A work-related injury resulting from a concealed cause of the individual's fall may constitute an accident within the meaning of Retirement and Social Security Law

A police officer [Petitioner] exited his patrol car and began walking toward the scene of a third accident in the immediate area when he stepped into a pothole that was covered by snow and ice. He lost his balance and fell backwards, seriously injuring himself. Petitioner's application for accidental disability retirement benefits was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Following a hearing, this determination was sustained by a Hearing Officer and the State Comptroller adopted the Hearing Officer's finding, whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller decision.

The Appellate Division commenced its review of Petitioner's appeal by noting:

1. An applicant for accidental disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination in this regard will be upheld if supported by substantial evidence;

3. For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and

4. To be deemed accidental, the injury must not have been the result of activities undertaken in the ordinary course of one's job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed.

Conceding that at the time of the incident, Petitioner was performing his ordinary job duties of responding to a series of traffic accidents that had occurred during his shift and that falling on a slippery snow- and ice-covered road may be a risk of Petitioner's ordinary job duties, the Appellate Division, in a 4-1 ruling,*  found that falling due to a pothole concealed under the snow and ice is not such a risk, explaining that given the circumstances leading to Petitioner's fall set out in the record, his injury was the result of a "sudden and unexpected event that constitutes an accident as matter of law."

Accordingly the court concluded that the Comptroller's determination was not  supported by substantial evidence and annulled his decision, remitting the matter to the Retirement System "for further proceedings not inconsistent with this Court's decision."

* Judge Clark said that "[the] Court of Appeals has made clear that, to qualify as an accident within the meaning of the Retirement and Social Security Law, there must have been a precipitating accidental event that caused the injury "which was not a risk of the work performed" and, in her view, a fall resulting from stepping  "into a snow- and ice-covered pothole is not a precipitating accidental event "... [a]lthough stepping into the pothole may have been sudden, it was not, on this record, a hazard so out of the ordinary or unexpected under the circumstances so as to qualify as an accident [as Petitioner] ... was equipped with ice cleats to help him traverse the unplowed and unsalted roadway and that, having had ample opportunity to observe and traverse the snow-covered road" while responding to two car accidents at the same location immediately prior to his fall "he was aware of the possibility that road hazards could be concealed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07828.htm

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Disability Benefits for fire, police and other public sector personnel

This e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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The distinction between the internal operations and conduct affecting external relations of an Interstate Compact Commission is critical in determining areas permitting unilateral State action and those requiring bilateral State action

The Port Authority of New York and New Jersey [Port Authority] is an interstate compact agency and thus is not subject to New York legislation governing with respect to its internal operations' unless and until both New York and New Jersey having enacted legislation providing that such legislation is applicable to the Port Authority.

Plaintiff sued the Port Authority and Skanska USA Inc., and Skanska USA Building Inc.*alleging that he sustained injuries as a result of defendants' negligence and failure to comply with Labor Law §§ 200, 240, 241, and 241-a; 29 CFR Part 1910 and Part 1926; and a number of New York Department of Labor Regulations.

Plaintiff alleged that on July 18, 2016, while working at a construction site at One World Trade Center, New York, New York. Supreme Court's rejected the Port Authority's motion to dismiss the Petitioner's CPLR Article 78 action alleging violations of New York State's Labor Law §§240(1), 241(6) and §241-a and the Port Authority appealed. The Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division, conceding the status of the Port Authority as an interstate compact agency, explained that in Agesen v Catherwood, 26 NY2d 521, the Court of Appeals held that the Port Authority is still "subject to New York's laws involving health and safety, insofar as its activities may externally affect the public." The court noted that contrary to the Port Authority's interpretation of Malverty v Waterfront Commn. of N.Y. Harbor, 71 NY2d 977,** the Court of Appeals "did not in overrule its holding in Agesen in deciding Malverty."

In Malverty the Court of Appeals concluded that in "the absence from the text and legislative history of [Article 23 of the New York State's Correction Law] of any reference to the Waterfront Commission, coupled with the absence of an express statement that the Legislature was amending or supplementing the provisions of the "Compact" and that article 23-A would take effect upon the enactment by New Jersey of legislation of identical effect, if it had not already done so, indicates that the New York Legislature never intended article 23-A to apply to the Waterfront Commission. 

The Agesen court held that that "in the instant matter ... there is no showing of any sort that section 220 of the Labor Law was ever intended to apply to the Authority, or any justification, by way of practical construction or otherwise, for the unilateral imposition of such regulation on its internal operations." The court, however, then opined that "[t]he distinction between the internal operations and conduct affecting external relations of the Authority is crucial in charting the areas permitting unilateral and [those] requiring bilateral State action. New York and New Jersey have each undoubted power to regulate the external conduct of the Authority, and it may hardly be gainsaid that the Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public (see 1949 Opinions of the Attorney General, 118-121)."

In addition, the Appellate Division pointed out that courts have repeatedly held that the Port Authority is subject to New York Labor Law with respect to its external conduct, citing  O'Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27; Nolan v Port Auth. of N.Y. & N.J., 162 AD3d 488; Jerez v Tishman Constr. Corp. of N.Y., 118 AD3d 617; Verdon v Port Auth. of N.Y. & N.J., 111 AD3d 580; and Sferrazza v Port Auth. of N.Y. & N.J., 8 AD3d 53.

* 2018 NY Slip Op 31104 [not selected for publication in Official Reports].

** The Waterfront Commission was established by Interstate Compact, approved by Congress, 67 US Stat 541.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_08278.htm

The U.S. First Circuit Court of Appeals limits the reach of Janus in public union representation case

In an article captioned "First Circuit Limits Reach of Janus in Public Union Representation Case," Joseph Fawbush, Esq. notes that:

"Lower courts are now interpreting this decision, and mostly interpreting Janus narrowly. The U.S. First Circuit Court of Appeals, on October 4, distinguished and limited the reach of Janus.

"The unanimous panel held that an economics professor at the University of Maine relied on an improper reading of both state law and Janus when claiming that, as a non-paying employee represented by a labor union with which he disagrees, his First Amendment rights were violated."

The complete text of Mr. Fawbush's article is posted on the Internet at:

https://blogs.findlaw.com/first_circuit/2019/10/first-circuit-limits-reach-of-janus-in-public-union-representation-case.html?DCMP=pro_scotus:nwl:z:2019november

Cost-of-Living Adjustments Limits for 2020

The Internal Revenue Service [IRS] has released the 2020 COLA limits for retirement plans and IRAs indicating the contribution, deferral and compensation limits for 2020.

Another element to review: the IRS posting for the tax year 2020 annual inflation adjustments for more than 60 tax provisions, including tax rate schedules and other tax changes.

As a general rule, where there is a reasonable relationship of a grievance and the general subject matter of the collective bargaining agreement the dispute is arbitrable

This litigation involved a dispute between the City of Yonkers [City], and Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO [Local 628], concerning a paramedic training course funded by a federal Assistance to Firefighters grant the City had offered its firefighters.

After the City denied Local 628's requests for documents related to the paramedic training course, Local 628 filed a grievance asserting that the City violated, among other provisions, Article 33 of the parties' collective bargaining agreement [CBA]. Exhausting its internal grievance remedies, Local 628 demanded arbitration of the dispute.

The City then initiated a proceeding pursuant to Article 75 of the CPLR seeking a court order permanently staying arbitration. Supreme Court granted City's the petition, ruling that the dispute between the parties was not arbitrable because there was no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Local 628 appeal and the Appellate Division reversed the Supreme Court's ruling "on the law."

Citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.-Long Beach Unit, 8 NY3d 465, the court explained that "[a]s a general rule, public policy in this State favors arbitral resolution of public sector labor disputes."

The Appellate Division, however, cautioned that "[a] grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so," citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273]. Further, said the court, in determining whether a grievance is arbitrable, a court must "first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance," and if there is no such prohibition against arbitration, the court must "then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue."

As it was undisputed that there is no statutory, constitutional, or public policy prohibition to the arbitration of Local 628's grievance, the only issue to be addressed by the Appellate Division was whether the City and Local 628 had agreed to arbitrate this particular dispute. Finding that the relevant arbitration provision in the CBA was "broad," providing for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," the Appellate Division opined that a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Absent a finding that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division said the court should rule the matter arbitrable, whereafter "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Local 628 had contended that the City, by offering a paramedic training course to its firefighters, violated Article 33 of the CBA, which contains various provisions concerning the EMS Program, including a provision stating that the "EMS Program shall mean the level of services provided as of the date of this Agreement."

Finding that a reasonable relationship exists between Local 628's grievance and the general subject matter of the CBA, the Appellate Division concluded that resolving "the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, the Appellate Division held that the Supreme Court should have denied the City's petition to permanently stay arbitration and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07776.htm