Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

New York State's Student Intern Program exposes next generation of leaders to careers in public service

The New York State Department of Civil Service announced more than 250 new student internship opportunities currently available for the upcoming fall semester throughout New York State government and reminded students to apply prior to the September 13, 2019 application deadline. Internships are available across a wide array of State agencies and include opportunities in human services, environmental conservation, criminal justice, health care, and engineering.

The Department of Civil Service has created a one-stop website – www.nysinternships.cs.ny.gov– that allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation.

A list of available internships for the fall 2019 Session is available by visiting:

  www.nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm.

“Under Governor Cuomo’s leadership, New York State is attracting and developing our future leaders in State government and providing them with valuable skills and hands-on experience that will assist them as they step out into the workplace,” said Lola W. Brabham, Acting Commissioner of the New York State Department of Civil Service. “Today and every day, let us thank our student interns for their valuable contributions to State government and their efforts in building a better and stronger New York for all.”

The Student Intern Program is part of Governor Cuomo’s New New York Leaders Initiative, which focuses on attracting new and highly-skilled individuals to State government through both internship and fellowship programs. Through this program, students are exposed to the work of governing, while gaining valuable hands-on experience serving the people and interacting with government leaders and policy-makers.

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Each intern works in a particular area within an Executive Branch agency or department.

Opportunities include both paid and unpaid positions. Academic credit may be given for internships depending on the policy of the intern’s educational institution.

Featured internships for the fall 2019 session include:

Classification & Compensation Intern (Department of Civil Service – Albany): As part of the Department’s Division of Classification and Compensation, interns will gain an exposure to human resource management, division operations, and how budget considerations affect agency operations. Intern duties will consist of a range of activities that include position classification and reclassification, title allocation and reallocation, preparation of Classification Standards, review and analysis of requests for salary differentials, and occupational studies.

Accounting & Investigative Intern (Gaming Commission – New York City): Student interns will work within the Office of the Gaming Inspector General and will assist staff with investigations of allegations of corruption, fraud, criminal activity or abuse in the Commission. Interns will be exposed to a number of different experiences, including attending public meetings, participating in interviews, and preparing data analysis and/or memoranda.

Social Work Intern (Office of Children and Family Services - Rensselaer): Working within the Bureau of Behavioral Health Science, the student intern will learn how to process applications for Medicaid waiver services, and receive supervision to develop a short-term wellness program for staff. In addition, the intern will learn about the process of assessing and treating youth with mental health diagnoses.

Program Services Intern (Department of Corrections and Community Supervision – Gowanda): Student interns will assist staff in completing initial assessments, risk assessments, and participate in the development of treatment plans for inmate clients. In addition, interns will become familiarized with the Criminal Justice System, from courts, to incarceration and release to the community. They will also develop clinical skills and professionalism, while maintaining ethical standards in the field.

N.B. Students Must Apply by September 13, 2019

If a party objects to arbitrating a provision in a Taylor Law collective bargaining agreement courts will require a showing that it is lawful to arbitrate the dispute and that the parties agreed to arbitrate such a dispute

About three months after collective bargaining agreement [CBA] between the School District[District] and the Employee Organization [Local 811] had expired the parties entered into a memorandum of agreement that extended the CBA, with certain modifications, through 2020. These modification included changes with respect to  employee prescription drug benefits. Local 811 subsequently filed a grievance with the District challenging the change to the prescription drug coverage as applied to retirees.

The District denied the grievance, finding that [1] it was untimely; [2] Local 811 did not represent retirees;*and [3] there was nothing in the CBA prohibiting this change. When, ultimately, Local 811 demanded that the grievance be submitted to arbitration, the District initiated a CPLR Article 75 action seeking a court order to permanently stay arbitration.

Supreme Court found that the matter was arbitrable, dismissed the District's petition and the District appealed Supreme Court's ruling to the Appellate Division. The Appellate Division sustained the Supreme Court's ruling.

Explaining that the court's role in reviewing applications to stay arbitration is a limited one, the Appellate Division said that central inquiry is whether the dispute is arbitrable, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273. The Appellate Division then opined that to show that a CBA dispute is arbitrable requires proof that [a] it is lawful to arbitrate the dispute and [b] the parties have agreed to arbitrate such a dispute. In this action, however, the court said that the only question to resolve was [b] -- whether the parties agreed to arbitrate the dispute at issue.

To determine whether parties so agreed requires the court to examine the [CBA] to ascertain whether CBA contains a "broad arbitration clause," and if it does the court will find an "agreement" to arbitrate if "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." In contrast, specific contentions related to the scope of the CBA or interpretation of its substantive provisions are to be determined by an arbitrator.

In this instance the court found that the CBA's grievance procedure was intended to "establish a more harmonious and cooperative relationship between the non-instructional staff and [the District]" which, in this context said the Appellate Division, mandates that the CBA's provisions to be "liberally construed for the accomplishment of this purpose."

Further, the CBA broadly defines a grievance as "any claimed violation, misinterpretation, or inequitable application of [the CBA] or of any laws, rules, procedures, regulations, administrative order or work rules of the [individual designated by management to review and resolve grievances], or those matters affecting employees' health or safety, physical facilities, materials or equipment furnished to the employees or supervision of employees, or any other matter(s), in which the employee feels he [or she] has been dealt with unfairly." The CBA's grievance procedure provides, as the final step in the processing of a grievance, arbitration of the dispute.

Considering "the breadth of this language, lack of any exception for grievances concerning retirement benefits, and the CBA's provisions expressly addressing [prescription drug] coverage for retirees ..." the Appellate Division concluded that there was a reasonable relationship between the dispute and the subject matter of the CBA such that the dispute was arbitrable.

Although the District sought to read the terms "staff" and "employee" to narrow the ambit of the arbitration clause and specifically to exempt retirees from having the right to bring a grievance, the Appellate Division held that such a specific contention is not relevant to the threshold analysis of arbitrability but, instead, concerns the scope and substance of the CBA. Accordingly, the court ruled that the issue should be "determined by an arbitrator" rather than the court.

* Typically retirees are not in the collective bargaining negotiating unit but may be entitled to certain benefits set out in a collective bargaining agreement where specifically so provided.

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05619.htm