits

A retired New York City police officer [Defendant] was convicted of, among other crimes, murder in the second degree and attempted murder in the second degree and was sentenced to a lengthy prison term.*

Plaintiff in this action had brought a personal injury action against Defendant that ultimately resulted in a judgment in excess of $1 million against Defendant. When Plaintiff's attorney served a restraining notice upon the New York City Police Pension Fund [Fund] to prevent any disbursements by the Fund to Defendant pending Defendant's criminal appeal, the Fund's general counsel advised Plaintiff's attorney that the Fund "was prohibited from honoring" Plaintiff's restraining notice "because Defendant's pension was subject to an anti-assignment provision. Defendant then moved to vacate the restraining notice and to stay the enforcement of the money judgment against him. 

Supreme Court denied Defendant's motion, finding that the so-called Son of Sam Law** specifically permitted crime victims to recover from any funds of a convicted person, including pension funds. Defendant appealed the court's decision.

The Appellate Division rejected Defendant's appeal challenging the Supreme Court's ruling. The court explained that the legislative intent of the Son of Sam Law was to improve the ability of crime victims to obtain "full and just compensation from the person convicted of the crime by allowing crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source and protecting those funds while litigation is pending," citing Waldman v State of New York, 163 AD3d 1114,.

Although the Son of Sam Law initially only permitted a crime victim to recover "profits of the crime", in 2001 the Legislature amended the law to allow a crime victim to seek recovery from "funds of a convicted person," which, said the Appellate Division, includes "all funds and property received from any source by a person convicted of a specified crime."***

Defendant had argued that CPLR §5205 exempted his pension from assignment to satisfy Plaintiff's judgment because it provides for the exemption of pension funds from the award of money judgments. 

Citing Matter of New York State Off. of Victim Servs. v Raucci, 106 AD3d 1138, the Appellate Division, said it had found that CPLR 5205 (c) was superseded by the Son of Sam Law. Further, the Appellate Division opined that Defendant's assertions that Retirement and Social Security Law §110 and Administrative Code of the City of New York §13-264 protected his pension from assignment to satisfy plaintiff's money judgment "are similarly without merit due to the broad reach of the Son of Sam Law."

* See People v Guzy, 167 AD3d 1230, lv denied 33 NY3d 948

** Executive Law § 632-a

*** The law, as amended, however, specifically excludes child support and earned income (Executive Law §632-a [1] [c]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00011.htm

* See People v Guzy, 167 AD3d 1230, lv denied 33 NY3d 948

** Executive Law § 632-a

*** The law, as amended, however, specifically excludes child support and earned income (Executive Law §632-a [1] [c]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00011.htm

An Article 78 petitioner is not aggrieved by an administrative determination made following petitioner's default and may not seek to review such a determination

Supreme Court dismissed the Petitioner's CPLR Article 78 action seeking a review of a determination by the Commissioner of Education [Commissioner], alleging that that the penalties imposed by the Commissioner "were excessive and improper.

The Commissioner had affirmed the decision of a hearing officer that Petitioner had operated an English as a second language school without, among other things, [a] being certified; [b] employing at least one private school agent, [c] paying required fees; [d] submitting required licensure and certification paperwork; and [e] recommended certain civil penalties upon, and restitution by, Petitioner. Supreme Court dismissed the action, finding that Petitioner's default precluded review of the order* and Petitioner appealed.

The Appellate Division, affirmed the lower court's ruling, observing that Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer and, as a result of Petitioner's failure to appear, the Hearing Officer deemed the allegations against Petitioner to be admitted and recommended the imposition of fines totaling $398,000.

The court also noted that Petitioner did not deny that it failed to answer or otherwise appear following service upon it of both the notice of charges and the notice of hearing date nor object to the Hearing Officer's report or otherwise seek to vacate its default prior to the Commissioner's issuance of the order imposing the subject fines.

Citing Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80 AD3d 924 and other court rulings, the Appellate Division observed that it is well settled that "a petitioner is not aggrieved by an administrative determination made on its default and may not seek to review such a determination."

Addressing a procedural matter, the court noted that "the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes." In such situations the proper procedure for a petitioner seeking judicial review of the merits underlying an administrative default "is to apply to the agency to vacate the default by demonstrating a reasonable excuse for the default and the existence of a meritorious claim and, if unsuccessful, seek[ing] court review of the agency's denial of that application."

Considering this point, the Appellate Division rejected Petitioner's claim that "(1) Education Law §5003 expressly relieves petitioner from having to submit an application seeking to vacate its administrative default before seeking judicial review of the underlying merits or (2) that the absence of a statutory and/or regulatory procedural mechanism for seeking vacatur of an administrative default precludes the agency from otherwise entertaining such an application."

Rather, noted the Appellate Division, during oral argument counsel for [the Commissioner] conceded that the "Commissioner would readily entertain an application" by Petitioner seeking to vacate the subject default. Thus, said the court, as Petitioner has, to date, not filed an application seeking to vacate its administrative default, "we find that its petition was properly dismissed."

* Petitioner had not answered or otherwise contested the Department's charges and thereafter failed to appear at a hearing before the designated Hearing Officer. 

N. B. In contrast, with respect to disciplinary action initiated by an appointing authority charging an employee with misconduct or incompetence pursuant to law or a provision set out in a collective bargaining agreement, the general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00016.htm

Procedural error results in the dismissal of an appeal to the Commissioner of Education

§310 of the Education Law provides for an aggrieved party filing an appeal or petition challenging an act or omission with the Commissioner of Education and the Commissioner is "authorized and required to examine and decide" issues involving, but not limited to, an act or omission at a school district meeting; by a district superintendent and other officers, and official act or decision of any officer, school authorities, or meetings concerning any other matter addressed by the Education Law.

In this appeal, a school superintendent [Petitioner] asked the Commissioner of Education to remove the president and member of the board [President] from the School Board. The Commissioner dismissed the Petitioner's appeal, explaining appeal must be rejected and the application denied because Petitioner's application failed to include proper notice to the President as required by §277.1(b) of the Commissioner’s regulations,* citing Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482 among other Decisions of the Commissioner of Education.

The notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings and a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent.

* See 8 NYCRR Part 877, Practice on application for removal of school officers.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17803

Agency's alleged failure to process an employee's contract grievance does not state a claim that the union breached its duty of fair representation

PERB's ruled that petitioner [Employee] in this CPLR Article 78 action failed to state a claim of improper practices against his employer [Agency] and his employee organization [Union] based on his allegation that the Agency "did not process his grievances quickly enough." The Employee appealed but the Appellate Division unanimously affirmed PERB's determination.

Citing Civil Service Bar Association, Local 237 v City of New York, 64 NY2d 188, the Appellate Division explained that PERB had rationally found that Employee failed to allege facts that would show that his Union had engaged in arbitrary, discriminatory or bad faith conduct, which is necessary to state a claim that the Union had breached its duty of fair representation within the meaning of Article 14 or the Civil Service Law, typically referred to as the Taylor Law.

Noting that Employee had acknowledged that a Union representative had sent an email to the Agency seeking to schedule three of Employee's grievances for a "Step II hearing" with respect to Employee's primary complaint that the Agency "did not process his grievances quickly enough," the court opined that such an allegation "does not present a basis for finding that [the Union] breached its duty of fair representation." As the Employee failed to show that the Union had breached its duty of fair representation, he was precluded from litigating directly against the Agency for any alleged improper employer practice within the meaning of Civil Service Law §209-a(1).

Further, said the court, PERB "rationally concluded that [Employee's] charge failed to allege facts that would show that [the Agency] refused to process his grievances on the basis of improper motivation or discrimination. Indeed, the Appellate Division observed that "construed liberally in [Employee's] favor, the allegations in the charge are conclusory and fail to establish that PERB acted arbitrarily and capriciously in dismissing the charge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00065.htm

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System

The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.* Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00198.htm

Effective date of permanent appointment to a position in the classified service

In an appeal challenging the termination of an employee before the completion of his probationary period, the Appellate Division  noted  that the appointing authority had determined that at the time of the employee's termination there were 25 days remaining in his probationary period and that because he had not yet been "permanently appointed to the position, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement."

It would have been more accurate had the appointing authority indicated that there were 25 days remaining in the employee's probationary period and that although he had completed his minimum period of probation, he had not yet attained tenure in the position and thus the employee, although appointed to the position as a permanent employee, was not entitled to a Civil Service Law §75 pretermination hearing or an equivalent disciplinary procedure set out in the controlling collective bargaining agreement.

As a general rule, an individual appointed to a position on a permanent basis has such status on the effective date of the "permanent appointment" but does not attain tenure in the position until:

[1] he satisfactorily completes his maximum period of probation; or

[2] by estoppel, acquisition, default, or otherwise by operation of law; or

[3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation.

In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in the position in contrast to the date on which an appointee "attains tenure" in the position is illustrated in other provisions of the Civil Service Law such as §80.1, Layoff, where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Guidelines followed controlling the judicial review of an arbitrator's ruling

A labor union [Union] representing employees of a public library [Union] filed a grievance, alleging that the Board of Trustees of the library [Board] violated an article of the parties' collective bargaining agreement [CBA] by failing to retroactively correct a salary inequality between the library employees and certain employees of the city. The CBA article in question, refer to as the "pay parity provision," required the Board to "actively pursue" funding "to maintain the historic link between the salaries of the library employees and the relevant employees of the city represented by the Union and such funding was to be applied retroactively if necessary "to correct an inequality."

The grievance procedure set out in the CBA did not resolve the dispute and the parties submitted to an arbitrator to determine if the Board violated the pay parity provision of the CBA, as well as the question of, if a violation was found, what was the appropriate remedy. After a hearing, the arbitrator determined that the Board had violated the provision of the CBA relied on by the Union, and that the Library employees were therefore entitled to a retroactive salary increase. The arbitrator then directed that the retroactive salary increase would be conditioned upon excision of the pay parity provision from the CBA going forward.

The Board initiated a CPLR Article 75 to vacate the portion of the arbitration award which called for excision of the pay parity provision from the CBA. Supreme Court granted the petition and remitted the matter to a different arbitrator for a new hearing and determination of the manner and timing of the "parity payments." The Board then appealed the Supreme Court's ruling.

The Appellate Division, affirming the lower court's ruling, explained that "[J]udicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, and courts may only vacate an arbitrator's award on the grounds specified in CPLR §7511(b). As the Board had advanced as its ground for vacatur under that statute "an excess of power," the court further explained that an arbitrator's award may only be vacated where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332.

Supreme Court had concluded:

1. The Union's interpretation of the pay parity provision was correct;

2. The CBA provision had been violated;

3. A retroactive salary increase for employees in the Union's collective bargaining unit was warranted; but

4. The arbitrator exceeded his power by essentially rewriting the parties' contract by eliminating the "pay parity provision going forward."

As the Appellate Division agreed with the lower court's findings and its determination vacating the portion of the arbitration award that conditioned relief upon excision of the pay parity provision from the CBA and remitting the matter to a different arbitrator for a new hearing and determination on limited issues, it sustained the lower court's rulings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09262.htm

Applying the "relations back" doctrine in an Article 78 action to cure a respondent's claim that the petition was untimely filed

The petitioners in this CPLR Article 78 action relied on the "relations back" doctrine for the purposes the court having assume jurisdiction in the matter. The Appellate Division explained reliance on the relations back doctrine requires that the Article 78 petitioner establish:

1. "that the claims arose out of the same occurrence;

2. "that the later-added respondent[s] [were] united in interest with a previously named respondent;, and

3. "that the later-added respondent[s] knew or should have known that, but for a mistake by petitioner as to the later-added respondent[s'] identity, the proceeding would have also been brought against [them]."

In this instance the issued on which the parties focused was the third prong of this test.

The genesis of the Article 78 action was a collective bargaining representative [Union] filing two improper employer practice charges against the Employer with the Public Employment Relations Board [PERB]. A PERB Administrative Law Judge [ALJ], following a hearing, issued a decision finding that the Employer guilty of one charge but dismissed the other charge. 

The Employer filed exceptions to the ALJ's ruling and, after an administrative appeal, PERB reversed the ALJ's determination. The Union then commenced a CPLR Article 78 solely against PERB seeking to annul its determination. Subsequently, however, the Union filed an amended Article 78 petition adding the Employer as respondents as well as PERB. The Employer contended that the amended petition was untimely, whereupon the Union argued that its petition was timely, relying on the relation back doctrine. PERB submitted a reply arguing that if Supreme Court agreed with the Employer's untimeliness objection, the amended petition should be dismissed against it due to the Union's failure to join necessary parties. 

Supreme Court dismissed the amended petition insofar as asserted against the Employer, finding that it was untimely filed and transferred the remaining portion to the Appellate Division in accordance with CPLR §7804[g]).

The Appellate Division observed "that the record fails to disclose that the failure to name the [Employer as] respondents in the original petition was due to a mistake as to their identity. The explanation provided by [the Union] was that it did not believe that the [Employer] were necessary parties to the proceeding." Citing Windy Ridge Farm v Assessor of Town of Shandaken, 45 AD3d 1099, affd 11 NY3d 725,the Appellate Division explained that such a mistake is a mistake of law not contemplated by the relation back doctrine."

In the words of the court, "[g]iven that [the Union] was aware of the [Employer's] existence and 'failed to appreciate that [they] were legally required to be named in proceedings of this type', [the Union's] reliance on the relation back doctrine is unavailing."

As the Employer was necessary parties to this proceeding and it demonstrated that the amended petition was not timely commenced against it, the Appellate Division ruled that the amended petition must also be dismissed insofar as asserted against PERB in view of the timeline involved in perfecting the Union's underlying Article 78 action. The Appellate Division then dismissed the Union's amended petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00199.htm

Courthouse Sanctuary for litigants

On December 19, 2019, a New York federal district court judge denied the U.S. government's motion to dismiss a lawsuit challenging the constitutionality of the U.S. Department of Homeland Security's Office of Immigration and Customs Enforcement [ICE] attempts to effect arrests in court houses located in New York State.

U.S. District Judge Jed Rakoff declined to dismiss a lawsuit challenging the constitutionality of ICE's efforts to effect such arrests. Judge Rakoff rejected the government’s arguments that [1] implied the arrests were “none of this Court’s business" and [2] that even if it were within the jurisdiction of the court, "the common law privilege against courthouse arrests doesn’t apply to ICE." Judge Rakoff's decision is posted on the Internet at: https://www.sdnyblog.com/files/2019/12/19-Civ.-8876-2019.12.19-Gonzalez-v.-ICE.pdf

Below is a portion of New York State Supreme Court Judge Hackeling's ruling that, in pertinent part, addresses the doctrine. Judge Hackeling explained:

"Despite antagonistic dicta to the contrary, most modern era precedent dealing with the issue of "Courthouse Sanctuary" from service of process has held that New York State residents receive no such immunity protections. (Baumgartner v Baumgartner, 273 App Div 411 [1st Dept 1948]; Department of Hous. Preserv. {**3 Misc 3d at 343}& Dev. of City of N.Y. v Koenigsberg, 133 Misc 2d 893 [Civ Ct, NY County 1986]; Ford Motor Credit Co. v Bobo, 1 Misc 3d 901[A], 2003 NY Slip Op 51464[U] [Nassau Dist Ct, Miller, J.].) These cases hold that the courthouse sanctuary is only available to foreign state residents who come into New York's courts to contest jurisdiction. This doctrine has been slightly expanded to include New York residents who enter the jurisdiction of a New York court of limited territorial jurisdiction to contest jurisdiction. (See Palazzo v Conforti, 50 NYS2d 706 [Civ Ct, NY County 1944]; Singer v Reising, 154 Misc 239 [Mun Ct, Queens County 1935].)

"The Baumgartner Appellate Division panel (at 413) also acknowledges a limited "Courthouse Sanctuary" rule for New York residents if such service would "constitute a disturbance directly tending to interrupt the proceedings of the court or to impair the respect due to its authority." This rule by itself would not be applicable to the instant case as service of process was effected in the courtroom but outside the court's presence and in between calendar calls.

"State Residency Immunity Distinction?

"The English common law made no New York state residency distinction. The doctrine of immunity from arrest of a litigant attending a trial of an action to which he is a party found early recognition and dates back to the Year Book of 13 Henry IV, I, B (Sampson v Graves, 208 App Div 522 [1st Dept 1924]). This is for the obvious reason that England had no sovereign states. The privilege is not a creature of statute, but was created and deemed necessary for the due administration of justice. (See Matthews v Tufts, 87 NY 568, 570 [1882], citing Van Lieuw v Johnson, Ct App, Mar. 1871 [unreported].)*

The logical question now arises, exactly when did New York's appellate courts recognize a residency distinction for application of the "Courthouse Sanctuary"? The answer is that the Court of Appeals never established such a rule. In contra point of fact, the Court of Appeals has opined that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as well as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo"* (Person v Grier, 66 NY 124 [1876]).

"In this unanimous opinion, the Court of Appeals expressly addressed the New York State resident immunity distinction and established in its dicta (at 126) that "whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." It is noted that Person involved a foreign state resident. In establishing the sanctuary doctrine, the Court stated that (at 125) "this rule is especially applicable in all its force to suitors and witnesses from foreign States . . . ." By direct implication, the Court of Appeals is also applying the protective rule to New York residents.

"The basis of the "Courthouse Sanctuary" rule is that parties should be allowed to contest jurisdiction without submitting to it. "Allowing Re-service . . . makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon to compel the defendant to submit to service of process." (Ford Motor Credit Co. v Bobo, supra at *2.) The location of an individual's residence does little to legitimize such a mockery. Absent the compulsion of clear controlling precedent, this court will not condone such a situation."

A number of immigration related LawBlogs are posted on the Internet at:
https://blawgsearch.justia.com/blogs/categories/immigration-law

* As memorialized by the Latin phrase eundo, morando, et redeundo  [Latin]  [Going, remaining, and returning], a phrase was used to describe a person (for example, a witness or legislator) who is privileged from arrest while traveling to the place where assigned duties are to be performed, while remaining there, and while returning. 

Judge Hackeling decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2004/2004_24045.htm

The CyberCemetery

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