Supreme Court denies defendant's motion seeking to disqualify plaintiff's attorney from representing the plaintiff

Defendant, individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, moved to disqualify Plaintiff's attorneys from further representation of Plaintiff in the underlying action on the ground that "they were interested witnesses whose testimony would be necessary and relevant to the action."

Supreme Court denied Defendant's motion, whereupon Defendant appealed Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

In the words of the Appellate Division: "We conclude that [Defendant] failed to meet his "burden of making 'a clear showing that disqualification is warranted' ", citing  Lake v Kaleida Health, 60 AD3d 1469 and S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437" and "Supreme Court thus did not abuse its discretion in denying the motion (see generally HoganWillig, PLLC v Swormville Fire Co., Inc., 210 AD3d 1369)."

Click HERE to access the decision of the Appellate Division posted on the Internet.

Challenging an arbitration award pursuant to Article 75 of New York State's Civil Practice Law and Rules [CPLR]

In this Civil Practice Law and Rules [CPLR] Article 75 proceeding the Buffalo Teachers' Federation [Petitioner] appealed a Supreme Court's order and judgment denying the Federation's CPLR Article 75  petition seeking to vacate an arbitration award. 

The Appellate Division's decision affirming the Supreme Court's ruling is set out below:

Matter of Buffalo Teachers' Fedn. (Board of Educ. of the Buffalo City Sch. Dist.)

2024 NY Slip Op 04868

Decided on October 4, 2024

Appellate Division, Fourth 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 October 4, 2024 

SUPREME COURT OF THE STATE OF NEW YORK 

Appellate Division, Fourth Judicial Department

PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND DELCONTE, JJ.

590 CA 23-01595

IN THE MATTER OF ARBITRATION BETWEEN BUFFALO TEACHERS' FEDERATION, PETITIONER-APPELLANT, AND BOARD OF EDUCATION OF THE BUFFALO CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT.

ROBERT T. REILLY, GENERAL COUNSEL, NEW YORK STATE UNITED TEACHERS, LATHAM (JOSE L. MANJARREZ OF COUNSEL), FOR PETITIONER-APPELLANT.

CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Gerald J. Greenan, III, J.), entered August 10, 2023, in a proceeding pursuant to CPLR article 75. The order and judgment denied the petition seeking to vacate an arbitration award and confirmed the award.

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: In this CPLR article 75 proceeding, petitioner appeals from an order and judgment that denied petitioner's petition seeking to vacate an arbitration award and confirmed the award. We affirm.

"It is well settled that judicial review of arbitration awards is extremely limited" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]; see Matter of Syracuse Firefighters Assn., Local 280, IAFF, AFL-CIO, CLC [City of Syracuse], 213 AD3d 1249, 1249 [4th Dept 2023]). As relevant here, "CPLR 7511 (b) (1) (iii) permits vacatur of an award where . . . the arbitrator exceeds [their] power" (Matter of Gerber v Goldberg Segalla LLP, 199 AD3d 1354, 1355 [4th Dept 2021]). "An arbitrator exceeds [their] power . . . where [their] award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Barone v Haskins, 193 AD3d 1388, 1390 [4th Dept 2021], lv denied 37 NY3d 919 [2022], appeal dismissed 37 NY3d 1032 [2021]; see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]), such as "a limitation on [the arbitrator's] power as set forth in [a collective bargaining agreement]" (Matter of Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO [City of Lackawanna], 156 AD3d 1406, 1407 [4th Dept 2017]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact' " (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 91 [2010], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 83 [2003]). As the Court of Appeals has explained, "[c]ourts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). "The party seeking to vacate an arbitration award thus bears a heavy burden to establish that the arbitrator exceeded their power" (Matter of Buffalo Teachers' Fedn. [Board of Educ. of Buffalo City Sch. Dist.], 227 AD3d 1435, 1436 [4th Dept 2024]; see Matter of Asset Protection & Sec. Servs., LP v Service Empls. Intl. Union, Local 200 United, 19 NY3d 1009, 1011 [2012]).

Here, contrary to petitioner's assertion, the arbitrator merely interpreted and applied the limitation contained within the relevant collective bargaining agreement (CBA) prohibiting arbitration of the grievance filed by petitioner, as he had the authority to do (see Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408). We are powerless to set aside that interpretation even if we disagree with it (see id.). In any event, we conclude that the plain language of the CBA supports the arbitrator's interpretation.

Entered: October 4, 2024

Ann Dillon Flynn

Clerk of the Court

New York State's Freedom of Information Law presumably opens for public inspection and copying all government records unless a record falls within one of the enumerated statutory exemptions set by law

In a proceeding pursuant to CPLR Article 78 initiated by the Petitioner to compel disclosure of certain documents pursuant to the Freedom of Information Law [FOIL], Public Officers Law Article 6, and for an award of attorneys' fees and litigation costs, the Suffolk County Police Department [Department] appealed a Supreme Court order requiring the Department to provide Petitioner with certain law enforcement disciplinary records* and 911-call records, subject to any authorized redactions or exemptions. The Appellate Division affirmed the Supreme Court's ruling, with costs.

The Department had denied or granted with redactions, in whole or in part, Petitioner's FOIL requests. The Department's denials and redactions were claimed, for the most part, to involve allegations of police officer misconduct that were classified as "unsubstantiated," "unfounded," or "exonerated."

The Department also denied or redacted records concerning complaints of police officer misconduct under color of Public Officers Law §87(2)(b), which the Department contended would "constitute unwarranted invasions of personal privacy".** The Department's rejections of Petitioner's FOIL requests were, for the most part, sustained by the Department on administrative appeal.

Citing Matter of Lane v County of Nassau, 221 AD3d 1008 among other decisions, the Appellate Division opined "'FOIL proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" and "FOIL ... imposes a broad duty on government agencies to make their records available to the public." Thus "[a]ll government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)" [see Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929 and Matter of Lepper v Village of Babylon, 190 AD3d 738].

With respect to the application of Public Officers Law §87(2)(b) and (f), the Appellate Division said these exemptions provide, respectively, an exemption from disclosure for records or portions of records that, if disclosed, would [1] constitute an unwarranted invasion of personal privacy or [2] could endanger the life or safety of any person. Accordingly, said the court, "... consistent with the policy of broad public access, the exemptions are to be narrowly construed, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption".

With respect to the withheld records of "unsubstantiated, unfounded, or exonerated allegations of misconduct", such records "were not categorically exempt from disclosure" as "[T]here is no categorical exemption from disclosure for unsubstantiated allegations or complaints of police misconduct." Further, opined the Appellate Division, "Upon repealing Civil Rights Law § 50-a, the Legislature amended the Public Officers Law to specifically contemplate the disclosure of '[l]aw enforcement disciplinary records,' which it defines to include 'complaints, allegations, and charges against an employee'". Thus "disclosure of the withheld records of unsubstantiated, unfounded, or exonerated allegations of misconduct was required unless those records "'[fell] squarely within the ambit of one of [the] statutory exemptions [under Public Officers Law §87(2)]'". and the party seeking exemption "must present specific, persuasive evidence that the material falls within the exemption" and "[c]onclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed".

As Department failed to demonstrate that the withheld records of unsubstantiated, unfounded, or exonerated allegations of misconduct fell squarely within the personal privacy exemption or the life and safety exemption the Appellate Division concluded that "Supreme Court properly directed the Department] to disclose the subject records of unsubstantiated, unfounded, or exonerated allegations of misconduct, subject to any authorized redactions or exemptions."

Addressing the Department's contention that its law enforcement disciplinary files created prior to June 12, 2020 are not subject to FOIL disclosure because the repeal of Civil Rights Law §50-a "is not retroactive", the Appellate Division opined that this "was not a ground invoked by [the Department] in denying [Petitioner's] FOIL requests and, therefore, is not properly before the court.

* Law enforcement disciplinary records and records relating to allegations of police officer misconduct.

** Records were also withheld or redacted to eliminate references to, and identifying information of, nonpolice individuals and records of 911 calls were redacted completely or withheld by the Department under color of Suffolk County Law §308(4).

Click HERE to access the Appellate Division's decision posted on the Internet.

Workers' Compensation Board facilities to reopen for in-person hearings and services

Commencing Tuesday, October 8, 2024, multiple New York State Workers’ Compensation Board offices will be reopening for in-person hearings and services by appointment. Virtual hearings will remain the standard statewide for all hearing locations. However, anyone who would like an in-person hearing or an appointment for other services, should follow the directions included below.

Please note the following exceptions:

Due to construction, in-person hearings and appointments will be delayed for two Board locations, the Manhattan District Office (targeting January 2025) and the Queens District Office (target date to be announced).

Exact dates for the reopening of these locations will be shared as soon as possible.

Additionally, in-person hearings and appointments for Allegany and Jamestown will be held in Buffalo; New City in White Plains; and Plattsburgh in Menands. Please see the Locations page of the Board’s website for more details on all locations.

Requesting in-person hearings for other locations

Any party attending a virtual hearing on or after October 8, 2024, can request to have their next workers’ compensation hearing in person at a Board location. Such requests should be made directly to the Workers’ Compensation Law Judge during a scheduled virtual hearing. Otherwise, hearings will remain virtual.

In-person hearings will bring the injured worker, their legal representative (if applicable), and other parties (if they so choose) together at a physical Board location for their hearing. 

Please note that attorneys and legal representatives will be required to accompany their clients to all in-person hearings or find an appropriate substitute to accompany them. 

Services

Injured workers and other stakeholders will also be able to request in-person appointments at a Board office for support services and other Board resources. This includes:

• free appointments with our Vocational Rehabilitation Counselors or Licensed Master Social Workers
• using Board computers for case-related activities or to complete a Certificate of Attestation of Exemption from New York State Workers’ Compensation and/or Disability Benefits Insurance Coverage (Form CE-200).

These in-person appointments can be requested on or after October 8, 2024, by calling the Board’s Customer Service line at (844) 337-6301 or by emailing VocRehab@wcb.ny.gov or SocialWorkers@wcb.ny.gov for the relevant support. 

Please Note: The phone line and email addresses are not available for requesting an in-person hearing. As indicated above, those requests should be made directly to the Workers’ Compensation Law Judge during a scheduled virtual hearing.

Reopening with this by-appointment approach will enable the Board to offer an important public service while efficiently managing hearing calendars and local staffing requirements based on demand. The Board will evaluate the success of this approach over time and make any modifications as appropriate.

Did you know the Board has free support services available for injured workers?
Learn more at wcb.ny.gov/supportservices

 

US Department of Labor: Reports of Violations and Settlements – September 16 to 30, 2024

As noted by Drew Lunt, of the Lunt Group*, the United States Department of Labor [US DOL or DOL] issues reports of violations and settles cases covering the federal laws they are responsible for enforcing. These federal laws include:

Fair Labor Standards Act (FLSA)

Occupational Safety and Health Act (OSHA)

Family and Medical Leave Act (FMLA)

Davis-Bacon and Related Acts

McNamara-O’Hara Service Contract Act

Executive Order 11246

Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Section 1188 — Admission of Temporary H-2A Workers

H-2B Program

Employee Retirement Income Security Act (ERISA)

*  © 2024, The Lunt Group LLC, All Rights Reserved

Click HERE to access Mr. Lunt's report dated September 30, 2024.