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

Setting the compensation to be paid the Governor and Lieutenant Governor of the State of New York

In April, 2019, the New York State Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019. Plaintiff challenged the Legislature's action, alleging that "the concurrent resolution ran afoul of NY Constitution, Article XIII, §7." As relevant here, Supreme Court granted the Comptroller's [Defendant] motion to dismiss the complaint. Plaintiff appealed.

The Appellate Division reversed Supreme Court's granting the Defendant's motion for summary judgment and denied the motion. The full text of the Appellate Division's decision is set out below:

 

Robert Arrigo, Appellant,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date:March 25, 2022
Before:Garry, P.J., Lynch, Aarons, Colangelo and Ceresia, JJ.

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant.

Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.

Garry, P.J.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered January 8, 2021 in Albany County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

Pursuant to matching provisions in the NY Constitution, the annual salaries of the Governor and Lieutenant Governor are "fixed by joint resolution of the [S]enate and [A]ssembly" (NY Const, art IV, §§ 3, 6). In April 2019, the Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019 (hereinafter the concurrent resolution). The concurrent resolution also provided that those officials would receive two additional increases to their annual salaries on January 1, 2020 and January 1, 2021 but conditioned each increase "upon the timely legislative passage of the budget for the preceding year" (seeL 2018, ch 59, § 1, part HHH, § 2 [4]; see also Legislative Law § 5 [3]).

Plaintiff, a resident and taxpayer of this state, commenced this action pursuant to State Finance Law §§ 123-b and 123-e, alleging that the concurrent resolution ran afoul of NY Constitution, article XIII, § 7, which provides that "[e]ach of the state officers named in this constitution shall, during his or her continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he or she shall have been elected or appointed; nor shall he or she receive to his or her use any fees or perquisites of office or other compensation." Plaintiff sought an order (1) declaring that the concurrent resolution was "null and void" for having violated the NY Constitution, (2) permanently enjoining defendant from paying the Governor and Lieutenant Governor the rates set by the concurrent resolution, and (3) awarding him counsel fees and costs. Defendant's answer asserted, among other things, that plaintiff failed to join the Governor and Lieutenant Governor as necessary parties and requested that Supreme Court dismiss the complaint or declare that the concurrent resolution "ha[d] not been shown to be unconstitutional."

Defendant moved for summary judgment dismissing the complaint and for such a declaration or, in the alternative, joinder of necessary parties. Plaintiff cross-moved for summary judgment. Supreme Court granted defendant summary judgment dismissing the complaint, issued the declaration requested by defendant, and denied plaintiff's cross motion. Plaintiff appeals.

We first address the joinder issue. CPLR 1001 (a) provides that "[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." When such a person "has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned" (CPLR 1001 [b]). This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected (see Matter of Martin v Ronan, 47 NY2d 486, 490 [1979]; Mahinda v Board of Collective Bargaining, 91 AD3d 564, 565 [2012]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d 155, 160 [2002]). Parties may be added by leave of court at any stage of the action (see CPLR 1003), including, "in the first instance, on appeal" (Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 86 AD2d 100, 105 [1982], affd on opinion below 60 NY2d 882 [1983]).

The Governor and Lieutenant Governor have an interest in their own salaries (see e.g. Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d 826, 827-828 [1999], lv dismissed and denied 93 NY2d 993 [1999]; Matter of McGuinn v City of New York, 219 AD2d 489, 490 [1995], lv dismissed and denied 87 NY2d 966 [1996]; Matter of Cassidy v New York City Dept. of Correction, 95 AD2d 733, 734-735 [1983]; Matter of Serth v New York State Dept. of Transp., 79 AD2d 801, 802 [1980]).^[FN1]Although those salaries are subject to change, CPLR 1001 does not speak of, and is not limited to, vested rights or interests (see Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d 662, 664 [2003]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160). The interests of the Governor and Lieutenant Governor could be inequitably affected if we declare that the concurrent resolution is void and enjoin defendant from paying their salaries at the rates set in that resolution (see Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1104 [2008], lv denied 11 NY3d 704 [2008]; Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102, 1104 [2007]; Matter of Boston Culinary Group, Inc. v New York State Olympic Regional Dev. Auth., 18 AD3d 1103, 1104 [2005], lv denied5 NY3d 712 [2005]; Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d at 664). "[T]he possibility that a judgment rendered without the omitted party could have an adverse practical effect on that party is enough to indicate joinder" (Matter of Nemeth v K-Tooling, 163 AD3d 1143, 1144 [2018] [internal quotation marks and citations omitted]; see Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160).

Contrary to plaintiff's argument, the interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d at 828). We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant's argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant's request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b]; 1003; Matter of Alexy v Otte, 58 AD3d 967, 967-968 [2009]; see also State Finance Law § 123-b [2] [permitting a plaintiff in an action concerning a wrongful expenditure of state funds to "join as a party defendant the recipient of such a wrongful expenditure"]).

Plaintiff has expressly limited his argument for relief to seeking a declaration that the concurrent resolution is unconstitutional and that defendant prospectively stop paying the Governor and Lieutenant Governor at the higher salary rate. However, "the fundamental duty" of defendant's office is "to 'superintend the fiscal concerns of the state'" (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d 239, 246 [2014] [brackets and citation omitted], quoting State Finance Law § 8 [1]); as the state's chief fiscal officer, he has "legally mandated duties to prevent unauthorized payments and overpayments" of state monies (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d at 247; see NY Const, art V, § 1; State Finance Law § 8 [1], [2], [2-b], [3], [7]). Considering that defendant "has long been viewed as having authority to confirm that payments already made were proper," if it were to be held that defendant had been making payments that were unconstitutional, defendant would then be authorized to recoup any state funds illegally paid (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 88 AD3d 1187, 1190 [2011], affd 23 NY3d 239 [2014]); see Matter of Signature Health Ctr., LLC v Hevesi, 13 Misc 3d 1189, 1192 [Sup Ct, Albany County 2006]). Indeed, some of the statutorily enumerated forms of relief under State Finance Law § 123-e are "a declaration that a proposed disbursement . . . would be illegal" and "restitution to the state of those public funds disbursed" (State Finance Law § 123-e [1]). Therefore, despite plaintiff's attempt to limit the relief he seeks in this action, if plaintiff is successful, defendant may seek to recoup any state monies illegally paid under the concurrent resolution retroactively, back to January 1, 2019. Thus, former Governor Andrew M. Cuomo — who was authorized to receive a salary under the concurrent resolution from January 2019 until August 2021 — may also be adversely affected and should similarly be joined as a necessary party.

Following plaintiff's service of the initiatory papers upon the Governor, Lieutenant Governor and former Governor, they will have an opportunity to respond and raise any applicable defenses. Supreme Court will then be able to consider this action "with the benefit of participation by all necessary parties" (Matter of Romeo v New York State Dept. of Educ., 41 AD3d at 1105).

Lynch, Aarons, Colangelo and Ceresia, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as granted defendant's motion for summary judgment; said motion denied and the Governor, Lieutenant Governor and former Governor Andrew M. Cuomo are joined as defendants, plaintiff is ordered to serve the summons and complaint adding said parties within 20 days of the date of this Court's decision, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: After the date of oral argument, the Lieutenant Governor resigned from office. Our decision is not affected by this development, as he still retains an interest in his salary from his time in that office. Any further references to the Lieutenant Governor should be read to include the recent occupant of that office.

 

 

Seeking access to materials claimed to be protected by the Attorney-Client Privilege

The term "Attorney-client privilege" is typically applied to the work product of an attorney that may be claimed to be confidential legal communications between a client and the client's attorney's. The privilege is usually asserted by the client's attorney when confronted with a demand for the communication. Additionally, the "privilege" belongs to the client and may not be waived by the attorney absent the client's consent. 

In this appeal the Appellate Division held that the motion court, following an in camera review,* "providently exercised its discretion in directing various communications to be produced by the defendants [Defendants] and delivered to the complainant [Plaintiff]. The court concluded that the Defendants' internal correspondence concerning the item "at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged," citing Gottwald v Sebert, 172 AD3d 445.

Additionally, the court explained, emails between the Defendant in this action and an attorney representing a third party "are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendant."

Secondly, opined the Appellate Division, "correspondence between the public relations manager of [a former client of Defendants and the Defendants] was not in furtherance of either parties' legal positions but in response to a disagreement over a Tweet" and "cannot reasonably be characterized as confidential communications made for the purposes of legal advice."

Addressing Defendants' communications demanded by Plaintiff between Defendants and their public relations firm, the court said that such communications did not "reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy," and thus are not protected by the attorney-client privilege.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

Click HEREto access the Appellate Division's ruling.

 

Arbitration award challenged in a CPLR Article 75 proceeding confirmed

The Appellate Division unanimously reversed a Supreme Court's decision granting Plaintiff's petition challenging an arbitration award and remanding the matter for a new hearing before a different arbitrator. The court then reinstated initial arbitrator's determination and penalty imposed "on the law".

The Plaintiff in the instance action was the subject of a prior disciplinary action involving charges of violating his employer's attendance rules. These charges were resolved by a written stipulation and agreement. The stipulation provided that [1] the charges were sustained; [2] that the Plaintiff would accept a "30 day suspension";  [3] agreement constituted a final warning "on time and attendance violations" and [4] the authority of the arbitrator adjudicating "any time and leave violations occurring within eighteen (18) months of the [date of the] stipulation," would be "limited to review of the charged misconduct, which if sustained would result in dismissal."

Prior to the expiration of this 18 month period Plaintiff was charged with [1] failing to report to work for 12 days and [2] abandonment of his position, in violation of his employer's Time and Leave Rules, which require that employees obtain prior approval for all leaves of absence, "except for such emergencies as death in immediate family and other substantiated unforeseeable occurrences."*

At the hearing which followed the Plaintiff testified that he was absent to care for his daughter who is bipolar and had  attempted suicide on previous occasions.

However, the arbitrator found that the documents offered by the Plaintiff in justification of his absences consisted of [1] a note signed by a physician indicating  that the Plaintiff's daughter sought treatment at an urgent care on the dates of Plaintiff's absence; and [2] did not include a diagnosis or any specific supervision or treatment recommendations other than Plaintiff's daughter should "refrain from going to work and school for a certain number of days."

This, said the arbitrator, neither serve to substantiate the level of care Plaintiff's daughter required nor that she needed his constant presence.

The Appellate Division held that under these circumstances, "there was a plausible basis for the arbitrator's finding that Plaintiff's] excuse for his prolonged absence without prior approval was not sufficiently substantiated, despite the challenging circumstances presented by his daughter's mental health."

* Although Plaintiff "called in" to report he would be absent from work each day, he did not obtain prior approval for any of these absences.

Click HEREto access the text of Appellate Division's ruling.