A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake

Sheng v State of N.Y. Div. of Human Rights, 2012 NY Slip Op 02310, Appellate Division, Second Department

The New York State Division of Human Rights dismissed Juan Y. Sheng’s  administrative complaint alleging unlawful discrimination after deterimining that there was “no probable cause.” Subsequenlty Sheng asked  Supreme Court to vacate a stipulation discontinuing the proceeding before the Division with prejudice. Supreme Court denied Sheng’s petition.

The Appellate Division dismissed Sheng’s appeal, explaining that stipulations disposing of proceedings and actions "are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel." Further, said the court, A party seeking to set aside such a stipulation will be granted relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake,” citing McCoy v Feinman, 99 NY2d 295.

Concluding that Supreme Court properly determined that Sheng failed to demonstrate good cause to set aside the stipulation discontinuing the proceeding with prejudice, the Appellate Division commented that “The failure of [Sheng’s]  attorney to ascertain or understand the legal effect of a discontinuance with prejudice was not a basis upon which to vacate the sitpulation.”

Further, the court said that Sheng submitted no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform her counsel of the legal ramifications of a discontinuance with prejudice. In the words of the Appellate Division, “opposing counsel owed no duty to disclose her understanding of those legal ramifications” to Sheng or Sheng’s attorney.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02310.htm

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates
Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02367.htm

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

County of Rockland v Civil Serv. Empl. Assn., Inc., 2012 NY Slip Op 01815, Appellate Division, Second Department

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA), filed a grievance on behalf of one of its members in the collective bargaining unit and shortly thereafter filed a similar grievance on behalf of another of its members in the unit. Both grievances filed by CSEA alleged that Rockland County had violated certain provisions of the Collective Bargaining Agreement [CBA] between CSEA and the County when it assigned per diem employees to perform certain work instead of giving those assignments to regular full- and part-time employees in the collective bargaining unit.

Rockland denied the grievances and ultimately CSEA demanded that the grievances be submitted to binding arbitration.

Rockland County filed an Article 75 petition in Supreme Court seeking a court order permanently staying the arbitration. Supreme Court granted its petition and permanently stayed the arbitration of the grievances. The Appellate Division reversed the lower court’s order.

The Appellate Division said that in the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.

If the demand for arbitration meets this test, then the court must then determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that inasmuch as the grievances allege that Rockland County violated certain provisions of the CBA, and the CBA contains a procedure to arbitrate "any alleged violation, misrepresentation, or inequitable application of [the CBA]," the parties have agreed to arbitrate the grievances.

Further, noted the court, Rockland’s allegation that CSEA’s demand for arbitration was untimely is an issue to be resolved by the arbitrator and not the courts.

Thus, said the Appellate Division, Supreme Court erred in granting the County’s petition and permanently staying the arbitration. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01815.htm

Removal from public office

Removal from public office

Warren v Bielecki, 2012 NY Slip Op 01037, Appellate Division, Fourth Department

Although this action seeking to remove two persons from public office pursuant to Public Officers Law §36 was dismissed as moot as the individuals targeted for such removal no longer held public office, the Appellate Division commented that had it consider the matter on its merits if would have dismissed the petition seeking such removals.

The court noted that based on the findings of fact made by a referee it had appointed, there were insufficient grounds upon which to remove either individual from office pursuant to Public Officers Law §36.

Removal from public officer pursuant to Public Officers Law §36 requires evidence of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01037.htm

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Hughes v Kelly, 2012 NY Slip Op 02393, Appellate Division, First Department

A New York City police officer, Jeffrey Hughes, filed an application for accidental disability retirement benefits. He also filed an application for ordinary disability retirement benefits. Police Commissioner Raymond Kelly rejected denied both applications and Hughes filed a petition pursuant to CPLR Article 78 seeking to overturn the Commissioner’s determination.

Supreme Court dismissed Hughes’ petition. Unanimously affirming the lower court’s ruling, the Appellate Division held that there was a rational basis the Commissioner’s determination.

The record, said the court, showed that after reviewing the medical evidence submitted by Hughes and the findings from its physical examinations of Hughes, the Medical Board concluded that "there was no objective evidence of a disability." Citing Matter of Appleby v Herkommer, 165 AD2d 727, the Appellate Division noted that “ It is well established that the court may not substitute its judgment for that of the Medical Board.”

The decision indicates that the Medical Board found that the deficits in Hughes’ “range of motion” were attributable to "voluntary guarding" and there were no objective radiographic studies presented showing any abnormal findings. Further, said the court, Board considered evidence submitted by Hughes' personal physicians and provided a rational explanation for its medical judgment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02393.htm