Retired employee held not entitled to certain lump sum payments set forth in a successor collective bargaining agreement

The County of Rockland [and others "Defendant"] and the Rockland Association of Management Union, AFT Local 4404 [RAM] executed a collective bargaining agreement that covered the period from January 1, 2014, to July 31, 2016 [2014 CBA].

On September 30, 2020, the Defendant and RAM executed a collective bargaining agreement that covered the period from August 1, 2016, to December 31, 2021[2020 CBA] which, as did the 2014 CBA, provided that "[whenever]" the parties agreed that "wage increases shall be paid retroactively," retired employees would be eligible for wage adjustments for any applicable continuous period of active service. 

The 2020 CBA provided that employees who "(1) had worked in 2017 and 2018 and (2) remained active on the County's payroll on the date the County executive approved the successor CBA would receive 'lump sum' payments of $800 and $1500, respectively".

The Plaintiff in the instant action had worked for the County from March 26, 1986, until her retirement on August 7, 2018, brought this act seeking to :

1. Recover damages for breach of contract; and

2. Under color of 42 USC §1983, alleged the "deprivation of a vested property interest without due process", claiming entitlement to the two lump sum payments set forth in the 2020 CBA. 

The Defendant moved, among other things pursuant to CPLR 3211, to dismiss Plaintiff's first and second causes of action insofar as asserted against the County, the County Executive, and the County Legislature. Supreme Court granted the motion; Plaintiff appealed the Supreme Court's judgment.

In its decision, the Appellate Division noted that:

1. "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law; 

2. "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as . . . deeds, contracts, and any other papers, the contents of which are essentially undeniable. Conversely, letters, emails, and . . . affidavits . . . do not meet the requirements for documentary evidence";  

3. On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"; and 

4. Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed".

Opining that County conclusively established that the Plaintiff was not entitled to the two lump sum payments set forth in the successor CBA, the Appellate Division said  that "By the terms of Article VIII(3)(a)(1) and (2) of the successor CBA, the [Plaintiff] was ineligible for the lump sum payments because she had retired before the successor CBA had been approved by the County executive".

Further, Appellate Division commented that the Plaintiff's entitlement to retroactive wage increases only vested upon the agreement of the County and RAM to enact such increases and "the 2020 CBA expressly provided that the lump sum payments 'shall not increase the salary rate of the employees receiving [them] or the salary schedule'".

The Appellate Division then observed that Supreme Court, citing Domitz v City of Long Beach, 187 AD3d 853, quoting Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 32, "properly declined" to consider [Plaintiff's] allegation that it was the past practice of the County to pay retired employees similarly situated to the plaintiff pursuant to prior collective bargaining agreements since "'past practice, like any other form of parole evidence, . . . cannot be used to create a contractual right independent of some express source in the underlying agreement", concluding that Supreme Court properly granted dismissal of the first cause of action, alleging breach of contract, insofar as asserted against the County, the Executive, and the Legislature.

The Supreme Court, said the Appellate Division, "also properly granted dismissal of the second cause of action, alleging a violation of 42 USC §1983, insofar as asserted against the County, the Executive, and the Legislature pursuant to CPLR 3211(a)(7)". In the words of the Appellate Division, "The benefit allegedly denied to the [Plaintiff] 'does not constitute the kind of deprivation that may give rise to a due process claim'".

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

Claimant for unemployment insurance benefits challenged the Unemployment Insurance Appeal Board's denying her application to reopen a prior decision

Claimant, who simultaneously worked as a full-time employee for one employer and as a part-time employee for another employer, filed a claim for unemployment insurance benefits after losing her part-time employment. 

Claimant received, among other things, federal unemployment benefits. The Department of Labor, however, subsequently determined that Claimant was ineligible to receive such unemployment benefits as "she was not totally unemployed" and charged her with recoverable overpayments.

Claimant requested a hearing. The Administrative Law Judge [ALJ] determined that the Department lacked jurisdiction to review her benefit claim and issue the initial determinations more than a year after Claimant received benefits, finding that the evidence failed to establish that she made willful misrepresentations to obtain benefits, and instead revealed that she had been mistaken and had taken steps to address the issue". 

The Department appealed the ALJ's ruling and the Unemployment Insurance Appeal Board reversed the ALJ's determination and reinstated the Department's initial determinations. Claimant then filed an application seeking to reopen the matter pursuant to Labor Law §534, which the Appeal Board denied. Claimant next filed an appeal of the Board's denial of her "application to reopen" with the Appellate Division.

The Appellate Division:

1. Decided that the merits of the Board's original determination were not before it "given that [Claimant's] application to reopen was not made within the 30 days during which the original determination could be appealed"; and

2. Citing Matter of Amer [Commissioner of Labor], 234 AD3d 1233, explained that "a decision as to whether to grant such an application is within the sound discretion of the Board and, absent a showing that it abused that discretion, its decision will not be disturbed".

Noting that no new material or arguments that would affect the Board's decision was presented in Claimant's application to reopen the Board's earlier ruling, the Appellate Division concluded that it found no abuse of discretion in the Board's denial of Claimant's application to reopen the matter.

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

 

Scammers are sending phishing text messages to taxpayers about income tax refunds. The New York State Tax Department does not use text messages, email, or social media to request personal tax information.

Selected items posted on blogs during the week ending September 19, 2025

Alaska Joins the AI Ethics Conversation -- Rochester, New York, Attorney Nicole Black's recent posting on the Internet addresses legal technology and ethics. Read the whole entry  

Disability inclusion in aging law and policy - On October 8. 2025, the Government Law Center at Albany Law School will hold its annual Nancy M. Sills ’76 Memorial Lecture on Aging Law and Policy on its campus and via the Internet  Click HERE to Register. 

Distracted Driving in Government Fleets: The Latest Data - Based on a nationwide survey of CDL operators, this report breaks down the most common distractions, which tech tools and policies drivers actually trust, and what public agencies can do now to increase safety and retain skilled drivers. DOWNLOAD

How Public Agencies Are Using Social Media in 2025 - Social media has become the public sector's front line for resident engagement, but many agencies are still under-resourced and uncertain about what’s working. This new report offers a candid look at which platforms are delivering results, where agencies are falling short, and how the landscape is shifting in 2025. DOWNLOAD

Transforming Water Resource Management - As climate pressures intensify, state governments need better tools to manage water more effectively, equitably, and sustainably. Powered by the largest constellation of Earth observation (EO) satellites in orbit and a flexible cloud-based platform, learn how your agency can gain continual and detailed insights into changes across any region. DOWNLOAD

Unified Data Security for Dummies - Sensitive data is moving faster -- and farther -- than legacy tools can track. This guide breaks down how public agencies can gain visibility across cloud apps, protect regulated information, and reduce the operational burden on security teams. DOWNLOAD

Plaintiff's cause of action alleging unlawful discrimination trigged by requiring all employees of the City of New York to provide proof of COVID-19 vaccination dismissed

Plaintiff in this action sought to recover certain damages, alleging he had suffered employment discrimination on the basis of religion in violation of the New York State Human Rights Law [NYSHRL] and the New York City Human Rights Law [NYCHRL] as the result of the Defendants "intentional tort of forcing unwanted medical care on [the Plaintiff]" as the result of New York City's Commissioner of Health and Mental Hygiene requiring all City employees, among others, to provide proof of COVID-19 vaccination. 

Supreme Court granted the motion of the City of New York, New York City Police Department [NYPD], the New York City Department of Health and Mental Hygiene, and others [Defendants] to dismiss the complaint insofar as asserted against them. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division, noting that both the "NYSHRL and NYCHRL prohibit employment discrimination on the basis of religion", observed that Plaintiff's "complaint's conclusory assertions that the [Defendants] discriminated against the [Plaintiff] based on religion were unsupported by sufficient factual allegations to state a cause of action under either the NYCHRL or the NYSHRL". 

Further, opined the Appellate Division, Plaintiff's "complaint failed to sufficiently allege that the NYCHRL 'required a more robust or individualized dialogue than the process he received'." 

Accordingly, the Appellate Division ruled that Supreme Court "properly granted that branch of the [Defendants'] motion to dismiss the causes of action alleging violations of the NYSHRL and the NYCHRL and "for aiding and abetting violations of those statutes insofar as asserted against them".

Further, the Appellate Division held that:

1. As the vaccine mandate was rescinded in February 2023, the cause of action seeking certain declaratory relief regarding the [Defendants'] "policy and practice" with respect to "religious accommodations to [the Defendants'] vaccine policies," is academic; 

2. The exception to the mootness doctrine is inapplicable here and Supreme Court properly granted that branch of the [Defendants'] motion to dismiss the cause of action seeking "certain declaratory relief insofar as asserted against them";

3. Supreme Court properly granted that branch of the Defendants' motion to dismiss the Plaintiff's cause of action alleging a violation of the Free Exercise Clause of the New York Constitution insofar as asserted against them "as the Plaintiff has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be redressed by alternative remedies, including those pursued under the NYCHRL and the NYSHRL in this action"; and

4. Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action and in this instance "the notice of claim failed to include any allegations relating to these causes of action". 

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