A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2018 NY Slip Op 03688, Appellate Division, Second Department

This proceeding involved a dispute between Village of Garden City [Village],  and the Professional Firefighters Association of Nassau County, Local 1588 [PFA] concerning  Village's implementation of a staffing protocol that was formulated to ensure compliance with a prior arbitration award that was earlier confirmed by this court.* The arbitrator in the earlier arbitration had found that the Village violated the parties' collective bargaining agreement [CBA] by assigning the operation of first-line equipment to volunteer firefighters rather than to paid firefighters represented by PFA.  

PFA filed a grievance contending that the new protocol continued to improperly assign the operation of first-line equipment to volunteer firefighters and demanded arbitration. The Village objected to submitting this new grievance to arbitration and filed an Article 75 petition seeking a permanent stay of the arbitration. Supreme Court issued denied the Village's petition and granting PFA's motion to compel arbitration of the grievance. The Village appealed the Supreme Court's ruling.

The Appellate Division ruled that Supreme Court properly denied the Village's petition to permanently stay arbitration of the grievance and granted PFA's motion to compel the arbitration of the grievance noting that in the earlier proceeding it had ruled that  grievances challenging the operation of first-line equipment by volunteers were arbitrable.

Referring to the two-part test used by the courts to determine whether a dispute between a public sector employer and employee is arbitrable** the court explained that:

1. "Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance;

2. "If there is no prohibition against arbitrating, the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute;

3. "In examining the collective bargaining agreement, the court must merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement];

4. "If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

As the Village was unable to demonstrate that arbitration of PFA's instant grievance was prohibited by statutory or public policy or that PFA's instant grievance was not reasonably related to the general subject matter of the CBA, the court again ruled that the question of the scope of the substantive provisions of the CBA was a matter of contract interpretation and application reserved for the arbitrator.

* See Matter of Professional Firefighters Assn. of Nassau County, Local 1588, Intl. Assn. of Firefighters, AFL-CIO v Village of Garden City, 119 AD3d 803.

** See Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03688.htm

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Buckley v City Of New York, 56 N.Y.2d 300

[Decided with Lawrence v City of New York]

These cases essentially involved the question of whether the fellow-servant rule continues to apply in New York. 

In each case an employee of the City of New York, who was injured through the negligence of a coemployee, brought an action against the City. In Buckley v City of New York, a police officer was accidentally shot in the leg when a gun being loaded by a fellow officer discharged in the station house locker room. In Lawrence v City of New York, a fire fighter was seriously injured when a fellow fire fighter threw a smouldering couch from the second story window of a fire-damaged building and struck the plaintiff while he was standing in the yard.

In each case the plaintiff secured a jury verdict of liability against the city on a theory of vicarious liability and the city's motion to dismiss the complaint on the basis of the fellow-servant rule was denied. The Appellate Division affirmed the judgments in both instances and leave has been granted to appeal to this court. The Court of Appeals affirmed the Appellate Division's ruling.

The doctrine of  rule of respondeat superior holds that the employer will be liable to third parties for torts of an employee committed within the scope of his or her employment.

In contrast, the fellow-servant rule is triggered in the event an employee is injured by a fellow employee in the workplace. The injured worker will have no recourse against the employer in respondeat superiorand the rule provides that "where a servant is injured through the negligence or fault of a fellow servant, engaged in a common business and employment ... if the master is himself free from fault, the master is not responsible for the injury."

The Court of Appeals observed that "The over-all effect of the fellow-servant rule was drastically curtailed by the advent of workers' compensation legislation," concluding that "Today we are squarely presented with the question left open in Poniatowski — whether the fellow-servant rule is to survive in New York. The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation, and was dealt an almost fatal blow in this State in Poniatowski v City of New York, 14 N.Y.2d 76.

Today, said the court, in rejecting this rule entirely, we inter its remains," explaining "The fellow-servant rule serves no continuing valid purpose in New York, but instead merely works an unjustifiable hardship upon individuals injured in the workplace, and we must thus conclude that the fellow-servant rule is no longer to be followed in New York."

The Buckley decision is posted on the Internet at:

https://www.leagle.com/decision/198235656ny2d3001326

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Woolfolk v New York City Board/Dept. of Educ., 2018 NY Slip Op 03765, Appellate Division, First Department

Supreme Court denied the employee's petition to set aside the employer's annual performance rating of the employee as "ineffective" upon the court's determinating that any right to initiate a legal or equitable claim concerning the rating was waived by employee's "Stipulation of Settlement" of disciplinary charges filed against the employee.

The employee had been served with disciplinary charges pursuant to Education Law §3020-a. Prior to the adjudication of those charges, the employee and the appointing authority entered into a "Post-Charge Stipulation of Settlement" to discontinue the disciplinary action. Subsequently the employee filed an administrative appeal challenging the "ineffective" annual performance rating received by the employee. The administrative appeal was rejected by the appointing authority and employee initiated an Article 78 proceeding challenging the appointing authority's rejection of the appeal.

Sustaining the Supreme Court's dismissal of the employee's Article 78 petition, the Appellate Division, citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, explained that it is well settled that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing."

In this instance, said the court, "the clear and express terms of the stipulation of settlement" indicated that the employee had waived any right to file a claim in court relating to any matter arising from or relating to her employment prior to December 2015, including this challenge to the individual's year-end performance rating of "ineffective" for the prior school year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03765.htm

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Cannavo v Olatoye, 2018 NY Slip Op 03740, Appellate Division, First Department

The Cannavo decision by the Appellate Division is set out below, with comments concerning some of the more "troublesome" elements of the ruling set out in bold in blue.

Supreme Court denied Cannavo's application for reinstatement to his former position with the New York City Housing Authority (NYCHA), and dismissing the proceeding brought pursuant to CPLR Article 78, which ruling was unanimously affirmed, by the Appellate Division without costs. The Appellate Division's ruling states:

"The article 78 court correctly determined, upon consideration of all the facts, that respondents' denial of petitioner's application for reinstatement to his former position with NYCHA was not arbitrary and capricious or an abuse of discretion (see Matter of Roberts v Gavin, 96 AD3d 669, 671 [1st Dept 2012])."

The decision reports that Cannao sought reinstatement with NYCHA following his retirement from NYCHA. As reinstatement of a former employee to his or her former position is a matter subject to the exercise of the discretion of the appointing authority, and absent such denial of the request for a discriminatory reason or unlawful purpose, the appointing authority's denial of the retiree's request for reinstatement is otherwise lawful.

A retiree may be reemployed following his or her retirement subject to the limitations set out in §150 of the Civil Service Law. Further, §13-119 and 13-178 of the New York City Administrative Code addressed a retired member's eligibility to rejoin the relevant retirement system without any limitation based on "jurisdictional classification" of the position to which reemployment is sought.

The decision then continues:

"Despite petitioner's previous position as a "civil service" employee with the New York City Department of Housing Preservation and Development (HPD), when he was hired by NYCHA in 1996, it was in a non-competitive position that was not eligible for civil service status, as NYCHA's records reflect." 

The Civil Service of the State of New York, in contrast to the "military service" of the State of New York, consists of positions Exempt Class [CSL §41]; the Non-competitive Class [CSL §42]; the Labor Class [CSL §43] and the Competitive Class [CSL §44], which positions are in the "Classified Service" and positions the Unclassified Service, which positions are set out in CSL §35. 

No explanation or justification is provided with respect to the representation that Canno "was not eligible for civil service status" with NYCHA.

As to the status of HPD and NYCHA, the list of "New York City Agencies" listed on the Official Website of the City of New York includes, among other agencies:

●  Housing Authority, New York City (NYCHA)  and

●  Housing Preservation and Development, Department of (HPD)

As Yul Brynner exclaims in The King and I, "is a puzzlement!" as to why Canno "was not eligible for civil service status" with NYCHA because of the jurisdictional class of the position.

Upon a review of records kept by HPD, NYCHA, and the Department of Citywide Administrative Services, respondents determined that petitioner's civil service status had not been formally transferred from HPD to NYCHA, and, since only those who have civil service status are eligible for reinstatement following retirement, rationally concluded that petitioner was not eligible for reinstatement.

This conclusion is troublesome as it appears that Canno resigned from his position in the "Civil Service" with HPD in favor of a de novo appointment to a position in "Civil Service" in the Non-competitive Class with NYHCA. The decision is silent with respect to the basis for the determination that petitioner lacked "civil service status" with NYCHA.

Further, there is no bar to the reinstatement of a retiree to his or her former position should the appointing authority approve such a reinstatement regardless of the jurisdictional classification of the position involved. 

The reinstatement, reappointment, reemployment or new appointment of a person otherwise qualified receiving a New York State public retirement system benefit is permitted at the discretion of the appointing authority, subject to the provisions and limitations set out in CSL §150 with respect to the suspension  of the individual's  pension  and  annuity and limits on compensation during such public employment.

The opinion continues:

While petitioner claims that certain NYCHA documents — including a notification of appointment and performance reviews he received in 1996 — reflect that he maintained his competitive civil service status, the record shows that he subsequently had many conversations with Human Resources and took actions to obtain a formal transfer. Moreover, attached to the petition is a 1996 memo from Human Resources informing petitioner that he did not, in fact, possess this status. As the court found, this is not a rare or extraordinary case in which the doctrine of estoppel or laches should be applied against a government agency (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]).

With respect to the noting that Canno "took actions to obtain a formal transfer" as here relevant [see NYCRR 1.2(b)(1)], assuming, but not conceding, that such was, in fact, the case, a transfer from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of a different appointing authority requires the approval of both appointing authorities.

In contrast, as indicated by 4 NYCRR 1.2(b)(2) , the placement of an individual under the jurisdiction of the appointing authority to another position under the jurisdiction of the same appointing authority having the same title is a "reassignment" not a "transfer."

The bottom line: A individual who retired from a position in the Classified Service is not barred from being reinstated to his or her former position if available and otherwise permitted by the controlling provisions of the Civil Service Law regardless of his or her pre-retirement "appointment status" in such position, i.e., permanent, contingent permanent, temporary, provisional, military substitute, or term and regardless of the jurisdictional classification  or budgetary status of the position in question if otherwise available for appointment thereto. 

The decision concludes:

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2018

CLERK

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2018/2018_03740.htm

Considering the employee's personnel history in setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm