A collective bargaining agreement may provide that qualified interested employees have precedence over non-employee applicants for appointment to the position

The Town of Clarkstown and the Town's Superintendent of Highways [Petitioners] commenced the instant CPLR Article 75 action in an effort to permanently stay a demand to arbitrate an issue submitted by the certified or recognized employee organization, in this instance the Civil Service Employees Association, Inc. [CSEA].

CSEA contended that the Petitioners' appointment of an "external applicant" to a position in the Town Highway Department violated a provision in the controlling collective bargaining agreement [CBA]. The provision cited by CSEA provided that current employees of the Town, including Highway Department employees, would give "precedence over external applicants" in the appointment of applicants to posted positions.

When the Petitioners' appointing "an external applicant to a position in the Highway Department", CSEA filed demands seeking to have the matter submitted to arbitration on behalf of the current employees of the Town who had applied for appointment to the position. Supreme Court denied the Town's petition and Petitioners appealed. The Appellate Division affirmed the Supreme Court's decision, with costs.

The Appellate Division's decision noted that:

1. "Public policy in New York favors arbitral resolution of public sector labor disputes";

2. A dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test whereby the court must:

    [a] first determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and if the court determines that there is no such prohibition barring to arbitrating the issue and then:

     [b] "the court must examine the parties collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute".

3. Highway Law §140(4) vests a town's highway superintendent with the authority to "employ such persons as may be necessary for ... the maintenance and repair of the town highways and bridges," and the CBA's provision for filling vacancies does not impede or usurp that authority to the extent that the provision in the CBA "does not require the highway superintendent to hire a nonqualified candidate". 

Further, opined the Appellate Division, Supreme Court had correctly determined that the parties had agreed to submit disputed issued involving the terms and conditions of employment set out in the CBA to arbitration.

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

Redressing an interruption which occurred in the course of the administration of an examination

Petitioner in this appeal to New York States' Commissioner of Education challenged the New York City Department of Education's refusal to permit Petitioner's child to retake the examination for admission to a Specialized High School due to an alleged distracting incident that had taken place in the course of the administration of the examination caused by another student taking the examination.

Although the Commissioner dismissed Petitioner's appeal as untimely, Commissioner Rosa addressed two other significant matters:

1. Petitioner's allegation that an incident caused by another participant [classmate] in the examination “completely shatter[ed] [Petitioner's student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”

2. The Department of Education's acted in an arbitrary or capricious manner when it refused to permit Petitioner's child to retake the examination.

As to impact on the incident on Petitioners' child, the Commissioner said that the examination proctor reported that the classmate became distressed but the "The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination"

With respect to Petitioner's assertion that the incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”  Petitioner did not prove that the New York City Department of Education acted in an arbitrary or capricious manner in denying Petitioner's request that that Petitioner's child be permitted to retake the examination.   

The complete text of the Commissioner's decision is set out below:

Decision No. 18,636

Appeal of G.W., on behalf of his child, from action of the New York City Department of Education regarding administration of an examination.

(September 11, 2025)

Muriel Goode-Trufant, Corporation Counsel, attorneys for respondent, Madison M. Moore, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“respondent”) to allow his child (the “student”) to retake an examination.  The appeal must be dismissed as untimely.

An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Even assuming the accrual date most favorable to petitioner—February 26, 2025, when he was informed that he could file an appeal to the Commissioner—petitioner commenced the instant appeal 48 days thereafter.  Petitioner explains that he “continued to seek internal redress until March 26, 2025.”  A request for reconsideration, however, does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Accordingly, the appeal must be dismissed.

Even if timely, the appeal would have been dismissed on the merits.  Petitioner complains that the student became distracted during an administration of the Specialized High Schools Admissions Test[1] when a classmate cried during the testing period.  As part of an investigation, respondent’s Offices of Assessment (OA) and Student Enrollment (OSE) spoke with the exam proctor.  The proctor reported that the classmate began crying at 11:37 a.m.  The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination.  The proctor reported that the entire incident lasted less than five minutes.  OA and OSE concluded that the incident did not compromise the administration of the examination or that a retest was otherwise warranted.

While petitioner asserts that this incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,” he has not proven that respondent acted in an arbitrary or capricious manner.  Therefore, the appeal would be dismissed on the merits (Appeal of Goodman, 35 Ed Dept Rep 93, Decision No. 13,477).

THE APPEAL IS DISMISSED.

[1] Under State law, this examination is “the principal means of admission” into respondent’s Specialized High Schools.  See Appeals of C.K., et al., 59 Ed Dept Rep, Decision No. 17,748.

 

The health insurance benefits of a retiree of a school district or a BOCES cannot be diminished unless a corresponding diminution is made for its active employees

In this hybrid proceeding pursuant to CPLR Article 78, Petitioner challenged a decision of the Board of a Cooperative Educational Services [BOCES] to discontinue its reimbursing certain of its retired employees' Medicare Part B charges and eliminated its reimbursements for Medicare Part D premiums. 

Petitioner also sought a judgment declaring that the BOCES violated Chapter 729 of the Laws of 1994, as amended by Chapter 22 of the Laws of 2007, the so-called "Moratorium Law", prohibiting a school district or a BOCES from diminishing its retirees' health insurance benefits unless it makes a corresponding diminution of such benefits then available to its active employees.

Supreme Court granted the Petitioner's appeal and annulled the BOCES' action. The BOCES was directed to reinstate the subject reimbursements and benefits and the Supreme Court held that the BOCES had violated the Moratorium Law. The BOCES appealed the Supreme Court's ruling.

The Appellate Division sustained the Supreme Court's determinations, explaining:

1. The Moratorium Law "sets a minimum baseline or floor for retiree health benefits, which is measured by the health insurance benefits received by the employer's active employees";

2. A school district or BOCES "may not diminish retirees' health insurance benefits unless it makes 'a corresponding diminution in the health insurance benefits or contributions of active employees'"; and

3. The purpose of the Moratorium Law "is to protect the rights of retirees who are not represented in the collective bargaining process".

The Appellate Division held that Supreme Court had correctly determined that BOCES did not make a "corresponding diminution in the health insurance benefits or contributions of active employees" when it reduced the reimbursements to the Petitioner's Medicare Part B charges and eliminated reimbursements for Medicare Part D premiums. 

In addition, the Appellate Division opined that "Supreme Court correctly compared the health insurance coverage offered to certain retirees to the health insurance coverage offered to the active employees" and found that BOCES' contentions to the contrary were "without merit".

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

Selected items posted on blogs during the week ending October 4, 2025

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Transparency in Motion: Real-Time Data for Safer Streets and Stronger Communities Public safety agencies are under pressure to do more with less -- respond faster, operate more efficiently, and remain accountable to both leadership and the communities they serve. This paper explores how telematics and in-vehicle data are helping agencies meet those expectations and deliver measurable results. DOWNLOAD 

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An applicant for accidental disability retirement must establish that the disability suffered was the result of an accident within the meaning of the Retirement and Social Security Law

Petitioner, a police detective assigned to an executive protection detail, filed an application for accidental disability retirement benefits contending that he was permanently incapacitated from the performance of his duties as the result of an incident that occurred in the course of his performance of his duties. 

The New York State and Local Police and Fire Retirement System [ERS] denied Petitioner's application based on its determination the underlying incident did not constitute an accident within the meaning of Retirement and Social Security Law §363. Petitioner filed an administrative appeal. 

An Administrative Hearing Officer sustained the ERS ruling after an administrative  hearing. Petitioner then initiated a CPLR Article 78 proceeding challenging the ERS ruling.

Citing Matter of Stefanik v Gardner, 236 AD3d 75, the Appellate Division dismissed Plaintiff's appeal, explaining:

1. "As the applicant, [Petitioner] bore the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, ERS's determination in this regard will be upheld if supported by substantial evidence; 

2. "An accident in this context means a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact";* 

3. Petitioner testified that on the day in question he was assigned to the executive protection detail and, in that capacity, had transported a county executive to various meetings and that he did not recall anything significant events having occurring in the course of his performing such tasks; and 

4. The record did not indicate that Petitioner had engaged in any particularly stressful or strenuous activity in the course of Petitioner's performance of such duties 

Based on the record, the Appellate Division held the Petitioner failed to satisfy his burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law, disagreeing with Petitioner's argument to the extent that he had contended that "the chest pain he experienced — in and of itself — was sudden and unexpected and, hence, qualified as a precipitating accidental event".

Accordingly, the Court ruled that "ERS's determination denying Petitioner's application for accidental disability retirement benefits will not be disturbed".

* See Matter of Stefanik v Gardner, 236 AD3d 75.

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