A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award

A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award

2014 NY Slip Op 03627, Appellate Division, First Department

This appeal flows from an arbitration award issued in 2007 that imposed a penalty of six months' unpaid suspension and mandatory counseling on a tenured teacher [Teacher] based on the arbitrator’s finding that Teacher had engaged in inappropriate contact with female students.

Here the New York City Board of Education sought a judgment vacating the award or, in the alternative, modifying the award to impose a penalty terminating Teacher's employment with the New York City School District.

Teacher interposed a motion to dismiss the petition for lack of personal jurisdiction. Teacher’s motion was denied by Supreme Court, which denial was affirmed by the Appellate Division (see 65 AD3d 934).

The Board of Education did not further inquire as to the status of the matter until 2010 when it learned that the assigned Justice had retired. It then asked to have the matter restored to the calendar. A status conference was held in 2011, at which time the Board was directed to retrieve the court file and attempt to reach a settlement with Teacher. No settlement agreement was reached by the parties and ultimately the court issued a sua sponte* order dismissing the proceeding as abandoned in accordance with its earlier order.

The Board next filed a motion, designated as one to “renew and/or reargue,” contending that Supreme Court had "overlooked the entire procedural history of this matter and misapplied the applicable law regarding when a proceeding may be deemed abandoned."

The Board’s motion was dismissed by the Appellate Division as [1] “It is well settled that no appeal lies from an order issued sua sponte; [2] “This Court has repeatedly stated that the proper procedure to be followed to appeal from a sua sponte order is to apply to vacate the order and then appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues;” and [3] Alternatively, the aggrieved party may seek permission to appeal.

Here, the Appellate Division noted, nothing in the moving papers identifies the application as one seeking to vacate the Supreme Court's order, nor does it provide the requisite demonstration of the merit of the proceeding.

Significantly the Appellate Division’s decision states that the motion papers do not  indicate that “a disagreement over the penalty assessed by the arbitrator constitutes a basis for vacating the award on a ground specified by statute (see CPLR 7511[b]; [1]) or that there is any ground for modification of the award (see CPLR 7511[c]).”

The bottom line: Noting that the Board had not sought leave to appeal and, given the passage of seven years since the issuance of the arbitration award, the Appellate Division “declined to nostra sponte** grant such relief.”

* The term sua sponteis used to describe the action taken by a court on it’s own motion and not in response to a motion or argument by a party in the matter.

** The term nostra sponte is used to describe an action taken by a panel of judges acting on its own motion and not in response to a motion or argument by a party.
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An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator

An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator

New York City Tr. Auth. v Transport Workers Union of Greater N.Y., Local 100, 2014 NY Slip Op 03689, Appellate Division, Second Department

A bus operator [Driver] employed by the New York City Transit Authority for almost 20 years was required to undergo and pass biennial physical examinations which, among other things, required him to have "the ability to recognize the colors of traffic signals and devices showing standard red, green and amber."

An ophthalmic physician examined Driver and determined that Driver "had a history of color-blindness, that Driver identified the color red as black, and that Driver had a "strong red-green color deficit." The physician recommended that Driver undergo a "road test" before it was determined whether he met "the standard required for safe commercial drivers." 

TA decided that Driver should not undergo the road test because it was a non-medical examination that cannot test an individual’s ability to recognize the required colors. Instead it asked the physician to determine whether Driver met the relevant Vehicle and Traffic Law vision requirements.

Driver’s union, the Transport Workers Union of Greater New York, Local 100 (TWU), filed a grievance on behalf of Driver, arguing that the TA's failure to cooperate with the administration of the road test was in violation of the parties' collective bargaining agreement [CBA]. TA denied the grievance and TWU submitted the grievance to binding and final arbitration. The TA then filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration of the grievance. The Supreme Court denied its petition and TA appealed, contending, among other things, that the grievance was not arbitrable.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that in a public sector context, determining whether a grievance is arbitrable requires a court to first determine:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance; and

2. If there is no such prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.”

The court held that, in its view, no statute or public policy absolutely prohibited an arbitrator from deciding whether Driver should undergo a road test before it is determined whether he meets the relevant vision requirements for bus drivers. Further, said the Appellate Division, the parties' agreement to arbitrate this dispute is supported by the terms of the CBA.

In the opinion of the Appellate Division, the relevant arbitration provisions of the CBA were broad and there existed a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Accordingly, any TA alleged ambiguity in the CBA as to whether the physician could recommend that Driver undergo a road test "is . . . a matter of contract interpretation for the arbitrator to resolve.”
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An applicant for an accidental or line of duty disability retirement allowance has the burden of establishing that he or she is entitled to such a retirement allowance

An applicant for an accidental or line of duty disability retirement allowance has the burden of establishing that he or she is entitled to such a retirement allowance

The State Comptroller denied a police officer’s application for accidental disability retirement benefits on the ground that he was not permanently incapacitated from the performance of his duties. The Appellate Division sustained the Comptroller’s decision explaining that an applicant for accidental disability retirement benefits bares the burden of establishing that he or she was permanently incapacitated from performing his or her duties as a police officer and in the event there are conflicts in the medical evidence, the Comptroller may credit the opinion of one expert over another, and that determination will not be disturbed when supported by substantial evidence. [Appellate Division, Third Department, 2014 NY Slip Op 02998]

In another case challenging the Comptroller's disapproval of an application for accidental disability retirement benefits submitted by a court officer on the ground that the underlying incident did not constitute an accident within the meaning of the Retirement and Social Security Law, the Appellate Division sustained the Comptroller decision, explaining that substantial evidence supports the determination. In order to qualify for accidental disability retirement benefits, the court officer was obligated to show that his injuries resulted from an accident, i.e., an event that is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.  To constitute an accident, the event must arise from risks that are not inherent to court officer's regular employment duties. [Appellate Division, Third Department, 2014 NY Slip Op 03003, 2014]

In a third case the Appellate Division sustained the Comptroller’s rejection of a correction officer application for performance of duty disability retirement benefits based upon work-related injuries she suffered in 2010. The Hearing Officer found that the correction officer had not established that the injuries she suffered were the result of an act of an inmate. The court said that the correction officer bore the burden of demonstrating that the incident in which she sustained her injuries was "the natural or proximate result of any act of an inmate," explaining that “based upon [the correction officer’s] testimony and the incident report completed at the time of the incident, there is a rational basis for the conclusion that the incident was not caused by any direct interaction with an inmate.” [Appellate Division, Third Department, 2014 NY Slip Op 03004]

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The consequences of withdrawing from membership in a retirement system

The consequences of withdrawing from membership in a retirement system
2014 NY Slip Op 03907, Appellate Division, Third Department

An applicant [Applicant] for disability retirement benefits was employed as a highway laborer and suffered an injury in the course of his employment. Unable to return to duty, he was terminated from his employment. About a month later he submitted a withdrawal from membership application to the New York State and Local Retirement System,“apparently upon the advice of the Town's comptroller who informed him that such withdrawal would have no affect on his ability to receive retirement benefits.”

Applicant slubsequently applied for disability retirement benefits. The New York State Employees’ Retirement System , however, denied his application on the basis that he was not a member of the Retirement System on the filing date. After exhausting his administrative remedies, Applicant commenced a CPLR Article 78 proceeding challenging the System’s decision.

The Appellate Division affirmed the System’s determination, explaining that an applicant for such disability retirement benefits must be a member of the Retirement System at the time of his or her application is filed in order to be eligible to receive disability retirement benefits. As Applicant had withdrawn from the System prior to the date he applied for disability benefits, he entitled to, and received, only the funds he had contributed to the System.*

The court rejected Applicant’s argument that the Retirement System should be estopped from denying his application for a disability retirement allowance based upon his allegation that he was instructed by Town personnel that his withdrawal would not affect his right to receive disability benefits. The Appellate Division said that “it has been established that municipal employees are not agents of the Retirement System,” citing Bruni v Regan, 133 AD2d 921, leave to appeal denied 71 NY2d 806.

The Appellate Division further noted that “estoppel may not be invoked against the State generally,” and "erroneous advice by a government employee does not constitute the type of unusual circumstance contemplated by the exception" in advancing such an estoppel argument.

Confirming the Retirement System’s decision, the court said that the Comptroller is vested with the "exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped  ‘to create rights to retirement benefits to which there is no entitlement.'"

* An individual who withdraws his or her membership, in contrast to vesting his or her benefits or retiring from service if so eligible, in effect forfeits the employer’s contributions. The same it true with respect to participants in the Optional Retirement Program available to certain employees of the State University, the City University, the Community Colleges the Statutory Contract Colleges at Cornell and Alfred Universities and the State Department of Education.
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The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request

The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request

2014 NY Slip Op 03031, Appellate Division, First Department

An individual [Individual] submitted a FOIL request for certain information. Supreme Court dismissed his Article 78 petition and Individual appealed.

The Appellate Division sustained the lower court’s decision, explaining that the records sought by Individual had been destroyed in accordance with the custodian’s records retention schedule.*

Citing Public Officers Law §89[3][a], the Appellate Division said that "Nothing in [the Freedom of Information Law (FOIL) shall be construed to require any entity to prepare 'any record not possessed or maintained by such entity' except for certain categories of records not at issue here."

* 8 NYCRR N 188, State Government Archives and Records Management, sets out the Regulations of the Commissioner of Education addressing the retention and destruction of State records.
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