Finding a reasonable relationship between the subject matter of a grievance and certain provisions set out in a collective bargaining agreement is often the key to submitting the dispute to arbitration

The Yonkers City School District School Board [Board] and the Yonkers Federation of Teachers [YFT] were parties to a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law". YFT filed a grievance alleging that "someone disclosed confidential information to the public" related to disciplinary charges involving two tenured teachers represented by YFT filed a "contract grievance," claiming a violation of the Board's Code of Ethics and the relevant CBA, and ultimately demanded that the matter be submitted to arbitration. 

The Board objected to submitting the issue to arbitration and commenced a CPLR Article 75 proceeding seeking a court order to permanently stay the arbitration demanded by YTF. YTF, in response, filed a motion to compel arbitration. The Supreme Court dismissed the Board's petition and granted YFT's motion seeking to compel arbitration of its grievance whereupon the Board appealed the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision. The court explained that "Public policy in New York favors arbitral resolution of public sector labor disputes," noting, however, that a dispute between a public sector employer and a public employee organization concerning a provision set out in a CBA will survive a motion to stay the arbitration if it fails the "two-prong test" used by New York State courts in resolving such matters.

The first test, said the court, is determining if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If no such prohibition is found, the second test is for the court to determine if the parties did, in fact, agree to arbitrate the particular dispute.

The Board, in the course of its argument before the Appellate Division, asserted, for the first time, that the arbitration of YFT's grievance was prohibited by General Municipal Law §806 and public policy, contending that the Board had "reserved its right to adopt the Code of Ethics authorized by the statute."

With respect to the first test, the Appellate Division opined that the Board may raise such an argument for the first time on appeal, citing  Matter of NiagaraWheatfield Adm'rs Assn. [NiagaraWheatfield Cent. School Dist.], 44 NY2d 68. The court, however, rejected the Board's argument as being without merit, pointing out that the fact that a violation of the Board's Code of Ethics is a potential basis for disciplinary action does not render it nonarbitrable.

Turning to the second test, the Appellate Division said that the Board contended that the grievance is excluded from arbitration as there is no reference in the CBA to the Code of Ethics.

The Appellate Division rejected this contention as well, explaining that when a court is analyzing whether the parties did, in fact, agree to arbitrate the particular dispute, the court "is merely to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA," citing Matter of Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 98 AD3d 665.

The Appellate Division observed that it has held that the arbitration provision of the CBA at issue here was broad and found that there was a reasonable relationship between the subject matter of the instant dispute, the disclosure to the public of confidential information regarding disciplinary charges against tenured teachers, and the general subject matter of the CBA, including the terms and conditions of employment.

Thus, said the court, it agreed with the Supreme Court's determination denying the Board's petition seeking a permanent stay of YFT's demand that its grievance be submitted to arbitration and granting the YFT's motion to compel the arbitration of its grievance.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06524.htm

 

Court's decision demonstrates why lawyers should encrypt e-communications

A court decision illustrating why lawyers [and others] should encrypt e-communications has been posted by Nicole Black, a Rochester, New York attorney, on her blog Sui Generis. The URL is https://nylawblog.typepad.com/suigeneris/2020/12/case-shows-why-lawyers-must-encrypt-e-communications.ht

The courts will not vacate an administrative decision unless the record shows that the decision was arbitrary, unreasonable, irrational or indicative of bad faith

The genesis of this CPLR Article 78 action was a school board's [Board] decision to decommission 20 school buses and to privatize portions of its bus routes because of budgetary issues confronting the school district. As a result, Board eliminated 20 school bus driver positions.

The employee organization [Union] representing the school bus drivers then initiated a  CPLR Article 78 action seeking a court order annulling the Board's action, contending that the Board's determination was arbitrary and capricious and was made in bad faith.

Supreme Court granted the Board's motion to dismiss the Union's Article 78 petition and the Union appealed. The Appellate Division, however, affirmed the Supreme Court's "judgment and order, with costs."

Addressing the merits of the Union's argument, the Appellate Division explained that "[i]n applying the 'arbitrary and capricious' standard ... a court inquires whether the determination under review had a rational basis." Further, said the court, the challenged administrative decision should not be disturbed by the court "unless the record shows that the agency's action was 'arbitrary, unreasonable, irrational or indicative of bad faith.'"

In this instance, opined the court, "the Board's decision to decommission 20 buses and to privatize portions of its bus routes because of budgetary issues facing the District, which resulted in its determination to eliminate 20 bus driver positions, had a rational basis and was not arbitrary and capricious." 

Citing the Court of Appeals decision in Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, the Appellate Division opined that "courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives."

Agreeing with the Supreme Court's determination to dismiss the Union's CPLR Article 78 petition, the Appellate Division denied the Union's appeal.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06791.htm

 

An appointing authority's refusal to participate does not prevent the hearing officer or arbitrator from holding the hearing in absentia and issuing a decision

The New York State Department of Corrections and Community Supervision [DOC] served a notice of discipline on an employee [Individual] setting out five charges against the Individual, each of which centered around the same operative facts -- that the Individual allegedly filed false or misleading incident reports and complaints against her supervisor, with the only difference in the charges being the person or entity to which the Individual's remarks were directed. 

Individual's collective bargaining representative [CSEA] filed a grievance  pursuant to the disciplinary grievance procedure set out in the relevant collective bargaining agreement [CBA]  and the matter was eventually submitted to arbitration, the final step in the contract disciplinary grievance procedure.

CSEA moved to dismiss three of the five charges and a filed a separate motion to preclude certain evidence from being admitted at the disciplinary hearing prior to the arbitration hearing. After allowing the parties to submit their respective arguments in writing, the arbitrator granted CSEA's motion to dismiss in part, dismissing one of the three charges CSEA asked to be withdrawn. The arbitrator also granted CSEA's motion to preclude the introduction of certain evidence in full.

DOC then advised the arbitrator that it would not appear for the hearing unless the arbitrator vacated her earlier decision and reinstate the charge she had dismissed pursuant to CSEA's motion. The arbitrator and DOC subsequently exchanged correspondence over a number of weeks in which DOC reiterated several times that it would not proceed unless all charges — including the charge dismissed by the arbitrator — were heard. Finally DOC move to have the arbitrator recuse herself from the proceeding.

The arbitrator declined to recuse herself, proceeded with the matter notwithstanding the absence of DOC and issued a decision and award without holding an evidentiary hearing. 

The arbitrator dismissed all of the surviving charges and directed that DOC reinstate Employee to her former position "with full back pay and benefits." DOC appealed the arbitrator's award.

The Appellate Division dismissed DOC's appeal, agreeing with the arbitrator that DOC "[did] not meet [its] burden of proof established in the [CBA]" since it "presented no evidence or testimony to prove that [Employee was] guilty of the alleged misconduct identified in the ... notice of discipline."

Finding that DOC "did not waive its right to challenge any of the issues by refusing to participate in the hearing and that the arbitrator exceeded her authority under the relevant CBA provisions by dismissing one charge prior to an evidentiary hearing, Supreme Court granted DOC's cross motion, vacated the arbitration award in its entirety and remanded the matter for "rehearing before a new arbitrator." CSEA appealed Supreme Court's decision.

The Appellate Division reversed the Supreme Court's ruling, holding that the arbitrator acted within her authority and in a manner consistent with the requirements of the CBA and the CPLR. Noting that public policy and the courts have long favored parties' efforts to resolve their disputes by means other than litigation, namely through the alternative submitting the issue to mediation or arbitration, the Appellate Division explained that "[T]he announced policy of this [s]tate favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties," citing Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91.

Further, declared the Appellate Division, an arbitration award "must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached," although it may be vacated when "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Thus "[c]ourts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted law or facts," noting the ruling handed down in Shenendehowa Cent. School Dist. Bd. Of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 90 AD3d 1114.

The Appellate Division then reversed the Supreme Court's the order "on the law" and granted CSEA's application to confirm the arbitration award while denying DOC's cross motion to vacate the arbitration award.

Another case, Aures v Buffalo Board of Education, 272 A.D.2d 664, presented a similar situation.

In Aures, the employer, the Buffalo City School District, failed to appear at an unemployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing “in absentia” and awarded unemployment insurance benefits to the claimant seeking unemployment insurance benefits. Rejecting Buffalo’s appeal challenging the award of such benefits, the Appellate Division ruled that the determination of the Unemployment Insurance Administrative Law Judge was binding on the parties.

The decision in Matter of the Arbitration between CSEA and DOC is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07007.htm.

The exhaustion of administrative remedies is a prerequisite to initiating a judicial challenge to a final administrative decision

Petitioner [Facility] in this CPLR Article 78 action to review a determination by the New York State Department of Health's Office of the Medicaid Inspector General [OMIG] appealed the order and judgment of Supreme Court dismissing Plaintiff's Article 78 petition.

OMIG had issued its final audit report of an assisted living facility's [Facility] Assisted Living Program applications for Medicaid reimbursement and commenced efforts to recover alleged over-payments made to Facility. 

Facility requested an administrative hearing to challenge OMIG's audit report's findings. On the same day Facility initiated a CPLR Article 78 proceeding contending that OMIG's report "was affected by an error of law and was arbitrary, capricious, and an abuse of discretion" in an effort to obtain a court order annulling OMIG's final audit report and obtain certain other judicial relief. OMIG then cross-moved to dismiss Facility's Article 78 petition, arguing that Facility had failed to exhaust its administrative remedies before seeking judicial intervention. 

Supreme Court granted OMIG's cross motion to dismiss the Facility's petition and Facility appealed that ruling.

The Appellate Division sustained the Supreme Court's holding that Facility was required to exhaust its administrative remedies before commencing its Article 78 special proceeding. The court opined that "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate [its  objection] in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.*

Addressing Facility's contention that it had raised a constitutional challenge alleging that OMIG exceeded its authority and violated Article III, §1, of the New York State Constitution in arriving at its ruling, the Appellate Division explained that "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established." Further, said the Court, "... the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief."

Noting that Facility's constitutional claim hinged on factual issues concerning OMIG reaching its determination, the Appellate Division opined that such issues "must first be addressed in an administrative proceeding."

The Appellate Division also said it agreed with the Supreme Court's finding that Facility "failed to demonstrate that resort to an administrative appeal would be futile or that it would suffer irreparable injury based upon its conclusory claim of financial distress" and affirmed the lower court's order granting OMIG's motion to dismiss Facility's petition for failure to exhaust administrative remedies.

* The Appellate Division, however, also noted that "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" citing see Town of Oyster Bay v Kirkland, 81 AD3d 812.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07054.htm.

 

An appointing authority may not require an employee to perform "out-of-title" work except in an emergency

The Watertown Professional Firefighters' Association, Local 191 [Association] commenced this CPLR Article 78 proceeding, later converted into a declaratory judgment action, seeking a court order prohibiting the City of Watertown [City] from [1] assigning a fire captain to perform municipal training officer (MTO) duties and [2] assigning  firefighters to ride in the right front seat of the fire department's rescue vehicle and to perform certain duties alleged to those of captain.

The Association contended that both such assignments constituted out-of-title work in violation of Civil Service Law §61(2).* 

Supreme Court's ruled that:

1. The appointing authority may not designate a firefighter to serve as an "acting captain" except in legitimate emergency situations; and

2. The appointing authority may appoint a fire captain to perform "municipal training officer duties."

In the appeal that followed, the Appellate Division said it agreed with the Supreme Court's rulings that the fire captain was not assigned out-of-title work with respect to being assigned MTO duties and that the City was prohibited from appointing firefighters to acting captain positions except in legitimate emergency situations.

The Appellate Division, however, noted that Supreme Court "failed to declare the rights of the parties with respect to the MTO duties performed by the fire captain." Citing Skalyo v Laurel Park Condominium Bd. of Mgrs., 147 AD3d 1358, the Appellate Division modified the lower court's decision by "making the requisite declaration."

* §61(2) of the Civil Service Law provides as follows: No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06898.htm

 

The authority of a governor of New York State to grant individuals reprieves, commutations and pardons

On October 16, 2018, New York Governor Andrew M. Cuomo signed into law as Chapter 374 of the Laws of 2018 a bill permitting the "people" of New York State to pursue state charges against individuals who were "accused of federal crimes and receive a presidential pardon."*

With respect New York State governors issuing a "state pardon or reprieve," Article IV, §4 of New York State's Constitution provides that the "governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

Clearly this power to pardon for offenses other than for treason and in cases of impeachment is not available to a sitting governor to grant in anticipation of an individual's being convicted of an offense at some date in the future in contrast to being available to a sitting governor after the individual has been convicted of the offense alleged or in the event the individual entered a plea of guilty to the offense alleged in open court.**

May a governor pardon himself or herself for an offense? 

If a governor were to attempt to do so it appears that in so doing he or she has created a "Catch 22" type situation -- a dilemma from which there is no escape because of mutually conflicting or dependent conditions -- made famous in author Joseph Heller's novel Catch-22.

Assuming, but not conceding, that a governor of New York State could pardon or reprieve himself or herself for an alleged offense, he or she could only do so after having been tried and convicted of the offense or had entered a plea of guilty of the offense before or in the course of a trial in the normal course of providing him or her with due process of law.

However, §30.1(e) of New York State's Public Officers Law provides, in pertinent part, that "Every office shall be vacant upon the incumbent's conviction of a felony, or a crime involving a violation of his oath of office."

As any person eligible for an Article IV, §4 pardon or reprieve is so eligible only by reason of his or her conviction or admission of being guilty of a qualifying offense, an effort by a governor to pardon or grant a reprieve to anyone, including himself or herself, following his or her conviction, or his or her entry of a plea of guilty of the alleged offense, may find himself or herself trapped in a "Catch 22" situation in the event his or her conviction or guilty plea of the offense charged results in his or her automatic "removal from office" pursuant to Public Officers Law §30.1(e) and thus his or her forfeiting any and all authority to grant a pardon or reprieve.

On the other hand, should an individual be found not guilty of the alleged offense, there appears to be no basis, or indeed reason, for a governor to issue a pardon or reprieve under the circumstances as the individual is not exposure to an action "by the people" for the same offense in the future as New York State's Criminal Procedure Law §40.20.1 provides that "A person may not be twice prosecuted for the same offense."

In any event, a pardon or reprieve by a governor is in the nature of "neutralizing a conviction for an offense" by the then sitting governor granted to an individual earlier found guilty of committing an offense in contrast to a sitting governor's effort to neutralize the conviction of an individual found guilty of an offense after such governor has left office.

* New York State's Penal Law was amended by adding a new section, §40.51, authorizing the prosecution of individuals "by the people" of New York State in the event an individual was "granted a reprieve, pardon or other form clemency" by the President of the United States for an offense pursuant to the provisions of §2 of Article II of the United States Constitution "when certain conditions are met" by deeming any federal prosecution of the individual not to have occurred.

** See Depamphilis v Kelly, 107 AD3d 611. A plea of guilty to the offense entered in open court is deemed to be a conviction of the offense.

 

An erroneous statement by a public employee typically does not constitute misconduct sufficient to warrant applying the doctrine of estoppel

Citing 8 NYCRR 279.4(a), the New York State Education Department's Office of State Review [OSR] dismissed the appeal submitted by a party [Plaintiff] unhappy with the decision of the impartial hearing on the ground that the appeal  was untimely filed.

8 NYCRR 279.4(a) provides that a party electing to appeal the hearing officer decision must file the appeal within 40 days of the date on which the hearing officer's decision was issued.*

In a proceeding pursuant to CPLR Article 4 [Special Proceedings] and Education Law §4404(3),** Plaintiff conceded that his appeal was untimely but his lateness  should be excused because an OSR employee gave him "erroneous advice" resulting in his serving his request for review 43 days after the hearing officer's decision was issued.

Supreme Court denied the Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling to the Appellate Division, contending that as erroneous advice from an employee of the OSR was the cause of his filing an untimely appeal, his late filing of his appeal should be excuse under color of the Doctrine of Estoppel.

Citing Bender v New York City Health and Hospitals Corp., 38 NY2d 662, the Appellate Division explained that the Doctrine of Estoppel "is only applicable to a government agency when the agency acts or comports itself wrongfully or negligently, inducing reliance by a party who changes his or her position to his or her detriment or prejudice."

The court opined that the alleged erroneous statement made by the OSR employee does not constitute misconduct sufficient to warrant applying the doctrine of estoppel as only "a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon, will justify the imposition of estoppel" on a government entity.

The Appellate Division then affirmed Supreme Court's ruling, with costs.

* 8NYCRR 279.4 provides that "[a]party seeking review (petitioner) shall personally serve a notice of request for review and a request for review upon the opposing party (respondent), within 40 days after the date of the decision of the impartial hearing officer sought to be reviewed."

** Education Law §4404(3) provides for the review of the determination of a state review officer in matters concerning children with disabilities.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06530.htm

 

Absences during an employee's probationary period typically extends the employee's probationary period for an equivalent period of time

Section 5.28[b] of the Personnel Rules and Regulations of the City of New York (PRR §5.28[b])  provides that a probationary employee's probationary period is to be "extended by the number of days [the employee did] not perform the duties of the position."

An individual  [Plaintiff] serving an 18 month probationary period filed a CPLR Article 78 petition challenging the decision of the New York City Administration for Children's Services [ACS] to extend her probationary period pursuant to PRR §5.28[b] "by the number of days [she did] not perform the duties of the position" in consideration of her absences charged to her annual leave credits or her sick leave credits or her absences when "she on leave without pay" during her probationary period.

Supreme Court granted Plaintiff's Article 78 petition seeking a court order annulling the ACS's determination terminating Plaintiff's employment and directed ACS to reinstate Plaintiff to her former position of Child Protective Specialist [CPS] subject to her satisfactory completion of a six-month probationary period. 

The court also directed the ACS to provide "a reasonable accommodation for [Plaintiff's] disabling condition* subject to the usual agency rules and procedures" should the Plaintiff so request.

The Appellate Division unanimously reversed the Supreme Court's decision, on the law, denied Plaintiff's petition and dismissed the proceeding brought by Plaintiff against ACS pursuant to CPLR Article 78.

Citing Matter of Kaufman v Anker, 42 NY2d 835, the Appellate Division opined that "[b]ased upon the record presented, the [ACS'] determination that [Plaintiff] fell short of completing the probationary period was rational and not arbitrary or capricious or contrary to law."

Addressing Plaintiff's assertion that her "overtime days" should be counted in determining the completion of her 18 months probationary period, the court explained that although PRR §5.28[b] makes provision for extending a probationary period, day-for-day, for days on which the employee is absent from work, it contains "no provision for shortening the period, from 18 months to something less, for extra work days beyond the five standard days a week."

 The Appellate Division then observed that "existing case law has been hesitant to reduce the period of probationary service" for absences during a probationary period such as the probationer's serving on jury duty, referring the court's decision in Tomlinson v Ward, 110 AD2d 537.

The bottom line: The Appellate Division held that Plaintiff "never completed her probationary period and [consequently] she was not entitled to reinstatement to her former position".

The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during the required probationary period, that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent.** [see Mazur, 98 AD2d 974]. 

For example, 4 NYCRR 4.5(f),***a Rule adopted by the New York State Civil Service Commission pursuant to the authority set out in Civil Service Law §63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.” However, appointing authorities may be granted authority to waive a limited period of such absence consistent with the rules of the responsible civil service commission.

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 114 A.D.2d 78]. 

Also, in Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U); affirmed 51 AD3d 538, the court concluded that a probationary period is extended as the result 0f the employee's disciplinary suspension from his position for off duty misconduct.

In contrast, §§243.9 and 243.9-a of the New York State Military Law provides that a probationary employee called to military duty before completing his probationary period is deemed to have satisfactorily completed the required probationary period upon the employee's honorable discharge from such military duty.

* The Appellate Division's decision notes that Plaintiff "left ACS of her own accord to work at the City Clerk's office, during a time when ACS was still engaging in an interactive dialogue and attempting to accommodate her disability. The New York City Human Rights Law, said the court, " ... does not require the City to rehire an employee who voluntarily departed for employment elsewhere."

** See Matter of Mazur, 98 AD2d 974.

*** 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

The CPS decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06699.htm

 

Considering a plaintiff's request to extend the time to serve a notice of claim on a municipal entity and its officers and employees

A New York City Sanitation Department [DSNY] employee [Plaintiff] sustained injuries when he tripped and fell on a public sidewalk while working. A DSNY supervisor responded to the scene and promptly prepared an unusual occurrence report describing the location and circumstances of the line-of-duty injury. The supervisor's report included the statement that the Plaintiff "TRIPPED ON A RAISED PIECE OF SIDEWALK " [sic]. 

Plaintiff subsequently commenced a proceeding pursuant to General Municipal Law §50-e(5) seeking approval to serve a late notice of claim on the City of New York [City]. The City objected and Supreme Court denied the Plaintiff's petition. Plaintiff appealed the Supreme Court's ruling.

Although General Municipal Law §50-e.1(a) requires that a notice of claim be served on a public corporation as defined in the general construction law, or any officer, appointee or employee of such an entity, within ninety days after the claim arises,*  §50-e(5) also provides for a court's granting leave to serve a late notice of claim on a municipality or its officers and employees as a matter of the exercise of the court's discretion.

The Appellate Division reversed the Supreme Court's ruling, "on the facts and in the exercise of discretion, with costs," and granted Plaintiff's petition. The court explained that in determining whether to extend the time to serve a notice of claim, the court will consider, in particular:

1. Did the municipal entity receive actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter?;

2. Did the claimant have a reasonable excuse for the failure to timely serve a notice of claim?; and

3. Did the delay substantially prejudice the municipal entity in its defense on the merits?

In so doing the Appellate Division said that "the question of whether actual knowledge was timely acquired is considered to be the most important factor, citing Miskin v City of New York, 175 AD3d at 685. Further, said the court, a request for leave to serve a late notice of claim "is addressed to the sound discretion of the court ... keeping in mind that the statutory notice requirement is to be liberally construed."

Although the Appellate Division said it agreed with Supreme Court that Plaintiff "failed to proffer a reasonable excuse for his delay, since his claims of ignorance and lack of awareness of the severity of his injuries were not supported by any medical evidence and were patently insufficient," nevertheless the court opined that the lack of a valid excuse for the delay is not necessarily fatal to a petition for leave to serve a late notice of claim where other factors militate in favor of granting the petition, citing Williams v Nassau County Med. Ctr., 6 NY3d 531.

In the instant case the court concluded that "the balance of the statutory factors in this case warrants the granting of the petition," noting that a supervisor had prepared and filed an "unusual occurrence report" shortly after Plaintiff's accident which provided the City with "timely actual knowledge of the essential facts constituting the claim, since its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed."

Noting that Plaintiff had [a] satisfied his burden of presenting some evidence or plausible argument to support a finding of no substantial prejudice to the City in defending against Plaintiff's claim and the City [b] failed to rebut this showing with particularized evidence of substantial prejudice, the Appellate Division held that Supreme Court "improvidently exercised its discretion in denying [Plaintiff's] petition for leave to serve a late notice of claim."

* In wrongful death actions, however, the ninety day period to file a timely action begins running from the date of the appointment of a representative of the decedent's estate.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06776.htm

 

An impartial arbitrator or hearing officer is essential to providing administrative due process

Supreme Court vacated an arbitration award that had been made in the Employee's favor. The employee appealed Supreme Court's ruling. 

The Appellate Division unanimously affirmed the lower court's decision.

The Appellate Division opined that "clear and convincing evidence" supported Supreme Court's  finding of bias on the part of the arbitrator against the employer, the New York City Department of Education [DOE], concluding that such bias warranted vacating the arbitrator's award made in favor of the employee.

The Appellate Division noted that the arbitrator:

1. Made findings against DOE that were either entirely unsupported or directly refuted by the record;

2. Repeatedly interrupted DOE's examination of witnesses;

3. Repeatedly reminded witnesses that the employee's job was at stake;

4. Assisted the employee's counsel in cross-examining witnesses; and

5. Refused to permit DOE's counsel to make a record.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06959.htm

 

New York State vs. COVID-19 -- November 30, 2020 Update

On November 30, 2020Governor Andrew M. Cuomo again updated New Yorkers on the state's progress in the ongoing COVID-19 pandemic.

On November 30, 2020, Governor Andrew M. Cuomo today updated New Yorkers on the state's progress during the ongoing COVID-19 pandemic. 

"All the experts spoke about what was going to happen when we reach the fall—there's colder weather, more people are indoors and more people are now traveling. While there has been a change in behavior amongst the majority of people who understand and follow protocols, it's as critical as ever we continue our work and focus on preparing this state, and its residents, for winter," Governor Cuomo said. "We are already in the holiday season, and that is going to have a profound effect. It already has. It had an effect when people started to travel for the holiday season, when they started to travel for Thanksgiving, when students to go home, when people started to shop, and when they started to move around. Increased mobility and social activity equals increased viral infection rate. It is directly proportionate. And we talked about this before Thanksgiving, you are not just going into the Thanksgiving weekend, you're starting a 37-day holiday period. It's not a one- or two-day affair—it's going to be the entire holiday season. New Yorkers need to stay vigilant, wash their hands, wear masks, socially distance and follow the rules as we move through the next 37 days and beyond."     

The Governor noted that the positive testing rate in all focus areas under the state's Micro-Cluster strategy is 6.22 percent, and outside the focus zone areas is 4.02 percent. Within the focus areas, 37,632 test results were reported yesterday, yielding 2,341 positives. In the remainder of the state, not counting these focus areas, 111,342 test results were reported, yielding 4,478 positives. Full results for tests reported November 29, 2020, the day prior, the current 7-day rolling average, and last two weeks is below:  

STATEWIDE	11/8- 11/14 % Positive	11/15- 11/21 % Positive	Current 7-day rolling average	Day Prior (11/28) % Positive	Yesterday (11/29) % Positive
All focus area statewide % positive	4.81%	4.51%	5.38%	5.83%	6.22%
Statewide % positive with all focus areas included	2.86%	2.89%	3.71%	4.27%	4.57%
Statewide % positive without all focus areas included	2.47%	2.44%	3.19%	3.75%	4.02%

 

Micro-cluster zone 7-day average positivity rates for November 30, 2020, yesterday, the day before, last week, and the week prior is below:  

FOCUS ZONE	11/8- 11/14 % Positive	11/15- 11/21 % Positive	Day Prior 7-day Rolling Average	Yesterday 7-day Rolling Average	Current 7-day Rolling average
Erie orange-zone focus area % positive	7.22%	7.30%	7.14%	7.20%	7.43%
Erie Yellow-zone focus area % positive	5.34%	7.36%	6.81%	6.83%	6.61%
Niagara Yellow -zone focus area % positive	5.10%	4.44%	7.16%	7.35%	7.89%
Monroe Orange-zone focus area % positive	4.41%	4.17%	5.79%	6.59%	7.04%
Monroe Yellow-zone focus area % positive	5.95%	3.58%	4.90%	5.62%	6.44%
Onondaga Orange-zone focus area % positive	6.26%	5.34%	5.10%	6.13%	5.98%
Onondaga Yellow-zone focus area % positive	6.03%	4.50%	4.60%	5.09%	5.13%
Queens Kew Garden Hills/Forest Hills/Astoria yellow-zone focus area % positive	3.40%	3.40%	3.52%	3.61%	3.78%
Bronx East Yellow-zone focus area % positive	3.81%	3.52%	4.51%	4.47%	4.74%
Bronx West Yellow -zone focus area % positive	3.80%	4.70%	4.30%	4.64%	4.81%
Brooklyn Yellow-zone focus area % positive	3.92%	3.70%	5.32%	5.64%	5.73%
Rockland Yellow-zone focus area % positive	3.55%	3.39%	3.90%	3.94%	4.23%
Chemung Orange-zone focus area % positive	4.59%	4.71%	6.86%	6.46%	7.03%
Staten Island Orange-zone focus area % positive	5.24%	4.96%	4.73%	4.75%	5.09%
Staten Island Yellow-zone focus area % positive	3.75%	3.61%	3.94%	4.08%	4.18%
Tioga Yellow-zone focus area % positive	10.81%	5.60%	2.38%	3.10%	3.74%
Orange Middletown - Yellow-zone focus area % positive	3.81%	5.41%	3.56%	3.81%	4.78%
Orange Newburgh - Yellow-zone focus area % positive	8.07%	7.89%	8.85%	8.57%	7.76%
Manhattan-Washington Heights-Yellow-zone focus area % positive	3.23%	3.39%	3.12%	3.40%	3.73%
Nassau-Great Neck-Yellow-zone focus area % positive	3.69%	3.69%	3.01%	3.93%	4.34%
Nassau Massapequa Park -Yellow-zone focus area % positive	4.64%	4.15%	4.76%	5.12%	5.54%
Suffolk-Hampton Bays-Yellow-zone focus area % positive	9.26%	5.69%	6.28%	7.00%	6.68%
Suffolk-Riverhead-Yellow-zone focus area % positive	4.80%	4.85%	3.37%	3.49%	2.87%
Westchester Peekskill - Yellow-zone focus area % positive	10.36%	7.15%	6.14%	7.23%	8.43%
Westchester Ossining - Yellow-zone focus area % positive	9.88%	10.22%	9.97%	9.96%	10.65%
Westchester Tarrytown/Sleepy Hollow - Yellow-zone focus area % positive	8.47%	8.27%	7.37%	7.05%	6.38%
Westchester Yonkers - Yellow-zone focus area % positive	4.48%	4.11%	4.95%	4.84%	5.03%
Westchester New Rochelle - Yellow-zone focus area % positive	6.46%	5.68%	5.04%	5.44%	6.19%
Westchester Port Chester Orange-zone focus area % positive	9.34%	7.59%	7.34%	7.21%	7.91%

 

November 30, 2020's data is summarized below:  

Patient Hospitalization - 3,532 (+160)

Patients Newly Admitted - 457

Hospital Counties - 54

Number ICU - 681 (+14)

Number ICU with Intubation - 325 (-1)

Total Discharges - 85,556 (+269)

Deaths - 54

Total Deaths - 26,747

   

Each region's percentage of positive test results reported over the previous three days is as follows:

REGION	FRIDAY	SATURDAY	SUNDAY	CURRENT 7-DAY AVERAGE
Capital Region	3.4%	3.4%	3.7%	3.24%
Central New York	8.4%	6.9%	4.2%	4.79%
Finger Lakes	6.6%	6.6%	6.6%	5.76%
Long Island	3.4%	4.1%	4.5%	3.76%
Mid-Hudson	4.8%	4.9%	5.1%	4.55%
Mohawk Valley	4.7%	5.1%	4.6%	4.42%
New York City	2.9%	3.4%	3.9%	2.92%
North Country	3.1%	2.4%	3.0%	2.80%
Southern Tier	4.4%	4.1%	3.8%	2.11%
Western New York	7.4%	7.2%	7.4%	6.94%

 

Each New York City borough's percentage of positive test results reported over the previous three days is as follows:

BOROUGH	FRIDAY	SATURDAY	SUNDAY	CURRENT 7-DAY AVERAGE
Bronx	4.1%	4.1%	4.7%	3.97%
Brooklyn	2.9%	2.9%	3.5%	2.72%
Manhattan	2.2%	2.7%	3.1%	1.94%
Queens	3.1%	3.5%	4.2%	3.24%
Staten Island	3.8%	5.1%	5.8%	4.39%

 

Of the 647,980 total individuals who tested positive for the virus, the geographic breakdown is as follows:

County	Total Positive	New Positive
Albany	5,816	104
Allegany	1,042	23
Broome	5,367	59
Cattaraugus	1,135	21
Cayuga	890	21
Chautauqua	1,580	18
Chemung	3,087	39
Chenango	643	4
Clinton	461	2
Columbia	1,027	7
Cortland	1,061	17
Delaware	363	4
Dutchess	7,284	87
Erie	25,427	485
Essex	286	1
Franklin	266	0
Fulton	508	13
Genesee	1,028	31
Greene	695	7
Hamilton	46	1
Herkimer	709	18
Jefferson	566	15
Lewis	368	8
Livingston	714	14
Madison	951	7
Monroe	15,660	522
Montgomery	494	10
Nassau	60,701	520
Niagara	3,874	106
NYC	311,979	2,504
Oneida	4,970	109
Onondaga	10,804	103
Ontario	1,326	22
Orange	16,891	90
Orleans	630	7
Oswego	1,625	54
Otsego	632	14
Putnam	2,844	55
Rensselaer	1,746	26
Rockland	21,632	130
Saratoga	2,293	48
Schenectady	2,481	38
Schoharie	197	1
Schuyler	316	2
Seneca	309	14
St. Lawrence	850	28
Steuben	1,797	26
Suffolk	61,072	658
Sullivan	2,202	11
Tioga	1,149	17
Tompkins	1,118	13
Ulster	3,381	56
Warren	583	6
Washington	452	3
Wayne	1,148	21
Westchester	50,693	583
Wyoming	546	13
Yates	265	3

 

On November 29, 2020, 54 New Yorkers died due to COVID-19 in New York State, bringing the total to 26,747. A geographic breakdown is as follows, by county of residence:

Deaths by County of Residence
County	New Deaths
Albany	1
Bronx	6
Broome	2
Chemung	7
Columbia	1
Dutchess	1
Erie	10
Kings	4
Manhattan	2
Monroe	1
Nassau	1
Oneida	1
Onondaga	1
Orange	1
Rockland	1
Saratoga	1
St. Lawrence	1
Suffolk	4
Tioga	2
Ulster	1
Wayne	1
Westchester	1
Wyoming	2
Yates	1

 

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