Challenging the disqualification of a candidate for failure to meet the psychological requirements for appointment to the position

A candidate for appointment to a position of police officer [Plaintiff] was disqualified by the responsible civil service commission [Commission] for failure to meet the psychological requirements of the position. Plaintiff appealed the Commission's determination. Supreme Court denied Plaintiff's appeal, dismissed the proceeding and denied Plaintiff's motion for leave to reargue the petition. Plaintiff appealed Supreme Court's ruling.

The Plaintiff had passed the written portion of the County Police Officer Examination and his name was placed on eligible list. Plaintiff was subsequently given a conditional offer of employment, subject to his successful completion of physical and psychological screenings, among other things. Following a complete psychological screening, the Commission's staff psychiatrist concluded that Plaintiff was not capable of performing the duties of a police officer and the Commission disqualified Plaintiff "for failure to meet the psychological requirements of the position."

Plaintiff appealed the Commission's determination, submitting an independent evaluation by a psychiatrist, who disagreed in detail with the conclusions of the prior evaluators, and numerous letters of recommendation. The Commission referred Plaintiff to another staff psychiatrist for an additional interview and review of his file. This second staff psychiatrist also concluded that Plaintiff was not capable of performing the duties of a police officer. The Commission affirmed its original determination disqualifying Plaintiff for appointment as a police officer and denied Plaintiff's request to administratively reargue his appeal the Commission's determination.*

Supreme Court denied the Plaintiff's petition challenging the Commission's decision and dismissed the proceeding. Petitioner appealed the Supreme Court's ruling.

The Appellate Division, noting that reinstating Plaintiff's name to the subject eligible list is no longer possible as the eligible list had expired. The court then explained that an "appointment of an individual from a constitutionally valid expired list violates Article V, §6 of the NY Constitution" citing Matter of City of New York v New York State Div. of Human Rights, 93 NY2d 768.**

Nevertheless, in light of the conditional offer of employment given to Plaintiff, and his request for back pay, the Appellate Division denied the Respondents' request that the Appellate Division dismiss Plaintiff's appeal as academic. It then held Supreme Court had properly denied the petition and dismissed the proceeding, explaining "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied," citing Matter of Coyle v Kampe, 185 AD3d 1028, and other decisions.

In the words of the Appellate Division, "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it". Further, opined the court, in determining whether a candidate is medically qualified to serve as a police officer, "the appointing agency is 'entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate'" and it is not for the courts to choose between the diverse professional opinions."

In response to Plaintiff's request for copies of the underlying psychological reports for review and challenge by his own expert, the Appellate Division ruled that Plaintiff was not entitled to such documents and opined that Supreme Court had been provided with sufficient material to be able to determine that the Commission's determination was neither irrational nor arbitrary and capricious.

The Appellate Division, in affirming Supreme Court's ruling, and awarded the Respondents one bill of costs.

*  The Appellate Division noted "no appeal lies from an order denying reargument"

** See, also, Cash v Bates, 301 NY 258, in which the Court of Appeals held that an appointment to a civil service title from an expired civil service eligible list is a "legal impossibility."

Click HERE to access the text of the Appellate Division's decision.

 

Courts will not assume the role of overseers to conform an arbitration award to its sense of justice

In a proceeding pursuant to CPLR Article 75 in which the employer [Village] sought an order vacating an arbitration award, Village appealed Supreme Court's decision denying the Village's petition. The Appellate Division affirmed the Supreme Court's ruling.

Village employs court attendants to work in the Village's Justice Court. Work assignments for court attendants were historically determined through a seniority bidding process. The Village changed the process by which that work was assigned and began assigning shifts to court attendants without regard to seniority.

The employee organization [CSEA] representing the court attendants filed a grievance, alleging that the new process by which the Village determined work assignments for court attendants violated, among other things, the "Maintenance of Standards" provision of the relevant collective bargaining agreement [CBA]. The Maintenance of Standards clause of the relevant CBA provided "Any benefits heretofore enjoyed by an employee shall not be deemed to have been altered, modified or changed unless expressly so modified, altered or changed by this agreement."

Ultimately an arbitrator determined that the Village's new process for assigning work to court attendants violated the CBA's "Maintenance of Standards" provision. Village commenced the instant proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award, contending that the arbitration award was contrary to public policy.

Supreme Court denied the Village's petition and the Village appealed. Citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d 321, and other decisions. the Appellate Division affirm the lower court's ruling. The court explained "Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management [, and] [i]n circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role".

Further, said the Appellate Division, "An application to vacate an arbitration award may be granted only in narrow circumstances, such as where "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." Further, opined the court, an arbitrator "exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Noting that a party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence, the Appellate Division's decision pointed out that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies" and courts may not examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because a court believes its interpretation would be the better one.

Indeed, observed the Appellate Division, even where an arbitrator "makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice", citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d at 326; and Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-480).

Concluding that the Supreme Court properly determined that the arbitrator's award was neither irrational nor violated a strong public policy, and that the arbitrator did not exceed a specifically enumerated limitation on his authority, the Appellate Division ruled that  Supreme Court properly denied the Village's petition to vacate the arbitration award.

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

DiNapoli releases fiscal stress scores

Click on the text highlighted in color to access the complete report.

On March 22, 2023, State Comptroller Thomas P. DiNapoli announced that five villages were designated in fiscal stress under his Fiscal Stress Monitoring System (FSMS). DiNapoli evaluated all non-calendar year local governments and designated one village in “moderate fiscal stress” and four villages as “susceptible to fiscal stress.”

The village of Coxsackie (Greene County) was classified in “moderate fiscal stress.” The four villages classified as “susceptible to fiscal stress” are: Chateaugay (Franklin County), Canajoharie (Montgomery County), Huntington Bay (Suffolk County), and Mohawk (Herkimer County). No municipalities were designated in the highest category of “significant fiscal stress” in this round of scoring.

“Federal pandemic relief packages provided significant aid to local governments over the past three years, helping to balance their books during unprecedented circumstances,” DiNapoli said. “Now that funding is winding down and local officials will have to closely monitor their financial conditions. I encourage local governments to use our self-assessment tool to help them budget and avoid potential pitfalls in the coming years.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 519 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data for 2022. The scores also cover the 17 cities with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

In total, 95 local governments, including the cities of Lackawanna, Olean, Rensselaer, Salamanca and Syracuse, did not file their data in time to receive a FSMS score, a date that is at least three months past their statutory filing deadline. This is a significant increase of 30% from last year. Salamanca and Rensselaer have not filed their data in time to receive fiscal stress scores since 2015 and 2013 respectively.

DiNapoli’s office continues to make sure local governments are aware of both the statutory filing deadlines, as well as the critical filing dates for receiving a fiscal stress score.

“It is important that local officials file timely financial reports disclosing to the public the information they are using to make financial decisions, but we are seeing an increasing number that do not,” DiNapoli said. “When a local government fails to keep this legally required financial information current and accessible, it undermines confidence and accountability in a local government’s finances and forgoes an opportunity to learn of future risks from our early warning system.”

DiNapoli noted the city of Amsterdam in Montgomery County was classified in “moderate fiscal stress” last year and is now classified as “no designation,” while the city of Long Beach in Nassau County was classified in “susceptible to fiscal stress” last year and is now classified as “no designation.”

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

DiNapoli’s office has a self-assessment tool that allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which is especially helpful during periods of revenue and expenditure fluctuations.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, most cities and a few villages.

List of Villages and Cities in Fiscal Stress Municipalities in Fiscal Stress

List of Villages and Cities that Failed to File Financial Information Municipalities that Failed to File or Inconclusive List

Complete List of Fiscal Stress Scores Data Files

FSMS Search Tool Tool

 

A reasonable penalty under the circumstances is to be imposed on an employee found guilty of disciplinary charges

In this case the Appellate Division applied the lesson set out in the Court of Appeals' decision in Pell v Board of Educucation of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, typically referred to as the Pell Doctrine: the disciplinary penalty imposed on a individual found guilty of disciplinary charges must be proportionate to the offense.

The School Board [Board] filed disciplinary charges against one of its employees, a custodial worker, pursuant to §75 of the Civil Service Law alleging incompetence and misconduct. The hearing officer found the employee [Petitioner] guilty of incompetence, insubordination, and misconduct and recommended that the Petitioner be terminated from his position. The Board accepted the hearing officer's findings and recommendation and terminated Petitioner.

Petitioner appealed and the Appellate Divisions, noted that its review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to §75 of the Civil Service Law is limited to considering whether the Board's determination "was supported by substantial evidence."*

The Appellate Division concluded that there was substantial evidence in the record supporting the determination that the Petitioner was guilty of incompetence, insubordination, and misconduct. The court's decision reports that "The record indicates, inter alia, that [Petitioner] discovered a knife and pepper spray under a radiator and left them there for approximately three hours knowing that there were students and other staff in the building, and that the [Petitioner] gave two students $25 each after betting that one of the students would win in a basketball game against the other."

Citing Branam v Simons, 300 AD2d 973, the court said that although "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty," in light of all the circumstances, including the Petitioner's length of service and lack of a prior disciplinary record, "the penalty of termination was so disproportionate to the offense as to be shocking to one's sense of fairness."**.

Accordingly, the Appellate Division granted Petitioner's appeal "to the extent that so much of the determination as terminated the petitioner's employment is annulled" and remanded the matter to the Board "for the imposition of a lesser penalty."

* The court opined that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." 

** Here the Appellate Division refers to the decision of the Court of Appeals in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

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

 

Accepting the benefits of a settlement agreement deemed ratification and "not lightly cast aside" by the courts

A Village police officer [Officer] was involved in an off-duty accident that rendered him paralyzed from the waist down. Officer filed a notice of claim alleging that the Village discriminated against him after he became disabled. Approximately nine months later, Officer executed a settlement agreement [Agreement] pursuant to which he agreed to withdraw his notice of claim and waive his right to assert certain claims against the Village in exchange for certain benefits, including remaining employed as a police officer for three years until 2016, when his pension rights would vest. The Agreement also provided that Officer would be eligible to continue to be employed by the Village in a different capacity at a reduced rate of pay.

Officer worked in a transitional light-duty police officer position beyond the 2016 deadline established in the Agreement.  In March 2019, however, the Village informed the plaintiff that it would be enforcing the terms of the settlement agreement and instructed him to resign as a police officer as of April 1, 2019. The Village invited Officer to apply for certain lower-paying light duty positions in accordance with the terms of the settlement agreement.

In June 2019, Officer commenced an action to set the Agreement aside. Supreme Court granted a cross-motion to dismiss the complaint, holding that Officer's complaint was subject to dismissal based on Officer's ratification of the Agreement. Subsequent efforts by Officer to vacate the agreement and obtain other relief proved fruitless and ultimately the various efforts made by Officer to set the Agreement aside were considered by the Appellate Division.

The Appellate Division, citing Hallock v State of New York, 64 NY2d 224, said that "Stipulations of settlement between parties are binding contracts enforceable by the court and, as such, they are favored and [are] 'not lightly cast aside' ... especially where, as here, the party seeking to set aside the stipulation was represented by counsel."

Noting that Officer "accepted the benefits of the settlement agreement" continuing to work as a police officer for the Village from 2013 through early 2019, three years beyond the end date he bargained for and did not seek to set aside the Agreement on any of the grounds raised in his complaint at any point before commencing [the instant] action in 2019, the Appellate Division held that the Village was "entitled to dismissal of the complaint on the ground that [Officer] ratified the settlement agreement."

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

Workers' Compensation Board required to address the issues raised by a Claimant for workers' compensation benefits in an administrative appeal to the Board

The Workers' Compensation Board, [Board] found that where, as here, a claim for workers' compensation benefits "was never indexed," the provisions of Workers' Compensation Law §25(2)(b) are inapplicable and ruled that the employer did not file an untimely notice of controversy. Claimant's subsequent application for reconsideration was denied. Claimant appealed the Board's decision.

The Appellate Division held that although the Board concluded that Workers' Compensation Law §25(2)(b) is inapplicable given that the claim was never indexed, the Board did not address the related issue raised upon administrative appeal that the employer's initial FROI-00 form was a binding acceptance of the claim.* Further, said the court, the Board provided "no reasoning or basis for its determination that the notice of controversy was timely filed." 

This, said the Appellate Division , precluded "a meaningful appellate review by this Court".

Citing  Matter of Sequino v Sears Holdings, 206 AD3d 1408 and Matter of Ippolito v NYC Tr. Auth., 203 AD3d 1360, the Appellate Division reversed the Board's decision, concluding that the matter must be remitted to the Board for it "to satisfy its obligation to address the issues raised by claimant on administrative appeal and provide a detailed explanation for its determination."

* Claimant contended that the employer's initial FROI-00 form indicated "L — With Liability" and should be deemed a binding acceptance of the claim with liability. The Appellate Division's decision notes that 12 NYCRR 300.37(c) "dispenses with the need for indexing where a claim is accepted".

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

 

Former Town Court Clerk charged with pocketing court fines and fees

State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco, and the New York State Police announced the arrest of Eileen Steurrys, the former part time court clerk for the Town of Marion, for the alleged theft of $59,293 in court fines, fees and surcharges.*

“The defendant went to great lengths in her attempt to cover up her alleged theft of public funds.  Now, because of my office’s investigation and our partnership with state and local law enforcement, she faces the consequences of her actions,” DiNapoli said. “My thanks to District Attorney Calarco and the State Police for helping my office fight public corruption.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and District Attorney’s Office, for their hard work in putting an end to this deceitful plan. The arrest of this individual sends a strong message that we will not tolerate dishonest actions by those who use their position at the expense of the public. The State Police remains ready to assist in investigating and apprehending those individuals willing to engage in fraudulent acts.”

Michael D. Calarco, Wayne County District Attorney said, “I wish to thank and commend Mr. DiNapoli and the NYSP for their hard work and cooperation. This is a clear example of agencies from State and Local government working together to serve and protect the public.”

The former court clerk’s crimes were uncovered during an audit of the Town of Marion Court Fund, which found court fees were not always being deposited. A resulting investigation in collaboration with  Wayne County District Attorney Calarco and the State Police determined that, from 2016 to 2021, the defendant allegedly stole over $50,000, then altered court records and created phony receipts in an effort to conceal her crimes.

She admitted to the thefts when questioned by DiNapoli’s investigators and stated that she had altered and deleted court records when she learned of the impending audit before abruptly retiring as a part time court clerk.

Steurrys, 67, was charged Wednesday with grand larceny in the second degree, corrupting the government in the second degree, tampering with public records in the first degree and official misconduct. She was arraigned in Wayne County’s Court Arraignment Procedure before Judge Marsha Williams. She is due back in court on March 22nd.

N.B. The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

* The practice of using a public office or position of trust for one's own gain or advantage is sometimes referred to as "jobbery". See https://www.merriam-webster.com/dictionary/jobbery. 

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Since taking office in 2007, New York State Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving New York taxpayer funds may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, or by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc.

 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

Recent personnel disciplinary decisions handed down by NYC Office of Administrative Trials and Hearings Administrative Law Judges

Supervising OATH Administrative Law Judge Joan R. Salzman recommended a 15-day suspension for a steamfitter who was discourteous to his supervisor on two occasions. On one of these occasions, the employee made an anti-Latino remark to express his dissatisfaction with his supervisor. Although the employee was also Latino, his remark was offensive and unacceptable workplace behavior. Click HERE to access Judge Salzman's decision.

 

OATH Administrative Law Judge Christine Stecura recommended dismissing charges against a paramedic charged with stealing money from a patient. The paramedic’s partner alleged that he saw the paramedic take money from the patient’s apartment but the ALJ found that petitioner failed to corroborate the partner’s testimony. The patient’s ex-wife’s testimony that she did not see the paramedic take any money and did not notice any money missing from the apartment undermined petitioner’s case. Click HERE to access Judge Stecura's decision.

 

OATH Administrative Law Judge recommended dismissing charges against a sergeant charged with failing to issue a summons to a driver, unlawfully ordering a patrol officer to dispose of marijuana recovered during a traffic stop, and failing to keep an accurate account of marijuana recovery. The allegations against the sergeant were made by the patrol officer, who was being investigated about his conduct during the traffic stop. The patrol officer did not testify at trial. Instead, petitioner relied on the patrol officer’s unsworn statements to an investigator and presented the investigator’s testimony and report at trial. The ALJ found respondent’s testimony denying the allegations to be more credible than the hearsay statements attributed to the patrol officer. The investigator’s report was also found to be unreliable. Click HERE to access Judge McGeachy-Kuls' decision.

 

OATH Administrative Law Judge Orlando Rodriguez recommended termination of employment for an investigator charged with misconduct and incompetence. The Department proved that the employee persistently demonstrated an unwillingness to perform his job and was excessively absent. The ALJ also found that the employee was insubordinate to his supervisors by failing to respond to e-mails, refusing to attend conferences and trainings, sending discourteous e-mails, and being absent without leave. Click HERE to access Judge Rodriguez's decision.

 

Retirees found to have a vested contract right to health insurance in retirement

Former firefighters and the spouses of deceased former firefighters  who retired from their employment with City of Albany [City] before October 20, 2015, [Plaintiffs], were advised that effective January 1, 2016, there would be changes to the health insurance plan and Plaintiffs would be required to pay annual $250 deductibles for insured individuals and $500 deductibles for insured families.

The Union filed a grievance on behalf of its members with respect this change's affecting active union members upon their eventual retirement and submitted the matter to  arbitration. The Union contended that the City's unilateral change to retirees' health insurance violated the terms of §27.1 of the relevant collective bargaining agreements [CBA]. 

An arbitrator found that the City's failure to negotiate the new deductibles violated the CBA and a second arbitrator subsequently found that, by imposing deductibles, the City was no longer providing substantially equivalent coverage. The second arbitration award required the City to reimburse deductibles paid by all retirees who retired on or after October 20, 2015. Both arbitration awards were confirmed.

Plaintiffs in this action, however, were not included in the arbitration award because they or their deceased spouses had retired prior to October 20, 2015, the effective date of the award. Plaintiffs commenced the instant action against the City alleging a breach of contract and requested a declaratory judgment. Plaintiffs also sought reimbursement for their past and continuing payment of the deductibles. Plaintiffs moved for summary judgment while the City cross-moved for summary judgment dismissing the complaint.

Supreme Court found that Plaintiffs had a vested contract right under the CBA and that collateral estoppel precluded the City from relitigating the issue of whether §27.1 of the CBA was violated. Accordingly, the court granted Plaintiffs' motion for summary judgment and denied the City's cross-motion. The City appealed.

The Appellate Division affirmed the Supreme Court's ruling explaining:

1. Plaintiffs' right to health insurance without deductibles was a form of deferred compensation earned during their employment, to which they had a vested right as §27.1  of the CBA was "neither expressly limited to active union members ... nor does it clearly include retired former union members."

2. Given this ambiguity, the court may look to past practice to give meaning to the contract; and

3. While it is true that past practice "is merely an interpretive tool and cannot be used to create a contractual right independent of some express source in the underlying agreement" there is an express source for Plaintiffs' claimed contractual right here, namely §27.1 of the CBA and its reference to the "existing health insurance plan."

Citing Holloway v City of Albany, 169 AD3d 1133, the Appellate Division noted the record revealed "that it was the longstanding practice of the City not to charge deductibles as part of the health insurance plan for retirees."

Indeed, said the Appellate Division, an affidavit submitted to Supreme Court by one of the Plaintiffs, a former Union president, reflected that no deductible had been charged to retirees for at least 20 years before his retirement in 2010, and the lack of a deductible was an important factor in his decision to opt into the City's health insurance plan when he retired. Additionally, opined the court, there is "no meaningful distinction between Holloway and the instant case".

Acknowledging what it characterized as "the well-established principle that 'the continuation of health insurance payments to current employees after their retirement ... constitute a form of compensation earned by the employee while employed'", the Appellate Division concluded that Supreme Court "correctly determined that plaintiffs have a vested contractual right under section 27.1."

Addressing the City's argument that the Doctrine of Collateral Estoppel did not bar them from litigating the issue of whether they were required to negotiate the imposition of deductibles for retirees with the Union in the instant matter, the Appellate Division said it agreed with Supreme Court that the issue of whether the City violated §27.1 of the CBA by unilaterally imposing deductibles upon retirees was already determined in arbitration, "where the City had a full and fair opportunity to argue its position." Citing Simmons v Trans Express Inc., 37 NY3d 107, the Appellate Division observed that notwithstanding the fact that Plaintiffs, as retirees, were not involved in the two underlying arbitrations, "the identity of parties is not an element of this doctrine".

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

 

Challenging a federal district court's granting the moving party's motion seeking summary judgment

Plaintiff alleged the Defendant unlawfully terminated him and discriminated against him on the basis of his religion. Following the federal District Court's denying Plaintiff's motion to compel discovery and granting the Defendant's motion for summary judgment, Plaintiff appealed both of the District Court's rulings. 

With respect to Plaintiff's motion to compel discovery alleging the federal District Court had abused its discretion, the Circuit Court of Appeals noted that Plaintiff's counsel failed to comply with the District Court’s scheduling orders and discovery deadlines and offered no compelling justifications for her admitted failure to do so.

Accordingly, said the Circuit Court of Appeals, the District Court acted well within its discretion when it denied Plaintiff’s motion to compel discovery and affirmed the District Court’s denial of that motion.

Turning to Plaintiff's appeal with respect to the District Court's granting the Defendant's  motion for summary judgment, the Circuit Court of Appeals explained that it reviewed the grant of summary judgment to Defendant de novo, drawing all inferences in favor of the nonmoving party, citing El Sayed v. Hilton Hotels Corp., 627 F.3d 931. 

Based on its de novo review of BOCES motion, the Circuit Court concluded that the District Court "properly granted summary judgment to Defendants" with respect to all of Plaintiff's claims. The Circuit Court opined that Plaintiff failed to point to “sufficient evidence" that would allow “a jury to return a verdict” for Plaintiff on any of Plaintiff's claims and affirmed the District Court’s granting summary judgment to Defendant. 

Click HERE to access the Circuit Court of Appeals' ruling.

The Doctrine of Legislative Equivalency

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre case [Torre v County of Nassau, 86 NY2d 421] sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.