An arbitration award may not be confirmed by a court if it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation[Employer] appealed that portion of an arbitration award that ordered Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees' being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging the terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, based on the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine itself in the patient's room, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator reinstated the employees to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal is dismissed as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis is on the award itself." Accordingly, a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns," quoting from New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d at 327.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, OMIG notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting the claim to back salary.

* The three Employees involved were two registered nurses and a nurse aide

**Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Unlawful discrimination complaint dismissed as merely setting out legal conclusions concerning acts alleged to constitute unlawful discrimination

Absent setting out sufficient allegations of unlawful discriminatory acts in the CPLR Article 78 complaint, a petitioner's claim of unlawful discrimination will not survive the defendant's motion to dismiss  

The petitioner [Plaintiff] in this action contended that such acts as her supervisor's adjusting her time card to reflect a late arrival at work, telling Plaintiff that as a probationary employee she could be terminated at any moment and giving the Plaintiff a negative performance review were due to her disability.

Supreme Court granted the defendants-respondents' [Defendants] motion to dismiss Plaintiff Article 78 complaint alleging her employer's hostile work environment as not viable within the meaning of the New York City Human Rights Laws. Supreme Court held that Plaintiff's examples "were not sufficient allegations of discriminatory acts."

Plaintiff appealed the Supreme Court's decision. The Appellate Division unanimously affirmed the lower court's ruling.

Citing Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, the Appellate Division opined that Plaintiff's complaint failed to state a cause of action for hostile work environment under New York City's City Human Rights Law* because it does not allege that Defendants' actions occurred under circumstances that gave rise to an inference of discrimination.

Further, said the court, Plaintiff's complaint did not allege facts that would establish that she was treated less well than similarly situated probationary employees because of her disability. Rather, said the court, Plaintiff's complaint merely "asserts the legal conclusions that the  [Defendants'] actions ... were due to her disability."

In the words of the Appellate Division, "Absent sufficient allegations of discriminatory acts, plaintiff's claim against [the individually named] defendant cannot be sustained pursuant to the City Human Rights Law and was properly dismissed by the Supreme Court."

* See Administrative Code of City of New York §8-107.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06976.htm

 

The Workers' Compensation Board's determination whether a claimant violated §114-a of the Workers' Compensation Law will not be disturbed if supported by substantial evidence

The Workers' Compensation Board [Board] rejected the employer's [Employer] claim the there were procedural errors in its employee's [Claimant] claims for benefits and said that the Board would exercise its discretion to grant review of the application filed by the Claimant in consideration of "Claimant's substantial completion of question number 13 on the application for workers' compensation benefits form." The Board then reversed the decision of the Workers' Compensation Law Judge [WCLJ] holding that that Claimant had violated §114-a Workers' Compensation Law,  finding there was insufficient evidence to support the WCLJ's determination. The employer appealed the Board's decision.

The Appellate Division said that Employer principally argued that Claimant's response to question number 13 was not complete and that the Board therefore lacked the authority and discretion to review Claimant's application for benefits, citing 12 NYCRR 300.13(b).

The court rejected the Employer's argument, holding that the Board has the "authority to adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law," and the Chair of the Board may "make reasonable regulations consistent with the provisions of the statutory framework." 

Noting that Employer was correct that 12 NYCRR 300.13 [b] [1] of the Board's regulations require an applicant seeking Board review "to fill out the RB-89 form completely and in the proper format," the Appellate Division said that the Board's regulations "do not mandate denial of an incomplete application for Board review." Rather, the court explained that the regulations provide that such an "application for review maybe denied" [sic]  by the Board, in its discretion, where the application "does not comply with prescribed formatting, completion and service submission requirements."

Considering Claimant's response to question number 13 on her application for Board review, which listed numerous documents in support of her administrative appeal, the Appellate Division held that the Board:

[1] acted within its discretion in granting review of Claimant's application: and

[2] acted within its discretion to excuse any alleged defects relating to the timeliness and proper service of Claimant's application for Board review.

Addressing the merits of Claimant's application for benefits, the Appellate Division pointed out that §114-a(1) of the Workers' Compensation Law provides that a claimant who, for the purpose of obtaining workers' compensation benefits, or to influence any determination related to payment thereof:

1. Knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation;"

2. For purposes of Workers' Compensation Law §114-a (1), a fact is material "so long as it is significant or essential to the issue or matter at hand;" and

3. An omission of material information "may constitute a knowing false statement or misrepresentation".

However, the Board, declared the Appellate Division, is the sole arbiter of witness credibility and its determination as to whether a claimant violated §114-a Workers' Compensation Law "will not be disturbed if supported by substantial evidence."

After considering the evidence in the record the Appellate Division opined that the Board's finding that Claimant did not make a misrepresentation of a material fact to obtain workers' compensation benefits "is supported by substantial evidence and will not be disturbed."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06832.htm

 

Former Potter Town clerk arrested for the alleged theft of nearly $24,000 of Town monies

State Comptroller Thomas P. DiNapoli, Yates County District Attorney Todd Casella, and Yates County Sheriff Ronald Spike announced the arrest of former clerk of the Town of Potter Julie Brown for allegedly stealing nearly $24,000 in cash payments to the town.

Brown allegedly stole cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits, and building permits. She was employed by the town from January 1, 2018 until May 21, 2019, when she resigned.

Brown was charged with corrupting the government in the second degree (a Class C felony); grand larceny in the third degree / public servant (a Class C Felony); two counts of tampering with public records in the first degree (a Class D felony); scheme to defraud in the first degree (a Class E felony); and official misconduct (A Class A misdemeanor).

Arraigned in Yates County Court, Brown was released on her own recognizance. The arrest was a result of a joint investigation between the State Comptroller’s Office, the Yates County District Attorney’s Office and the Yates County Sheriff's Office.

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. 

Allegations of fraud involving public funds may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a report online at investigations@osc.ny.gov, or by mailing a report to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

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A challenge to releasing summaries of disciplinary records of New York City police officers to the public dismissed as moot following the effective date of the repeal of Civil Rights Law §50-a

Following an announcement that redacted summaries of New York City police officers' disciplinary records would be released to the public, the Patrolmen's Benevolent Association of the City of New York, Inc. [PBA] filed a petition pursuant to CPLR Article 78 seeking a court order permanently enjoining the City of New York City from publicly releasing such summaries.

Supreme Court granted the PBA's petition on the ground that "the public disclosure of the information therein would violate Civil Rights Law §50-a."

New York City appealed the Supreme Court's ruling whereupon the Appellate Division unanimously reversed the lower court's decision "on the law" and dismissed the PBA's petition as moot.

Citing Cornell Univ. v Bagnardi, 68 NY2d 583, the Appellate Division explained that as Civil Rights Law §50-a had been repealed effective June 12, 2020, "the sole basis for the permanent injunction no longer exists." Accordingly, said the court, PBA's petition was rendered moot as the result of the repeal of Civil Rights Law §50-a.

The court noted that the parties had briefed this appeal prior to the repeal of §50-a and opined that it must consider the issue of mootness nostra sponte** "because it is related to [the court's] subject matter jurisdiction."  

As no alternative grounds for relief were raised in the Article 78 petition filed by the PBA nor addressed or reserved by Supreme Court, the Appellate held that the PBA's petition was moot and dismissed its appeal.

* See §1 of Chapter 96 of the Laws of 2020.

** Nostra sponte describes an action by a panel of judges taken on the panel's own initiative and not pursuant to a request by a party in the litigation. In contrast, the term sua sponte is used to describe an action by a single presiding jurist without prompting or suggestion from a party in the litigation then pending adjudication.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06866.htm

 

Audits issued by the New York State Comptroller during the week ending November 20, 2020

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending November 20, 2020.

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

MUNICIPAL AUDITS

Village of Fort Plain – Leave Benefits (Montgomery County) Village officials did not establish appropriate controls over employee leave time. Auditors found the board did not establish comprehensive leave benefit policies and procedures. Officials also did not accurately maintain employee leave records. Leave used and compensatory time (comp time) earned was not always properly recorded or supported by village records. As a result, 133 hours of accrued comp time, valued at approximately $4,600, was not supported by an employee’s time and attendance records. In addition, 33 hours of comp time and eight hours of personal time, valued at approximately $900, were used but not deducted from employee leave records.

Town of Locke – Financial Condition (Cayuga County) The board did not effectively manage the town’s financial condition. As a result, it levied more taxes than necessary to sustain operations. The board also did not adopt budgets with sound estimates, nor did it monitor budgetary results during the year. In addition, unrestricted fund balances as of December 31, 2019 in the general and highway funds and water district were excessive, ranging from 89 percent to 536 percent of actual expenditures. The board did not adopt formal fund balance, reserve and budgeting policies, along with multiyear financial and capital plans.

City of Newburgh – Budget Review (Orange County) The city’s proposed budget includes appropriations of $67,066,159. The city’s use of approximately $4.6 million of fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen circumstances. The city could potentially face shortfalls based on revenue estimates for sales and use tax.

Town of Palermo – Procurement and Fuel Inventory (Oswego County) Town officials did not always use competitive methods when procuring goods and services or properly account for and monitor diesel and gasoline fuel. Town officials purchased $299,298 in goods and services that should have been competitively procured, however, $101,121 was purchased without competition. Town officials also overpaid a vendor by almost $2,500.

Rockland County– Budget Review The significant revenue and expenditure projections in the proposed budget are reasonable. The review considered county officials’ projections in response to the potential impact of the COVID-19 pandemic. The county’s proposed budget includes a tax levy of $146,052,165.

 SCHOOL DISTRICT AUDITS

Fayetteville-Manlius Central School District – Professional Services (Madison County and Onondaga County) District officials appropriately sought competition through requests for proposals or quotes for professional services totaling approximately $4.3 million (93 percent) of those reviewed. The district had written agreements with 18 of 19 professional service providers and payments were made in accordance with the terms of the agreements.

Tioga Central School District – Cash Management (Tioga County) Interest earnings were not maximized. District officials did not develop and manage a comprehensive investment program or comply with the district’s investment policy. Had officials invested available funds in a financial institution with higher interest rates, the district’s interest earnings could have increased by $215,120.

Tioga Central School District – Health Insurance and Special Education Cost Savings (Tioga County) District officials could achieve cost savings by offering an acceptable health insurance buyout incentive in lieu of health insurance coverage. Savings could range between approximately $10,000 and $251,000. District officials could also save approximately $43,500 by providing select special education programs in-house.

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Find out how public funds are being spent by public entities in New York State at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

 

A volunteer firefighter cannot be terminated for incompetence or misconduct "except for absenteeism at fires or meetings," absent notice and an administrative hearing

When the Board of Wardens [Board] of a volunteer fire department [Department] expelled a volunteer firefighter [Volunteer] from the fire department based on its finding that Volunteer had violated the Department's bylaws and "the Firefighter's Oath," Volunteer initiated a CPRL Article 78 action challenging the Board's action. Supreme Court denied Volunteer's petition and dismissed the Article 78 proceeding. Volunteer appealed.

The Appellate Division reversed the Supreme Court's judgment "on the law, with costs," indicating that §209-l of the General Municipal Law provides that a volunteer firefighter may not be removed from office or membership for incompetence or misconduct, except for absenteeism at fires or meetings, "unless [the volunteer is] afforded a hearing."* 

The court's decision indicates that at a meeting of the Board, which Volunteer had attended, the Board determined that Volunteer he had violated the Department's bylaws by donating department property in contravention of an order from the chief of the department.

Noting that the provision of the bylaws relied upon by the Board with respect to its expelling Volunteer authorized the chief of the department "to suspend members of the department for insubordination, refusal to follow orders, and for conduct unbecoming or detrimental to the department, and required the Board of Wardens to review such suspensions," the Appellate Division opined that the bylaw relied upon by the Board did not empower the Board to dismiss a member based on a violation of that bylaw.

Concluding that Volunteer was entitled to a hearing upon due notice and upon stated charges pursuant to General Municipal Law §209-l but had not been afforded one, the Appellate Division annulled the Board's determination and remitted the matter to the Board for a hearing and a new determination "by an impartial finder of fact."

* Citing Matter of Ferrara v Magee Volunteer Fire Dept., 191 AD2d 967, the Appellate Division noted that §209-l "by its own terms, does not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company".

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06793.htm

Determining if an alleged violation of a memorandum of understanding supplementing a collective bargaining agreement is arbitrable

On November 18, 2020, the Appellate Division, Second Department, handed down four decisions:

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County [DIA], 2020 NY Slip Op 06745; 

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County, 2020 NY Slip Op 06779;

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06780; and 

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06746.

All four cases involved the same basic issue: efforts by organizations representing employees in different collective bargaining units pursuant to the Taylor Law [Article 14 of the New York State Civil Service Law] to compel the arbitration of a dispute involving the implementation of terms set out in a "memorandum of understanding" [MOU] providing for " longevity payments" and efforts by Nassau County, as the employer, to obtain a court judgment declaring that the MOA invalid and unenforceable because Nassau Count alleged it was based upon a mutual mistake of fact.

The employee organizations had submitted grievances to the Commissioner of Police, alleging that its respective members were not receiving longevity payments in accordance with the MOA, thereby exhausting their respective administrative remedies and then demanded the matter be submitted to arbitration.

The County subsequently commenced a proceeding pursuant to CPLR Article 75 seeking to permanently stay arbitration while employee organizations countered by seeking a court orders compelling the submission of the disputes to arbitration.

Cross-referencing the four decisions, the Appellate Division opined that the grievances arising from Nassau County's decision not to implement the provisions in the relevant MOA's was arbitrable, explaining:

1. In Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 180 AD3d 1041, the court said that "Public policy in New York favors arbitral resolution of public sector labor disputes."

2. A dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test" whereby the court must:

    [a] First determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance;" and second, 

    [b] "If there is no prohibition against the arbitration," the court must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement;" and

    [c] Consider whether "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement [CBA]."

3. In the event there is no such "reasonable relationship", the issue, as a matter of law, is not arbitrable but if such a relationship is found, the court is to rule that the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

4. Agreeing with Supreme Court's determination denying the County's petition to permanently stay arbitration and granting the Detectives Assn., Inc.'s [DAI] motion to compel the County to submit to arbitration, the Appellate Division noted that the County had not identified any constitutional, statutory, or public policy prohibition to arbitrating the grievances and the issue to be resolved is whether the County and the respective employee organizations had agreed to arbitrate this dispute.

5. The arbitration provision of the relevant CBAs was broad, and there was a reasonable relationship between the subject matter of the dispute, which involved longevity payments, and the general subject matter of the CBAs. (See Matter of City of Yonkers v Yonkers Fire Fighters, Local 628 IAFF, AFL-CIO, 176 AD3d at 1199).

6. Thus, as the Court of Appeals held in Matter of Cassone, 63 NY2d 756 and Matter of Prinze [Jonas], 38 NY2d 570, the Appellate Division indicated:

    [a] The validity of the substantive provisions of the MOAs, including whether a particular MOA is invalid because of mutual mistake, is for the arbitrator to decide; and

    [b] Any issues regarding the validity and effect of the MOAs involved were for the arbitrator to determine under the relevant CBA's grievance procedures.

The several decisions are posted on the Internet as indicated below:

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County [DIA], 2020 NY Slip Op 06745, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06745.htm;

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County, 2020 NY Slip Op 06779, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06779.htm;

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06780, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06780.htm; and

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06746, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06746.htm.

 

 

Determining if an alleged violation of a memorandum of understanding supplementing a collective bargaining agreement is arbitrable

On November 18, 2020, the Appellate Division, Second Department, handed down four decisions:

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County [DIA], 2020 NY Slip Op 06745; 

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County, 2020 NY Slip Op 06779;

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06780; and 

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06746.

All four cases involved the same basic issue: efforts by organizations representing employees in different collective bargaining units pursuant to the Taylor Law [Article 14 of the New York State Civil Service Law] to compel the arbitration of a dispute involving the implementation of terms set out in a "memorandum of understanding" [MOU] providing for " longevity payments" and efforts by Nassau County, as the employer, to obtain a court judgment declaring that the MOA invalid and unenforceable because Nassau Count alleged it was based upon a mutual mistake of fact.

The employee organizations had submitted grievances to the Commissioner of Police, alleging that its respective members were not receiving longevity payments in accordance with the MOA, thereby exhausting their respective administrative remedies and then demanded the matter be submitted to arbitration.

The County subsequently commenced a proceeding pursuant to CPLR Article 75 seeking to permanently stay arbitration while employee organizations countered by seeking a court orders compelling the submission of the disputes to arbitration.

Cross-referencing the four decisions, the Appellate Division opined that the grievances arising from Nassau County's decision not to implement the provisions in the relevant MOA's was arbitrable, explaining:

1. In Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 180 AD3d 1041, the court said that "Public policy in New York favors arbitral resolution of public sector labor disputes."

2. A dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test" whereby the court must:

    [a] First determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance;" and second, 

    [b] "If there is no prohibition against the arbitration," the court must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement;" and

    [c] Consider whether "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement [CBA]."

3. In the event there is no such "reasonable relationship", the issue, as a matter of law, is not arbitrable but if such a relationship is found, the court is to rule that the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

4. Agreeing with Supreme Court's determination denying the County's petition to permanently stay arbitration and granting the Detectives Assn., Inc.'s [DAI] motion to compel the County to submit to arbitration, the Appellate Division noted that the County had not identified any constitutional, statutory, or public policy prohibition to arbitrating the grievances and the issue to be resolved is whether the County and the respective employee organizations had agreed to arbitrate this dispute.

5. The arbitration provision of the relevant CBAs was broad, and there was a reasonable relationship between the subject matter of the dispute, which involved longevity payments, and the general subject matter of the CBAs. (See Matter of City of Yonkers v Yonkers Fire Fighters, Local 628 IAFF, AFL-CIO, 176 AD3d at 1199).

6. Thus, as the Court of Appeals held in Matter of Cassone, 63 NY2d 756 and Matter of Prinze [Jonas], 38 NY2d 570, the Appellate Division indicated:

    [a] The validity of the substantive provisions of the MOAs, including whether a particular MOA is invalid because of mutual mistake, is for the arbitrator to decide; and

    [b] Any issues regarding the validity and effect of the MOAs involved were for the arbitrator to determine under the relevant CBA's grievance procedures.

The several decisions are posted on the Internet as indicated below:

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County [DIA], 2020 NY Slip Op 06745, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06745.htm;

County of Nassau v Detectives Assn., Inc., of the Police Dept. of Nassau County, 2020 NY Slip Op 06779, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06779.htm;

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06780, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06780.htm; and

County of Nassau v Police Benevolent Assn. of the Police Dept. of the County of Nassau, 2020 NY Slip Op 06746, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06746.htm.

 

 

Court dismisses Article 78 petition for failure to allege acts of employment discrimination in violation of New York State's or New York City's Human Rights Laws

A CPLR Article 78 petition alleging unlawful discrimination filed by the petitioner [Plaintiff] alleged that Plaintiff 's employment with the New York City Department of Correction [Correction] was terminated because of his alleged disabilities due to asthma, chronic obstructive pulmonary disease [COPD] and cancer.

Supreme Court dismissed Plaintiff 's Article 78 action "for failure to state a cause of action for employment discrimination under the State or City [Human Rights Laws]." The court observed that Plaintiff's Article 78 petition "does not contain any factual allegations showing that [Plaintiff 's] employment was terminated under circumstances giving rise to an inference of [unlawful] discrimination." Plaintiff appealed the Supreme Court's decision.

The Appellate Division said that assuming Correction knew of Plaintiff 's asthma and COPD, it promoted Plaintiff twice although he suffered from those medical conditions at the time. Although Plaintiff contends that he was subsequently demoted, his complaint does not state why he was demoted or allege that he was demoted because of his medical conditions.*

The complaint states that Plaintiff took an approved medical leave of absence for treatment of his cancer and that he was discharged about 10 months after his leave started and 8 months after he returned to duty.

The Appellate Division opined that this passage of time "is too long to establish any causal connection between any decisionmaker's knowledge of his cancer or medical leave and [Plaintiff 's] discharge to raise an inference of discrimination." Further, said the court, Plaintiff's complaint "does not allege that any decisionmakers made remarks that showed any discriminatory intent" nor does his petition allege facts that would establish that similarly situated persons who did not share his alleged disabilities were treated more favorably than he was.

Although Plaintiff was not required to plead facts that would establish that similarly situated persons who did not share his alleged disabilities were treated more favorably than he was to state a claim of unlawful discrimination, Plaintiff's complaint does not allege any other facts that establish circumstances  giving rise to an inference of discriminatory intent.

According, said the Appellate Division, Supreme Court's dismissal of Plaintiff's Article 78 petition was proper.

* The Appellate Division noted that Plaintiff 's demotion predated his cancer diagnosis.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06700.htm.

 

Judicial review of an arbitration award issued following an Education Law §3020-a disciplinary hearing

An Education Law §3020-a disciplinary hearing arbitrator issued an award that, in part, directed the City School District of the City of New York [DOE] to reinstate a former school principal [Principal] to particular DOE principal position. DOE filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking a court order vacating the arbitrator's award.

Supreme Court, finding that the arbitrator exceeded her authority by ordering the reinstatement of Principal to a specific school, granted DOE's petition to vacate that part of the arbitrator's award. Supreme Court also dismissed Principal's companion CPLR Article 78 petition seeking to enforce the arbitration award. Principal appealed the Supreme Court's ruling.

The Appellate Division unanimously affirmed Supreme Court's judgment, noting that Supreme Court had jurisdiction to adjudicate the matter pursuant to Education Law §3020-a(5) which "specifically provides for judicial review of arbitrator's decisions pursuant to CPLR [§]7511."

Citing Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90, the Appellate Division concluded:

1. Supreme Court had correctly determined that "the arbitrator exceeded her authority by ordering the reinstatement of [Principal] to a specific school, as the authority to place pedagogical staff is within DOE's sole purview;" and 

2. Principal "was not cleared" of all of the charges and specifications filed against him."

The Appellate Division then addressed a CPLR Article 78 proceeding initiated by Principal and opined that "since the [Supreme Court] correctly determined in the article 75 proceeding that [Principal was] not entitled to reinstatement at his formerly assigned school, and that the arbitrator exceeded her authority by rendering a contrary determination, there [was] no basis for mandamus relief to enforce the arbitrator's decision."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06476.htm.