Arbitration award vacated and the matter remanded for a rehearing and a new determination before a different arbitrator

  

Matter of Ventillo v County of Rockland Sheriff's Dept.

2022 NY Slip Op 03521

Decided on June 1, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 1, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
SHERI S. ROMAN
LINDA CHRISTOPHER
DEBORAH A. DOWLING, JJ.

2018-14993
(Index No. 34561/18)

[*1]In the Matter of Ranolfo Ventillo, respondent,

v

County of Rockland Sheriff's Department, appellant.

Saretsky Katz & Dranoff, LLP, New York, NY (Robert B. Weissman of counsel), for appellant.

Law Office of Frank M. Graziadei, P.C., New York, NY (Peter B. Fallon of counsel), for respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 4, 2018, the County of Rockland Sheriff's Department appeals from an order of the Supreme Court, Rockland County (Paul I. Marx, J.), dated December 10, 2018. The order granted the petition to vacate the award and remitted the matter for a rehearing and a new determination before a different arbitrator.

ORDERED that the order is affirmed, with costs.

On April 26, 2016, the County of Rockland Sheriff's Department (hereinafter the RCSD) suspended the petitioner, Ranolfo Ventillo, from his employment as a correction officer without pay based upon conduct which was alleged in certain criminal charges that had been brought against him. Ventillo, through the Correction Officers Benevolent Association of Rockland County (hereinafter the Union), filed a grievance protesting the suspension and demanded a disciplinary arbitration pursuant to the Union's collective bargaining agreement with the County of Rockland. Ventillo was subsequently acquitted of the criminal charges on June 30, 2017, after a jury trial.

At the scheduled hearing date of January 24, 2018, Ventillo's counsel sought to be relieved due to a conflict of interest and requested that the hearing be adjourned. Ventillo did not appear at the January 24, 2018 hearing date due to an unspecific work emergency. The arbitrator granted counsel's request to be relieved but did not grant counsel's request for an adjournment, and allowed the RCSD to proceed with the hearing on that date and elicit testimonial evidence from two witnesses without the presence of Ventillo or counsel. The hearing was continued on four additional dates in the absence of Ventillo and counsel, despite Ventillo's repeated request for an adjournment to obtain new counsel. Thereafter, by arbitration award dated June 4, 2018 (hereinafter the arbitration award), the arbitrator, inter alia, sustained the disciplinary charges and found that just cause existed to terminate Ventillo's employment with the RCSD.

On July 27, 2018, Ventillo commenced this proceeding pursuant to CPLR article 75 to vacate the arbitration award. In an order dated December 10, 2018, the Supreme Court granted the petition and remitted the matter for a rehearing and a new determination before a different arbitrator. The RCSD appeals, and we affirm.

"'Judicial review of arbitration awards is extremely limited'" (Matter of City of Middletown v Weissinger, 188 AD3d 670, 671, quoting Kotlyar v Khlebopros, 176 AD3d 793, 795). "However, '[p]recisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded'" (Marracino v Alexander, 73 AD3d 22, 26, quoting Matter of Goldfinger v Lisker, 68 NY2d 225, 231). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iv) on the ground that a party's rights were prejudiced by the "failure to follow the procedure of [CPLR article 75], unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection." As part of the procedure set forth in CPLR 7506, the parties to an arbitration "are entitled to be heard, to present evidence and to cross-examine witnesses," and have "the right to be represented by an attorney" (id. § 7506[c], [d]). The right to be represented by an attorney "may not be waived" (id. § 7506[d]; see Marracino v Alexander, 73 AD3d at 26).

Here, the Supreme Court properly granted the petition to vacate the arbitration award. Proper procedure was not followed by the arbitrator, who denied Ventillo the right to be represented by an attorney by proceeding with the hearing on January 24, 2018, and thereafter continuing with the hearing over Ventillo's objection and without affording him time to obtain new counsel (see CPLR 7506[d]; 7511[b][1][iv]; Marracino v Alexander, 73 AD3d at 26; Matter of Mikel v Scharf, 85 AD2d 604, 604). This failure to observe statutory procedure was sufficiently prejudicial, under the circumstances of this matter, to require vacatur of the arbitration award (see Marracino v Alexander, 73 AD3d at 26; Sartiano v Becker, 119 AD2d 656, 656; Matter of Mikel v Scharf, 85 AD2d at 604).

The parties' remaining contentions either are without merit or need not be considered in light of our determination.

Accordingly, we affirm the order.

LASALLE, P.J., ROMAN, CHRISTOPHER and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

Issues considered in selected decisions promulgated by New York State courts during the month of May 2022.

Application for Performance of Duty Disability Retirement Benefits. Although Employee seeking performance of duty disability retirement benefits testified that he was being cooperative during the examination but that pain restricted his range of motion, the Comptroller credited the testimony of the orthopedic surgeon who examined Employee on behalf of the New York State and Local Employees' Retirement System, and the medical report and concluded that Employee had "deliberately frustrated the Retirement System's ability to confirm, and/or rebut, [his] assertions regarding his alleged disability." Click HERE to access the court's decision.

Applying the continuing wrong doctrine. The continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" and "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs." Click HERE to access the court's decision.

Determining if the issue petitioner's claims was arbitrable. As the language of the arbitration clause contained in the collective bargaining agreement (CBA) between Emplolyee's union and the Employer lacks the plain and sweeping language demonstrating an intent by the parties to delegate the question of arbitrability to an arbitrator (see e.g. Matter of Steyn v CRTV, LLC, 175 AD3d 1, the clause does not state that it encompasses "any and all disputes" between the parties and it does not explicitly delegate the arbitrability question to an arbitrator and the CBA does not evince a clear and unmistakable intent to arbitrate the Labor Law claims at issue here. The URL to the court's decision is https://www.nycourts.gov/reporter/3dseries/2022/2022_03313.htm.

Considering a motion to expunge a disciplinary letter from petitioner's personnel file. As the four-month statute of limitations on Article 78 proceedings began to run when the disciplinary letter was placed in the Employee's file on May 6, and this proceeding was not commenced until, at the earliest, the subsequent January 13, the Appellate Division said Supreme Court should not have considered the letter. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03209.htm

Holding a party in contempt for violating a prior confirmed arbitration award and order. Actions outside the scope of a confirmed arbitration award cannot be found to be a violation of a clear and unequivocal court mandate sufficient to support a finding of civil contempt. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03218.htm

Paying for expert legal services. Plaintiff serve as Defendant's expert in a separate legal matter pursuant to an engagement letter outlining Plaintiff's fees and the terms of the retainer. Defendant failed to pay certain invoices, prompting Plaintiff to commence this action for breach of contract and an account stated. The URL to access the decision is http://www.nycourts.gov/reporter/3dseries/2021/2021_03499.htm.

Police officer terminated for excessive absences after suffering a work related injury. Following a hearing pursuant to Town Law §55 and Civil Service Law §75, a police officer was found guilty of incompetence and terminated from his position under color of Civil Service Law §75 after being charged with one count of incompetence due to excessive absenteeism as a result of his being physically unable to perform his duties on scheduled work days as the result of a work-related injury. The URL to access the decision is: https://www.nycourts.gov/reporter/3dseries/2022/2022_02413.htm. [See, also, https://www.nycourts.gov/reporter/3dseries/2022/2022_02420.htm]. For a "contra view" with respect relying on Civil Service Law §71 in such situations, see https://publicpersonnellaw.blogspot.com/2016/11/termination-of-police-officer-on.html

Traveling to and from work is not within the scope of employment. As a general rule, traveling to and from work is not within the scope of employment and any injuries sustained during that period are not subject to a workers' compensation award. However, there are exceptions to this general rule, including, as is relevant in this action, "outside employees who, as a distinguishing feature of their employment, have no fixed work site and are required to travel between job locations" and employees engaged in a special errand, wherein, "at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel.'" Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_02474.htm

Union alleged the Employer unilateral implementing the new rules and procedures for the usage of sick leave violated Civil Service Law § 209-a(1)(d). The Appellate Division affirmed portions of a determination of the New York State Public Employment Relations Board, which, after a hearing, found that the Employer violated Civil Service Law §209-a(1)(d) by issuing certain provisions of a sick leave management program, and directed the Employer to rescind those provisions. The matter was remitted to the Supreme Court for the issuance of an order compelling compliance with this decision and judgment. The URL to access the Appellate Division's ruling is https://www.nycourts.gov/reporter/3dseries/2022/2022_03392.htm.

 

Challenging a central school district's decision to discontinue reimbursements for certain Medicare Part B premium surcharges

In various collective bargaining agreements [CBA] between the Chappaqua Central School District [District] and the Chappaqua Congress of Teachers [CCT], an association representing certain District employees, the District agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program [Part B] and, in keeping with the provisions set out in the several CBAs, the District reimbursed retirees the cost of Part B coverage. 

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, the so-called "income-related monthly adjustment amount" [IRMAA]. Prior to August 2018, the Districtreimbursed retirees for IRMAA surcharges in addition to the standard Medicare premium cost.

The CCT challenged the District's action. Supreme Court granted CCT's petition, annulled the District's determination, and directed the District to reinstate reimbursement for the Medicare Part B surcharges.  

In response to the District's appeal, the Appellate Division sustained the lower courts ruling. The text of its decision is set out below:

 

Matter of Bailenson v Board of Educ. of the Chappaqua Cent. Sch. Dist.

2021 NY Slip Op 03318

Decided on May 26, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 26, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ANGELA G. IANNACCI, JJ.

2019-08292
(Index No. 70427/18)

[*1]In the Matter of Myrna Bailenson, et al., respondents,

v

Board of Education of the Chappaqua Central School District, et al., appellants.

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY (Mark C. Rushfield of counsel), for appellants.

Robert T. Reilly, New York, NY (Oriana Vigliotti of counsel), for respondents.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Chappaqua Central School District dated August 16, 2018, which discontinued reimbursements for certain Medicare Part B premium surcharges, the appeal is from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated May 20, 2019. The judgment granted the petition, annulled the determination, and directed the respondents to reinstate reimbursement for the Medicare Part B surcharges.

ORDERED that the judgment is affirmed, with costs.

Pursuant to collective bargaining agreements (hereinafter CBAs) between the Chappaqua Central School District (hereinafter the district) and the Chappaqua Congress of Teachers (hereinafter the CCT), an association representing district employees, the district agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program (hereinafter Part B) and, in keeping with the CBAs, the district reimbursed retirees the cost of Part B coverage. Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, known as the income-related monthly adjustment amount (hereinafter IRMAA). Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to the standard premium cost.

On August 16, 2018, the district informed retirees that it would no longer reimburse them for IRMAA surcharges. In response, the petitioners commenced this CPLR article 78 proceeding against the Board of Education of the Chappaqua Central School District, the district, and Christine Ackerman, as superintendent of the district, seeking to annul the August 16, 2018 determination on the ground that it violated chapter 729 of the Laws of 1994 (as amended by L 2007, ch 22), known as the Retiree Health Insurance Moratorium Act (hereinafter the moratorium statute), and seeking reinstatement of the reimbursements.

The Supreme Court agreed that the district's discontinuation of reimbursements violated the moratorium statute, granted the petition, and directed the district to reinstate the reimbursement, including retroactive reimbursements. This appeal ensued.

The moratorium statute sets "'a minimum baseline or "floor" for retiree health benefits'" which is "'measured by the health insurance benefits received by active employees. . . . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'" (Matter of Altic v Board of Educ., 142 AD3d 1311, 1312, quoting Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d 1407, 1408). Thus, a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees" (Matter of Baker v Board of Educ., 29 AD3d 574, 575). The purpose of the moratorium statute is to protect the rights of retirees who "'are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'" (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, 1135, quoting Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2050; see Matter of Jones v Board of Educ. of Watertown City School Dist., 30 AD3d 967, 970).

Here, it is undisputed both that the CBAs between the district and the CCT did not address Part B or IRMAA reimbursements and that the district in fact provided such reimbursements, even if, as it claims, the reimbursements were made inconsistently. Thus, the reimbursements were "retiree health insurance benefits that were voluntarily conferredas a matter of school district policy" (Kolbe v Tibbetts, 22 NY3d 344, 358). Accordingly, the Supreme Court correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute (see Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d at 1408-1409; Matter of Baker v Board of Educ., 29 AD3d at 575; Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1136; see generally Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 149 AD3d 1236, 1238; Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1480-1481, affd 95 AD3d 1479).

Like the Supreme Court, we find unpersuasive the district's claim that IRMAA reimbursements were disbursed for a decade as the result of an administrative error without the district becoming aware of the error. However, even if proved, the district has pointed to no authority suggesting that this alleged error removes the matter from the scope of the moratorium statute. Similarly, the court correctly rejected as "circular reasoning" which was "entirely inconsistent with the legislative intent" of the moratorium statute the district's claim that the new policy would cause a corresponding diminution in active employees' benefits since, upon retirement, they, too, would not receive IRMAA reimbursements. The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees. To accept the district's argument would eviscerate that purpose (see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1135; Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2049-2050). Accordingly, the court correctly determined that discontinuation of IRMAA reimbursements violated the moratorium statute and properly granted the petition.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

2019-08292 DECISION & ORDER ON MOTION

N.B.

In the Matter of Myrna Bailenson, et al., respondents,

v Board of Education of the Chappaqua Central

School District, et al., appellants.

(Index No. 70427/18)

Motion by the petitioners to strike footnote 2 on page 5 of the appellants' reply brief on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated July 31, 2020, the motion was held in abeyance and referred to the panel of Justices [*2]hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted, and footnote 2 on page 5 of the appellants' reply brief is deemed stricken and has not been considered in the determination of the appeal.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court