Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue

City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06738, Appellate Division, Second Department, [Decided with Matter of Yonkers Firefighters v City of Yonkers, Appellate Division Docket No. 2016-02470]

[See, also, City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06750, Appellate Division, Second Department and City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06751, Appellate Division, Second Department]

On December 4, 2014, Yonkers Firefighters, Local 628, International Association of Fire Fighters, AFL-CIO, [Local 628], filed a demand for arbitration alleging that Christopher Giardini had been improperly terminated from the position of firefighter in violation of a collective bargaining agreement with the City of Yonkers [City]. Two weeks later, Local 628 commenced a proceeding pursuant to CPLR Article 78 to review the determination of the City terminating Giardini's employment.

Local 628 actively prosecuted both arbitration and the Article 78 action. On September 26, 2015, an arbitration award*in favor of Local 628 and the on December 23, 2015, the City commenced proceeding pursuant to CPLR Article 75 to vacate the September 26, 2015, arbitration award, alleging, among other things, that the arbitrator lacked authority to arbitrate the dispute because Local 628 had waived arbitration of the dispute by commencing and prosecuting the CPLR Article 78 proceeding it initiated in December 2014.

Supreme Court granted the City's petition and vacated the arbitration award. Local 628 appealed Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, noting that a right to arbitration may be modified, waived or abandoned "[w]here a party affirmatively seeks the benefits of litigation, in a manner clearly inconsistent with [its] claim that the parties were obligated to settle their differences by arbitration...." Further, said the court, "[O]nce waived, the right to arbitrate cannot be regained, even by [a] respondent's failure to seek a stay of arbitration."

Here, said the court, Local 628, by commencing an action at law involving arbitrable issues, it waived whatever right it had to arbitration. Accordingly, ruled the Appellate Division, because Local 628 commenced the CPLR Article 78 proceeding during the pendency of the arbitration the City correctly argued that Local 628 waived its right to arbitration as a result and the arbitrator should not have conducted the arbitration. As a result the award exceeded the arbitrator's authority and the Appellate Division concurred with the Supreme Court's determination granting the petition and vacating the arbitration award. 

* The arbitrator ruled that that Giardini's employment as a probationer had become permanent prior to the termination of his employment notwithstanding interruptions in his performance of his firefighter duties during his probationary period due to injuries suffered in the line of duty and directed his reinstatement to the position of firefighter with back pay. However, it should be noted that in the event an employee injured on the job is given a "light duty assignment," as was the case with respect to Giardini, the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes. In Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601, the court held that an injured firefighter may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of "light duty."

A NYPPL Note: The Boyle court reversed a decision which had granted Boyle, and another New York City firefighter, tenure one year after the effective date of their respective permanent appointments. The reversal of the earlier ruling was based on the concept that the probationary period is designed to determine the fitness of the employee for tenure on the basis of his or her job performance. A worker who is absent because of a disability, work-connected or not, or one who is performing "light duty," is not able to satisfy this requirement as he or she cannot be evaluated with respect to his or her actual performance of the duties of the position. Although the firefighters had been in service for one year, they had spent only two or three months performing the full duties of their positions. They were absent on sick leave or assigned light duty for the balance of the time. The opinion concludes with the following observation: "To be sure, any probationer who is injured in service should be granted the protections to which he or she is entitled, such as sick-leave benefits and the opportunity to apply for disability retirement. The grant of tenure, however, to an employee who does not successfully complete a probationary period frustrates the function of probation, and undermines the constitutional requirement that appointments be based on merit and fitness."

The Local 628 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06738.htm

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Appellate Division, Second Department

Anthony Johansmeyer and others [Petitioners] sued the New York City Department of Education and the City of New York [jointly DOE] and Child Center of New York [CC] to recover damages for negligent hiring, supervision, and retention of a member of CC's staff [Employee] alleged to have inflicted acts of sexual abuse and molestation on an infant student. The defendants' motions for summary judgment dismissing the complaint as asserted against each of them was denied by Supreme Court, which ruling was sustained by the Appellate Division.

The Appellate Division explained that "Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business," citing Fernandez v Rustic Inn, Inc., 60 AD3d 893, an employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.

However a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and the employer's negligence lies in having " placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention'" of the employee.

With respect to DOE, the Appellate Division said DOE "failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision" of Employee and its submissions in support of its motion for summary judgment "raised a triable issue of fact as to whether the DOE took the appropriate measures" to evaluate Employee's "employment and fitness at the time he was allowed to intern at the school." In addition, said the court, there was a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Employee "placed [Employee] in a position to cause foreseeable harm."

The court also noted that, in general, liability may not be imposed on school authorities where all of the improper acts against a student occurred off school premises and outside school hours. Here, however, the Appellate Division said that DOE's submissions demonstrated that, although the sexual abuse ultimately occurred in the infant's home," it was preceded by time periods when the infant was alone with Employee during school hours on a regular basis. Thus, triable issues of fact exist as to whether the DOE knew or should have known of such behavior and Employee's propensity for sexual abuse.

The Appellate Division also agreed with Supreme Court's denial CC's cross motion for summary judgment, noting that although CC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring by submitting the deposition transcript of its administrative director, Plaintiffs had raised a triable issue of fact by submitting Employee's Child Center employee records which indicated that Child Center never checked references, clearances, proof of education, or New York State Sex Offender Registration records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06518.htm

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm

Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty

Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty

Mankowski v Nassau County, 2018 NY Slip Op 02470, Appellate Division, Second Department

Stanley Mankowski, a correction officer, was injured by inmate and was absent from work due to the line-of-duty injury and continued to receive his salary and other benefits pursuant to General Municipal Law §207-c.* Treated by an orthopedic surgeon, in a police surgeon designated by the appointing authority to conduct examinations assessing Mankowski's capability of returning to work, found that Mankowski could return to work " in a restricted/light-duty capacity" such as in an administrative role with no supervision of inmates.

Mankowski's union filed a contract grievance and commenced a proceeding in the Supreme Court, seeking a court order to enjoin the enforcement of the report of the police surgeon dated January 20, 2015, contending that "under the applicable collective bargaining agreement, it was the responsibility of the hearing officer, not a police surgeon, to determine the restrictions under which the petitioner was to return to work."

Supreme Court vacated the hearing officer's determination on the ground that the hearing officer exceeded or imperfectly executed her power such that a final and definite award was not made, and remitted the matter to the hearing officer to make the required determination. In a determination on remittal dated March 26, 2015, the hearing officer adopted the factual findings of the police surgeon and specified the the types of duties to which Mankowski could be assigned.

Again Mankowski challenged the hearing officer's ruling, filing a CPLR Article 78 petition seeking a judicial review the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, on the ground, among others, that they were not supported by substantial evidence. Supreme Court disagreed and determining that the hearing officer's determinations could be reviewed pursuant to both CPLR Articles 75 and 78, found that both of the hearing officer's determinations were supported by substantial evidence and denied Mankowski's petition. Mankowski appealed.

The Appellate Division, noting that as Mankowski's petition raises a question of whether the hearing officer's determinations were supported by substantial evidence, the Supreme Court should have transferred the proceeding to Appellate Division. However, as the "complete record is now before" the Appellate Division, the court treated the matter as one which has been transferred to it and reviewed the hearing officer's determinations de novo.

The Appellate Division said that a municipality is entitled to require an injured officer to submit to a medical examination and, if the physician determines that the officer is able to perform specified types of light duty, the municipality may discontinue payment of the officer's full salary or wages if the officer refuses to return to work when a light-duty post is available and offered to the officer. In the event the individual challenges the medical finding and submits evidence from his or her treating physician to support a claim of "continued total disability," however, the termination of benefits payable under General Municipal Law § 207-c and an order to report for duty may not be enforced until an administrative hearing has been held

In this instance the correction officer sought such an administrative hearing. As the hearing officer's determination following that hearing was subject to review pursuant to CPLR Article 78, "[j]udicial review of a determination of an administrative agency made after a hearing required by law is limited to consideration of whether the determination is supported by substantial evidence."

Noting that substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the Appellate Division found that the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, finding that Mankowski was able to return to work on restricted duty, were supported by substantial evidence.

Accordingly, the Appellate Division ruled that the hearing officer's determinations must be confirmed, denied Mankowski's petition dismissed the proceeding on the merits; and awarded one bill of costs to the employer.

* General Municipal Law §207-c requires certain municipalities to continue to pay law enforcement personnel who sustain a disability in the course of their employment their salary and certain other benefits while on "leave for disability." General Municipal Law §207-a provides for the payment of similar benefits to firefighters injured in the performance of their duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02470.htm

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm