Settlement agreements

Settlement agreements

George W. & Dacie Clements Agric. Research Institute, Inc. v Green, 2015 NY Slip Op 06399, Appellate Division, Third Department

In its review of a Supreme Court ruling in a real property action in which one of the parties sought summary judgment to enforce a “settlement agreement,” the Appellate Division set out a number of guidelines that could lead to effecting a binding settlement agreement. 

These guidelines may prove helpful in the context of a “settlement agreement” resolving an employee disciplinary action.

1. An out-of-court settlement agreement "is not binding upon a party unless it is in a writing subscribed by [that party] or [that party's] attorney;"

2. Writings between parties to an action or proceeding that discuss the possibility of settlement will be considered to constitute a binding agreement if "the settlement agreement was adequately described in [such] writings, namely, the agreement was clear, the product of mutual accord and contained all material terms;" and

3. Settlement-related writings may be deemed to have contained sufficiently detailed terms to give rise to a binding agreement when, for example, these writings explicitly incorporate the terms of other documents prepared in anticipation of settlement.

In contrast, said the court, settlement-related writings will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms or where the terms of the settlement agreed upon by the employee organization on behalf of an employee and the appointing authority’s representative is subject to the approval of the appointing authority.

In Alfred v Safir, 283 AD2d 280, the disciplinary penalty to be imposed agreed upon by the employee and employer’s representative was made part of the record by the disciplinary hearing officer.

New York City Police Commissioner Howard Safir suspended Gary Alfred for 30 days without pay and placed him on disciplinary probation for one year following the "settlement of disciplinary charges" filed against Alfred. Alfred objected, contending that he, the department’s representative at the disciplinary hearing and the disciplinary hearing officer had all agreed to the imposition of a different disciplinary penalty.

The Appellate Division unanimously affirmed Safir’s decision, commenting that “[t]he various determinations and penalties agreed to by [Alfred] and [the department’s] advocate and/or hearing officer were not binding” on Safir, the appointing authority, citing Silverman v McGuire, 51 NY2d 228.

This decision suggests that where the appointing authority makes the final disciplinary determination, it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to impose the penalty set out in the settlement proposal.

Another issue that may arise as the result of efforts by the employer and the employee organization to settle a disciplinary action: the employee organization later refuses to sign the disciplinary settlement agreement. Would the union's refusal to sign the agreement constitute a failure to bargain in good faith? PERB considered this question in Town of Henrietta and CWA, 23 PERB 3004. 

The employer filed a complaint with PERB alleging the union violated its duty to negotiate in good faith when it refused to sign the disciplinary settlement agreement that the employer contended was required by §204.3 of the Civil Service Law [the Taylor Law].

PERB found an oral agreement had been reached. However, the only issue for it to decide, said PERB, was “whether a Taylor Law duty exists to execute the disciplinary settlement agreement reached.”

PERB ruled that “the duty to execute a written agreement created by §204.3 is most appropriately construed as applying to collectively negotiated agreements and not to settlement agreements reached pursuant to the grievance procedure contained in such a collective bargaining agreement.”

As to the contents of a settlement agreement, the agreement might set out provisions that could affect the employer's ability to file disciplinary charges against the employee in the future. 

For example, in Matter of the Board of Education of the Unadilla Valley Central School District, 97 AD3d 1078, the Appellate Division held that a disciplinary settlement agreement that provided that the appointing authority waived its right to bring certain charges against an individual barred it from subsequently bring charges based on the same event[s] or omission[s] while in Shuler v State of New York, 48 AD3d 384, the court sustained a provision in a disciplinary settlement agreement that preserved certain allegations of employee misconduct for subsequent action.

The Research Institute decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06399.htm

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Decisions of the Commissioner, Decision #16798

One of the objections raised by the School District in this appeal submitted by Stan J. Ercolano to the Commissioner of Education challenging the election of certain members of the School Board to the Board was that the petition was served on one of the named respondents [Pierce] by mail rather than by personal service. 

Addressing this particular objection included among a number of procedural challenges advance by School Board in its efforts to have Ercolano’s appeal dismissed, the Commissioner noted that §275.8(d) of the Commissioner’s regulations provides, in pertinent part. That “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent.” (emphasis in the Decision).

However, said the Commissioner, although §275.8(a) of the Commissioner’s regulations generally requires that the petition be personally served upon each named respondent,  §275.8(a) provides, in pertinent part that, “if a named respondent cannot be found upon diligent search, ... [service may be made] as otherwise directed by the commissioner.” 

The decision indicates that Ercolano had sent a fax to Education Department’s Office of Counsel requesting permission to effect alternate service by mail upon Pierce after he had “unsuccessfully attempting to effect personal service” upon Pierce at various different times and on different days.  The Office of Counsel sent Ercolano a letter granting him permission to serve Pierce by regular and certified mail, return receipt requested.  Ercolano then effected service, as approved, that same day.

 

The Commissioner said that it appears that Pierce “chose not to pick up the copy of the pleadings sent to her by certified mail” and found that service upon Pierce “was proper and made in compliance with the alternative service petitioner was authorized to use pursuant to §275.8(a) of the Commissioner’s regulations.”

The School District also argue that Ercolano “should have continued to attempt personal service” on Pierce even after the pleadings had been mailed to her by Ercolano as he was directed to do in Office of Councel’s approval letter.  However, affidavits of service submitted by Ercolano stated that an additional attempt to personally serve Pierce was made on the evening of June 16, 2011, but was unsuccessful.

The Commissioner ruled that in this instance “service was proper and [declined] to dismiss the appeal for failure to properly serve Pierce … and join her as a necessary party. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16798

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

2015 NY Slip Op 06331, Appellate Division, Second Department

The plaintiff [Probationer] commenced an action against the School District and certain named individuals [district defendants] and against the school district’s Teachers Association and New York State United Teachers [union defendants] .after her employment as a probationary teacher was terminated. Probationer’s amended complaint asserted causes of action to recover damages for the district defendant' alleged fraudulent inducement and breach of contract and a cause of action to recover damages for the union defendants' alleged breach of the duty of fair representation.

The Appellate Division ruled that Supreme Court properly granted the district defendants' cross motion to dismiss the amended complaint insofar as asserted against them. The court explained that a teacher's employment may be terminated during his or her probationary period for any reason, or no reason at all, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.

Here, said the court, the amended complaint failed to allege that Probationer’s employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription. As Probationer was an at-will employee, whose employment could be terminated at any time during the probationary period, the Appellate Division said that “there can be no action alleging breach of contract, citing Havilland v Yonkers Public Schools, 21 AD3d 527.

In addition, the court commented that the amended complaint failed to establish that the Probationer reasonably relied upon the district defendants' alleged misrepresentations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Accordingly, the Appellate Division concluded that the amended complaint failed to state a cause of action against the district defendants.

Turning Supreme Court’s dismissal of the amended complaint insofar as asserted against the union defendants, the Appellate Division said that “Because the union defendants were unincorporated associations, and because the amended complaint failed to allege that the conduct complained of on the part of the union defendants was authorized or ratified by every one of their respective members, the amended complaint failed to state a cause of action against the union defendants.”

In Martin v Curran, 303 NY 276, the Court of Appeals held that a voluntary unincorporated association "has no existence independent of its members" and that "for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven" it vacated the lower courts ruling. 

Although certain exceptions have been carved out from this general rule, the court said that one commentator has observed that, “although a claim of breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal," citing Rubenstein, Union Immunity From Suit in New York, 2 NYU Journal of Law & Business 641.

An abstract of the Rubenstein article is posted on the Internet at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=919143

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06331.htm

Justia ranks the popularity of 6,208 Blawgs in 74 subcategories

Justia ranks the popularity of 6,208 Blawgs in 74 subcategories

Source: http://blawgsearch.justia.com/topblawgs

Listed below are “the top 25 Blawgs” of the 6208 Law Blogs  reported by Justia for the week ending July 31, 2015. Blawgs are ranked based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. Click on the highlighted text in color to access the Blawg. 

TalkLeft: The Politics of Crime [Feed]

Provides liberal coverage of crime-related political and injustice news.

Last Updated: July 31, 2015 - Rank this Week: 2

http://www.talkleft.com/

Mortgage Fraud Blog [Feed]

Covers mortgage fraud information, fraud schemes and indictments. By Rachel Dollar.

Last Updated: July 31, 2015 - Rank this Week: 3

http://mortgagefraudblog.com/

Current Awareness Weblog [Feed]

Covers England and Walescase law, legislation, and legal news. From the Inner Temple Library.

Last Updated: July 31, 2015 - Rank this Week: 4

http://www.innertemplelibrary.com/

DealBook [Feed]

Covers mergers and acquisitions, investment banking, IPOs, private equity, hedge funds, venture capital and law. From The New York Times.

Last Updated: July 31, 2015 - Rank this Week: 5

http://dealbook.nytimes.com/

Sex Offender Issues [Feed]

Covers sex offender laws and cases.

Last Updated: July 5, 2015 - Rank this Week: 6

http://sexoffenderissues.blogspot.com/

Above the Law [Feed]

A legal tabloid that provides news and gossip about the profession's colorful personalities and powerful institutions, as well as original commentary on breaking legal developments.

Last Updated: July 31, 2015 - Rank this Week: 7

http://abovethelaw.com/

Real Estate Law Blog [Feed]

Includes news, cases and commentary on real estate and property law in New Yorkand nationwide. By Newman FerraraLLP.

Last Updated: July 31, 2015 - Rank this Week: 8

http://www.nyrealestatelawblog.com/

The Volokh Conspiracy [Feed]

By Eugene Volokh, Dale Carpenter, David Kopel, David Bernstein, David Post, Erik Jaffe, Ilya Somin, Jim Lindgren, Jonathan Adler, Kevan Choset, Orin Kerr, Randy Barnett, Russell Korobkin, Sasha Volokh, Stuart Benjamin, Todd Zywicki & Tyler Cowen.

Last Updated: July 31, 2015 - Rank this Week: 9

http://www.volokh.com/

SCOTUSblog[Feed]

Covers the Supreme Court of the United States. By Bloomberg Law.

Last Updated: July 30, 2015 - Rank this Week: 10

http://www.scotusblog.com/

JURIST - Paper Chase [Feed]

Covers legal news. From the University of Pittsburgh School of Law.

Last Updated: July 31, 2015 - Rank this Week: 11

http://www.jurist.org/paperchase/

Threat Level [Feed]

Covers privacy, crime and security online. From Wired News.

Last Updated: July 31, 2015 - Rank this Week: 12

http://www.wired.com/threatlevel

Discourse.net[Feed]

By University of Miamilaw professor Michael Froomkin. Covers civil liberties, the Internet, Guantanamo, Iraqattrocities, politics and more.

Last Updated: July 29, 2015 - Rank this Week: 13

http://www.discourse.net/

Real Lawyers Have Blogs [Feed]

Blogging resources, ideas and news for law firm bloggers. By Kevin O'Keefe.

Last Updated: July 31, 2015 - Rank this Week: 14

http://kevin.lexblog.com/

DNT - O Direito e as novas tecnologias [Feed]

Covers Brazilian IT law. In Portuguese. By Alexandre Atheniense.

Last Updated: January 25, 2015 - Rank this Week: 15

http://www.dnt.adv.br

State Law Library of Montana [Feed]

Features notices of new Opinions and Orders from the Montana Supreme Court, library announcements, research tips, and Montanalegal news.

Last Updated: July 30, 2015 - Rank this Week: 16

http://mtlawlibrary.wordpress.com

beSpacific[Feed]

Features law, marketing, Internet legal resources and technology news. By Sabrina I. Pacifici.

Last Updated: July 31, 2015 - Rank this Week: 17

http://www.bespacific.com/

The Am Law Daily [Feed]

Covers legal business news, analysis and intelligence. From The American Lawyer.

Last Updated: May 4, 2012 - Rank this Week: 18

http://amlawdaily.typepad.com/amlawdaily/

New York Public Personnel Law [Feed]

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq.

Last Updated: July 31, 2015 - Rank this Week: 19

http://publicpersonnellaw.blogspot.com/

Legal Scholarship Blog [Feed]

Features law-related calls for papers, conferences and workshops. From the Ohio State Moritz College of Law, University of Georgia School of Law, University of Pittsburgh School of Law and University of Washington School of Law.

Last Updated: July 19, 2015 - Rank this Week: 20

http://legalscholarshipblog.com

Federal Criminal Defense Blog [Feed]

Covers federal criminal law topics such as identity theft, capital punishment, drug enforcement, environmental crimes, immigration, and military law. By Tom Withers.

Last Updated: July 2, 2014 - Rank this Week: 21

http://www.federalcriminaldefenseblog.com/

Sex Offender Research by A Voice of Reason [Feed]

Covers research, studies, and court cases related to sex offender issues.

Last Updated: July 30, 2015 - Rank this Week: 22

http://sexoffenderresearch.blogspot.com/

Overlawyered[Feed]

Chronicles the high cost of our legal system.

Last Updated: July 31, 2015 - Rank this Week: 23

http://overlawyered.com/

Marler Blog [Feed]

Covers food poisoning law. By Bill Marler.

Last Updated: July 31, 2015 - Rank this Week: 24

http://www.marlerblog.com/

The FRAUDfiles Blog [Feed]

Covers fraud and forensic accounting, including tax fraud and the Sarbanes-Oxley Act. By Tracy Coenen.

Last Updated: July 22, 2015 - Rank this Week: 25

http://www.sequenceinc.com/fraudfiles

 

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 1, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 1, 2015

[Click on text highlighted in colorto access the full report]

Next in line for Michel-Lama Apartments were skipped over
Applicants who were next in line for coveted Mitchell-Lama apartments were skipped over for people farther down the waiting lists because of lax oversight and poor controls, an audit by New York State Comptroller Thomas P. DiNapoli determined. The audit released uncovered other lapses, including managing agents for Mitchell-Lama buildings who let residents have apartments without the required approval from the New York City Department of Housing Preservation and Development as well as co-op owners renting out their apartments on Airbnb. http://www.osc.state.ny.us/audits/allaudits/093015/14n3.pdf

Vendor boosted fuel costs during Superstorm Sandy recovery
In the emergency response to Superstorm Sandy, the state Division of Military and Naval Affairs used a catering company which tacked on $20,000 in excessive costs, according to a report released by State Comptroller Thomas P. DiNapoli. http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150729.pdf

New Jersey woman guilty of the theft of more $162,000 from the New York State Employees’ Retirement System
New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Linda Miller, 57, of Englewood, New Jersey, over the theft of more than $162,000 in pension benefits from the New York State and Local Employees Retirement System. The defendant, Linda Miller, continued to cash her mother Josephine Miller’s retirement benefits until 2012, despite her mother’s death in 2006. Linda Miller pleaded guilty to 3rd degree Grand Larceny, a class D felony, in Albany County Court before the Honorable Thomas A. Breslin

. http://www.osc.state.ny.us/press/releases/july15/072915b.htm?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=72915brelease

State Contract and payment actions during the month of June 2015

State Comptroller Thomas P. DiNapoli announced his office approved 1,887 contracts valued at $12.3 billion and approved nearly 1.3 million payments worth approximately $11.8 billion in June. His office also rejected 170 contracts and related transactions valued at $356 million and more than 2,000 payments valued at more than $7.3 million due to fraud, waste or other improprieties. http://www.osc.state.ny.us/press/releases/july15/072815.htm?utm_source=weeklynews220150802&utm_medium=email&utm_campaign=072815arelease

DiNapoli released the audits of the following jurisdictions:

Village of Fultonville

http://www.osc.state.ny.us/localgov/audits/villages/2015/fultonville.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease

Town of Livonia

http://www.osc.state.ny.us/localgov/audits/towns/2015/livoniajc.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease

Seymour Public Library District http://www.osc.state.ny.us/localgov/audits/libraries/2015/seymour.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease