Failure to exhaust administrative remedies held critical to a party filing a petition pursuant to Article 78 of New York State's Civil Practice Law and Rules

Supreme Court granted the motion of Board of Education of the City School District of the City of New York [DOE] to dismiss the Plaintiffs' petition to annul votes of the Panel for Education Policy [PEP] changing the utilization of New York City school buildings in Brooklyn and Queens because of Plaintiff's alleged failure to comply with provisions of the Education Law and [DOE] Chancellor's Regulation A-190.

Plaintiff appealed the Supreme Court's ruling.

The Appellate Division, citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, and Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 88 AD3d 72, unanimously affirmed DOE's motion, without costs, opining "Supreme Court properly dismissed this proceeding based on [Plaintiffs'] failure to exhaust their administrative remedies, .

The court explained that Plaintiff's CPLR Article 78 petition challenged "the determination to locate or co-locate a charter school within a public school building . . . that has been approved by the board of education" for both buildings, which "may be appealed to the commissioner" of the New York State Department of Education under Education Law §310 (Education Law §2853[3][a-5]).

Thus, as shown by the DOE's exhibits, which included several decisions of the Commissioner of Education reviewing "the adequacy of educational impact statements and building usage plans, as well as compliance with procedural requirements, in challenges to PEP votes approving charter school co-locations in the City of New York", Petitioners' claims cannot be brought under CPLR Article 78, since they "can be adequately reviewed by appeal to a court or to some other body or officer", citing Education Law §§2590-h[2-a][b][i]-[vii], 2853[3][a-3][2][A]-[F].

Plaintiffs' had contended that the educational impact statements failed to adequately address the impact on class sizes. However, said the Appellate Division, "Even if this were such a violation", Plaintiffs would still be required to exhaust their administrative remedies by appealing to the Commissioner of Education.

In the words of the Appellate Division: "Contrary to the Plaintiffs' contention, the petition does not raise a pure question of law, as it challenges the facts underlying the DOE's assumptions of projected class size for the public schools to be housed with the co-located charter schools, and raises other factual allegations related to safety and traffic that they claim the DOE overlooked or insufficiently addressed, among other things".

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

 

Standing to file a petition pursuant to Article 75 of the CPLR seeking to modify an arbitrator's award

Section 7511(a) of Article 75 the New York State Civil Practice Law and Rules [CPLR] provides, in pertinent part, that "[a]n application to vacate or modify an [arbitrator's] award may be made by a party within ninety days after its delivery to him". 

Individual members of Corrections Unit 7800-09 [Corrections Unit], a collective bargaining unit [CBA] consisting of persons employed in certain titles by the Onondaga County Sheriff's Department are the Petitioners in this Article 75 action.

In the words of the Appellate Division: "Here, the CSEA brought the grievance on behalf of County employees covered by the CBA. The CBA provides that an employee may submit their own grievance to the County, however, it permits only the CSEA to submit a class action grievance". 

The CBA further provides that the CSEA may request arbitration with respect to a grievance, but no provision in the relevant CBA permits an employee to request arbitration, nor is there any provision in the controlling CBA that makes the employees a party to the collective bargaining agreement. Further, neither the Petitioners nor the Corrections Unit participated in the relevant arbitration and nothing in the record suggests that the Corrections Union instructed the CSEA to act on its behalf."

Accordingly, the Appellate Division concluded that the Petitioners in the instant appeal were not parties in the arbitration and thus they do not have standing to file a petition seeking to modify the arbitrator's award".

The Appellate Division's decision is set out below:

Matter of Brockway (County of Onondaga)

2024 NY Slip Op 05745

Decided on November 15, 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 November 15, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, NOWAK, AND HANNAH, JJ.

819 CA 23-01882

[*1]ADAM BROCKWAY, ET AL., PETITIONERS-APPELLANTS, AND COUNTY OF ONONDAGA, RESPONDENT-RESPONDENT.

THE TUTTLE LAW FIRM, CLIFTON PARK (JAMES B. TUTTLE OF COUNSEL), FOR PETITIONERS-APPELLANTS.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MICHELLE K. DEKAY OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (Danielle M. Fogel, J.), entered October 2, 2023. The order dismissed the petition to modify an arbitration award.

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

Memorandum: Petitioners are individual members of Corrections Unit 7800-09 (Corrections Unit), a collective bargaining unit consisting of persons employed in certain titles by the Onondaga County Sheriff's Department. Prior to January 30, 2019, the Corrections Unit was a part of the much larger bargaining unit, known as the Onondaga Local 834 of Civil Service Employees Association, Inc. (CSEA), which included virtually all employees of respondent County of Onondaga (County). In early 2020 and in response to the COVID-19 pandemic, the County closed its offices and facilities in whole or in part and instituted a series of measurements to address the emergency situation. The County required some County employees, however, to continue to work because they were deemed essential to County operations. Thereafter, the CSEA filed a grievance seeking additional compensation for covered employees who were required to report to work at County operations during emergency conditions, upon allegations that the employees were entitled to such compensation pursuant to a provision in the collective bargaining agreement between the CSEA and the County (CBA). The CSEA and the County, however, had entered into a Memorandum of Agreement (MOA) during the pandemic providing that employees would receive the "salary and/or regular daily wage or base rate of employees in the CSEA Bargaining Unit(s) through March 31, 2020 due to COVID 19, if employees in the CSEA Bargaining Unit(s) [were] scheduled to work or stand by from home by the County." The MOA further provided that it superseded all language in the CBA "as it relates to employee compensation and work assignments through March 31, 2020." After the CSEA and the County were unable to resolve the grievance, a demand for arbitration was filed by the CSEA. After a hearing, the arbitrator denied the grievance, finding, in relevant part, that the MOA superseded the relevant provision in the CBA. Petitioners assert that the CSEA's counsel's office advised the Corrections Unit that the County considered the arbitrator's award to apply to the Corrections Unit as well as the larger CSEA.

Petitioners thereafter brought the instant petition against the County, seeking an order modifying the arbitrator's award so that it provides that the award has no effect on the Corrections Unit or the collective bargaining agreement between the Corrections Unit and the County. Petitioners allege that, although the CSEA and the Corrections Unit have common representation through the CSEA's counsel's office, they are separate bargaining units with separate collective bargaining interests and separate collective bargaining agreements. [*2]Moreover, petitioners allege that the Corrections Unit was never asked to accept, nor did it sign off on, the MOA, and that the Corrections Unit did not authorize the CSEA to act on its behalf in the grievance. Supreme Court determined that petitioners did not have standing and dismissed the petition. We affirm.

CPLR 7511 (a) provides that "[a]n application to vacate or modify an [arbitrator's] award may be made by a party within ninety days after its delivery to him" (emphasis added). Further, when an arbitration results from a procedure outlined in a collective bargaining agreement, only those who are parties to the collective bargaining agreement can seek to vacate the arbitrator's award, unless the collective bargaining agreement grants those rights to a third party (see Matter of Alava v Consolidated Edison Co. of N.Y., 183 AD2d 713, 714 [2d Dept 1992]; see also Matter of City of Syracuse [Lee], 163 AD3d 1394, 1397 [4th Dept 2018]; see generally Matter of Wilson v Board of Educ. of City of N.Y., 261 AD2d 409, 409 [2d Dept 1999]).

Here, the CSEA brought the grievance on behalf of County employees covered by the CBA. The CBA provides that an employee may submit their own grievance to the County, however, it permits only the CSEA to submit a class action grievance. The CBA further provides that the CSEA may request arbitration with respect to a grievance, but no provision in the CBA permits an employee to request arbitration, nor is there a provision that makes the employees a party to the collective bargaining agreement (see generally Matter of Case v Monroe Community Coll., 89 NY2d 438, 442-443 [1997]; Matter of Diaz v Pilgrim State Psychiatric Ctr. of State of N.Y., 62 NY2d 693, 695 [1984]). Additionally, neither petitioners nor the Corrections Unit participated in the arbitration and nothing in the record suggests that the Corrections Union instructed the CSEA to act on its behalf. Thus, we conclude that petitioners were not parties to the arbitration, and therefore they do not have standing to petition to modify the arbitrator's award (see generally CPLR 7511 [a]; Matter of Widrick [Carpinelli], 155 AD3d 1564, 1564 [4th Dept 2017], affd 32 NY3d 975 [2018]; County of Westchester v Mahoney, 56 NY2d 756, 758 [1982]).

Entered: November 15, 2024

Ann Dillon Flynn

Clerk of the Court

The burden of establishing a prima facie case of unlawful discrimination within the meaning of New York States Human Rights Law is on the applicant or the employee, as the case may be

Petitioner, who had been born deaf, appealed a decision by the New York State Division of Human Rights [DHR] dismissing her complaint that the New York State Office for People With Developmental Disabilities [OPWDD] had unlawfully discriminated against her in violation of New York State's Human Right's Law [[NYSHRL] when OPWDD rescinded its offer to employ Petitioner "because of her hearing loss without first offering her a reasonable accommodation".

Citing Matter of Abram v New York State Div. of Human Rights, 71 AD3d 1471, the Appellate Division said a judicial review of the Division's determination, which adopted the findings of an Administrative Law Judge [ALJ] who had conducted DHR's public hearing of Petitioner's complaint, is limited to the issue whether the DHR's decision is supported by substantial evidence. 

The court then noted NYSHRL requires a petitioner to bear "the burden of establishing a prima facie case ... showing":

(1) the petitioner is a person with a disability within the meaning of the NYSHRL;

(2) an employer subject to the provision of the NYSHR had notice of the petitioner's disability;

(3) with a reasonable accommodation the petitioner could perform the essential functions of the job at issue; and

(4) the employer had refused to make such an accommodation.

The court opined that "there was no dispute that the first two elements" were satisfied as Petitioner was born deaf and used interpreters during her interview and physical examination with OPWDD. 

However, said the Appellate Division, DHR's determination as to the third element was not supported by substantial evidence, explaining that "Whether a job function is essential depends on multiple factors, 'including the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs'."

Rather than considering such factors and whether Petitioner made a prima facie case that she could undertake the essential functions of the job with or without reasonable accommodation, DHR adopted the conclusory determination that "[t]he physical requirements for the ... position" as set forth by the New York Department of Civil Service, and specifically the requirement that Petitioner must pass a hearing test, "are based on the essential functions of the job." That, opined the Appellate Division "was error".

Although written job descriptions, including the standards set by the Department of Civil Service, should be given deference in determining essential job functions in a reasonable accommodation analysis, no one factor is dispositive. Accordingly, said the Appellate Division, "DHR erred in making its determination based solely on the Department of Civil Service standards". Pointing out that the record established that "Petitioner had previously performed substantially similar work, that she was able to perform that job with an interpreter as an accommodation, and that OPWDD's governing accommodation policy provides that reasonable accommodation includes providing interpreters, the record demonstrates that petitioner met her prima facie burden as to the third element".

Addressing the fourth element, the Appellate Division said DHR determined that Petitioner "did not request a reasonable accommodation from" OPWDD, and then concluded that Petitioner failed to establish a prima facie case that OPWDD failed to provide reasonable accommodation. However, noted Appellate Division, "even where a petitioner 'did not request any specific accommodation' prior to initiating 'litigation, [NYSHRL] require[s] [employers] to engage in an interactive dialogue regarding possible accommodations once they bec[o]me aware of [a prospective employee's] condition' requiring accommodation."

In the words of the court, "... the implementing regulations specifically state that [t]he employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested".* 

The Appellate Division concluded that Petitioner "met her prima facie burden as to the fourth element", thus shifting "the burden of production ... to [OPWDD] to rebut the presumption with evidence" that it chose not to hire Petitioner "for a legitimate, nondiscriminatory reason"

Noting that the ALJ's determination, "as adopted by DHR, erroneously concluded that [Petitioner] failed to demonstrate a prima facie case, no determination was made whether OPWDD rebutted the presumption", the Appellate Division annulled DHR's decision and remitted the matter to it "for a new determination".

* See 9 NYCRR 466.11[j][4], [Citation emphasized by the Appellate Division in its decision].

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

New York State Comptroller DiNapoli releases municipal and school audit reports

On November 18, 2024, New York State Comptroller Thomas P. DiNapoli announced the following municipal and school audits were posted on the Internet 

Click on the text highlighted in color to access the text of the audit.

Edgemont Union Free School District – Information Technology (IT) (Westchester County) The IT director did not disable unnecessary user accounts in a timely manner. As a result, the district had an increased risk of unauthorized access to and use of the network. In addition to sensitive IT control weaknesses, auditors reviewed all 665 nonstudent network user accounts and determined that district officials did not disable 34 unneeded network user accounts that had last login dates ranging from July  2021 to July  2023. Officials also did not develop written procedures for adding, modifying or disabling nonstudent network user accounts.

Town of Albion – Supervisor’s Records and Reports (Oswego County)  The supervisor did not follow basic accounting practices by maintaining complete and accurate accounting records and financial reports. As a result, the supervisor provided financial records and reports to the board that contained significant errors, and the board lacked reliable information to manage the town’s financial operations. Auditors determined that the supervisor did not maintain a general ledger, subsidiary revenue and expenditure ledgers or cash receipts and disbursements journals to properly track financial activity. The supervisor’s 2023 revenue and expenditure budget-to-actual reports were not accurate. For example, the reports did not include $551,134 of real property tax revenue and a $109,000 expenditure for a storage building. In addition, budgetary transfers totaling $27,125 were improperly reported as actual expenditures. The supervisor also did not account for payroll-related liabilities, maintain proper cash control accounts and reconcile the town’s bank accounts. Lastly, the board did not conduct a thorough annual audit of the supervisor’s 2023 accounting records, as required by state law.

Caledonia Joint Fire District – Board Oversight of Long-Term Planning (Livingston County) The board and district officials did not develop written multiyear financial and capital plans or develop and adopt a written policy related to fund balance and reserves. For example, the board and district officials maintained a capital building reserve totaling $16,424 and planned to construct a multimillion-dollar fire station but did not develop a detailed written financial plan for this capital project. The board and district officials also did not develop a written vehicle and equipment replacement plan, and three board members did not know when these items needed to be replaced or their estimated replacement costs. Although the district had a capital equipment and apparatus reserve totaling $847,113, the board chair’s original estimated vehicle and equipment replacement needs indicated the district would need $2.7 million to replace these items over the next five years. Without written long-term financial plans, officials did not determine, among other things: how the construction and replacements would be funded long term; the sustained financial needs associated with constructing a new fire station and replacing old vehicles and equipment; or the effect these decisions would have on the district’s fund balance and the tax levy.

City of Lockport – Budget Review (Niagara County) Based on the results of the review, the significant revenue and expenditure projections in the proposed budget appear reasonable. Auditors expect 2024 fire department overtime expenditures to be within the adopted budget’s overtime appropriations. The overtime appropriations in the proposed 2025 budget were reasonable. City officials followed previous recommendations and decreased ambulance revenue estimates closer to actual revenues from $1,025,786 to $991,420; actual collections were approximately $941,000 as of Sept. 30, 2024. The city’s ambulance appropriations and revenue estimates in the proposed 2025 budget were reasonable and conservative.

Otisco Fire District – Audit Follow-Up (Onondaga County) The purpose of this review was to assess the district’s progress in implementing the recommendations in an audit report released in February 2017. Auditors found the district has not made progress in implementing corrective action. Of the three audit recommendations, two recommendations were not implemented, and one recommendation was not applicable for the period that we reviewed.

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Important reminders concerning New York State's Workers' Compensation Board hearings

With the New York State Workers’ Compensation Board’s [Board] reopening to the public by appointment for in-person hearings and other services, Board wishes to take the opportunity to issue a few important reminders:

• All hearings (whether in person or virtual) are formal, legal proceedings, and all parties of interest are required to abide by the Standards of Civility for Proceedings before the Board.
• Legal representatives are expected to attend hearings on time and in professional attire and should be prepared to address the outstanding issues at the hearing.
• All parties should be respectful in their communications at all times.
• Participants in virtual hearings should attend their hearing from an indoor, quiet location.
• Attorneys and representatives for the parties are encouraged to meet and confer prior to the hearing date to narrow and/or resolve the issues before the Judge.

Following these simple rules of etiquette will help ensure a better hearing experience for all involved.