Typically courts are bound by the arbitrator's factual findings, interpretation of the contract and decision with respect to the remedies provided by the award

The collective bargaining representative  [TCBR] of the teachers of a school district filed a grievance with the school board [Board] on behalf of teachers assigned to certain integrated co-teaching classrooms contending that such assignments increased class sizes in violation of certain provisions set out in the collective bargaining agreement [CBA] between the parties. Ultimately TCBR filed a notice of intent to arbitrate the alleged violations of the CBA and the Board and the TCBR  stipulated that the issue of whether the increased class sizes violated certain Articles in the CBA would be submitted to arbitration.

After conducting a hearing, the arbitrator determined that the increased class sizes violated two of the several Articles in the CBA that TCBR  had alleged the Board had violated. As redress, the arbitrator awarded additional compensation to the affected teachers for the relevant time period. The District then commenced a proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award. Supreme Court denied the Board's petition to vacate the arbitration award and confirmed the award. The Board filed a timely appeal challenging the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision, opining that judicial review of arbitration awards is extremely limited. 

Citing  Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the court explained that an arbitration award may not be vacated unless it shown to violate a strong public policy,  is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power. Further, said the Appellate Division, "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Noting that courts are bound by the arbitrator's factual findings, the arbitrator's interpretation of the contract and the arbitrator's decision with respect to the remedies to be provided an injured party, the Appellate Division observed that "A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." Tthe court pointed out that in New York State Correctional Officers and Police Benevolent Association v State of New York, 94 NY2d 321, the Court of Appeals stated that "courts will not assume the role of overseers to conform the award to their sense of justice."

Agreeing with the Supreme Court's determination that the arbitrator's award was neither irrational nor violative of public policy, nor did the arbitrator exceed a specifically enumerated limitation on his authority, the Appellate Division sustained the Supreme Court's determination denying the Board's  petition to vacate the arbitration award and its confirmation of the arbitrator's award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03909.htm

Eleventh Amendment immunity "extends to state agencies and to state officers who act on behalf of the state"

The complaint [Plaintiff] sued the New York State Department of Labor [NYSDOL]  in federal district court alleging that an employee of NYSDOL unlawfully adjusted her unemployment benefits claim resulting in her having to repay the agency more than $9,000.

Noting that Plaintiff's complaint did not specify a cause of action or any statute pursuant to which she was suing, the United States Court of Appeals, Second Circuit, observed that the federal district court had, sua sponte,* dismissed Plaintiff's complaint as frivolous because NYSDOL was immune from suit under the Eleventh Amendment of the Constitution of the United States. In addition, the district court had denied Plaintiff's motion for leave to amend her complaint on the ground that it would be futile as NYSDOL was immune from lawsuit in federal courts.

Noting the Plaintiff had forfeited any challenge to the district court's rulings that NYSDOL was immune from suit and that amending her complaint would be futile by failing to address these determinations in her brief, the Circuit Court opined that were it to reach the merits of the district court's decision it would conclude that the district court did not err as district courts have the inherent power to sua sponte dismiss a complaint as frivolous, "even where, as here, the plaintiff has paid the filing fee."

Citing its decision in Livingston v. Adirondack Beverage Co., 141 F.3d 434, the Circuit Court of Appeals said that "A complaint is frivolous when "(1) the factual contentions are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory." One example of a claim "based on an indisputably meritless legal theory" offered by the Circuit Court was an action brought against a "defendant [that is] immune from suit."

The Circuit Court said that the district court correctly held that NYSDOL is immune from suit under the Eleventh Amendment, which precludes suits against states and state agencies unless the state expressly waives its immunity or Congress abrogates that immunity and the Eleventh Amendment immunity "extends to state agencies and to state officers who act on behalf of the state."

As Congress has not abrogated New York's immunity against suit in this circumstance nor has New York waived its immunity from suit, the Circuit Court concluded that "the district court did not err in sua sponte dismissing [Plaintiff's] complaint as frivolous" as the NYSDOL is immune from suit brought in federal courts.

* Sua sponte [or suo motu] is an action taken by a court without formal prompting or motion by a party in the action.

The decision is posted on the Internet at: 

https://www.courtlistener.com/opinion/4764763/jordan-v-new-york-state-dept-of-labor/

New York-New Jersey Port Authority held subject to New York State's laws involving health and safety

The New York-New Jersey Port Authority's [Authority] appealed Supreme Court's rejection of its argument that, as a bistate entity created by a federally approved compact, it cannot be held liable under New York State's Whistleblower Laws, Labor Law §§215 and 740. 

Citing Agesen v Catherwood, 26 NY2d 521, the Appellate Division affirmed the Supreme Court's ruling that the Authority is "subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The court explained that the "express purpose of Labor Law §740 is to protect public health and safety" and as it stated in Rosario v Port Auth. of N.Y. and N.J., 179 AD3d 516, "[t]he Compact Clause of the United Stated Constitution is not implicated by the application of such New York workplace safety statutes to [a] Port Authority work site located in New York."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03459.htm

New York State Comptroller issues audits of state departments and agencies

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending July 17, 20200. To access the full report click on the data highlighted in color.

Office of Parks, Recreation and Historic Preservation: Compliance with Navigation Law (2019-S-59) The office has developed and implemented controls to adequately monitor and enforce requirements for safety and quality of life on state waters in accordance with Navigation Law. However, auditors identified several aspects of the office’s oversight that could be strengthened to maximize the efficiency of state marine law enforcement resources and improve its ability to assess boating safety risks and mitigate them.

Department of Health (DOH): Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (Follow-Up) (2020-F-4) An audit issued in December 2018 identified up to $8.7 million in improper payments for Part B deductibles and coinsurance. Auditors determined many of the overpayments occurred because controls were not in place to prevent the payment of coinsurance for non-covered services as well as excessive annual deductibles. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit. However, the Office of the Medicaid Inspector General only recovered about $325,000 of the overpayments identified.

Department of Health: Medicaid Program: Medicaid Overpayments for Medicare Advantage Plan Services (Follow-Up) (2020-F-2) An audit issued in December 2018 identified almost $12.8 million that was paid for services typically covered by recipients’ plans. Many overpayments occurred because adequate controls were not in place to detect the improper claims. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit report; however, additional action is needed. In particular, the Office of the Medicaid Inspector General had yet to take action on approximately $11 million of the identified claims.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 170,000 contracts, billions in state payments and public authority data.

Appointments fill vacancies in Appellate Division of the Supreme Court, First Department of New York State

Governor Andrew M. Cuomo  announced four appointments to fill vacancies in the Appellate Division of the Supreme Court, in the First Department of New York State. The justices selected reflect the diversity, talent and experience present throughout New York's judicial system. "New York State's courts have enormous impact on the laws that shape citizens' day-to-day lives, and their judges should display strong commitments to justice and fairness," Governor Cuomo said. "I am proud to appoint four individuals whose exemplary service qualifies them to serve in the Appellate Division of New York's Supreme Court and wish them well in their work for New Yorkers in Manhattan and the Bronx."

Honorable Saliann Scarpulla

After graduating law school Justice Scarpulla clerked for the Hon. Alvin F. Klein in Supreme Court, New York County. When her clerkship concluded, Justice  Scarpulla  joined  Proskauer Rose Goetz & Mendelsohn as a litigation associate.  Justice Scarpulla later moved to the Federal Deposit Insurance Corporation as Senior Counsel.  From the FDIC Justice Scarpulla became Senior Vice President and Bank Counsel to Hudson United Bank. Justice Scarpulla returned to the New York State court system as Principal Court Attorney to the Hon. Eileen Bransten. She was then elected to the New York City Civil Courtin 2001, appointed to the New York State Supreme Court in 2009, and elected to the Supreme Court in 2012.  Since February 2014, Justice Scarpulla has been sitting in the Supreme Court, New York County Commercial Division.  In 2019 Justice Scarpulla was also appointed to handle all international commercial arbitration matters pending in the New York State Supreme Court. Justice Scarpulla is active in several New York City and statewide bar associations and is a Business Court Representative to the American Bar Association. Justice Scarpulla earned a J.D. from Brooklyn Law School, cum laude.

Honorable Manuel Jacobo Mendez Olivero

Justice Mendez has been a Justice of the Supreme Court, New York State, since his election in 2012 and has been since 2018 the coordinating judge of the New York City Asbestos Litigation (NYCAL).  Prior to his election, Justice Mendez was elected Judge of the Civil Court, New York County in 2003, and had served as a Judge in the Civil Courtfrom 2004 to January 2010.  He presided by Designation in Bronx Criminal Court from 2008 to January 2010, and as an Acting Justice of the Supreme Court, Bronx County from January 2010 to January 2011, and then New York County until his election to Supreme Court in 2012.  Before his election to the Civil Court, Justice Mendez was engaged in the private practice of law as a solo practitioner (Law Office of Manuel J. Mendez, P.C.), from 1999 through 2003, and as a partner in the firm of Kwasink & Mendez, P.C. from 1993 through 1998. He worked as a Senior Staff Attorney at the Legal Aid Society Criminal Defense Division in the Bronx from September 1990 to October 1993. Justice Mendez earned a J.D. from the Universidad Central Del Este School of law in the Dominican Republic.

Honorable Martin Shulman

Justice Shulman was first elected to the New York County Supreme Court in the First Judicial Department in 2005 with his term ending in 2019, and in 2019, was re-elected to the New York County Supreme Court for another 14-year term. At the First Judicial Department, he served as the Presiding Justice in the Appellate Term, a position Chief Administrative Judge Lawrence K. Marks appointed him to in 2018. Justice Shulman first became a Justice of the Appellate Term when Chief Administrative Judge Ann Pfau appointed him in 2009. From 1999 to 2004, he served as an Acting Justice after being appointed by then Chief Administrative Judge Jonathan Lippman. In addition to his time with the New York County Supreme Court, Justice Shulman was also a Judge at New York County's Civil Court from 1995 to 2014. Judge Lippman also appointed Justice Shulman as the Supervising Judge of the New York County Civil Court. Before becoming a Judge, Justice Shulman was an Associate, then Partner, at the real estate litigation firm of Shaw & Binder. Prior to Shaw & Binder, Justice Shulman held numerous positions at the New York State Division of Housing and Community Renewal (Formerly New York City Conciliation and Appeals Board), including Deputy Chief of the Administrative Review Bureau, a Supervising Attorney and a Staff Attorney from 1982 to 1987. He was also a Court Attorney for the Hon. Eugene L. Nardelli from 1981 to 1982. Justice Shulman earned a J.D. from Benjamin N. Cardozo School of Law.

Honorable Tanya R. Kennedy

Justice Kennedy has served as a Justice of the Supreme Court, New York County, since January 2016, after election in November 2015. She was elected to Civil Court in November 2005 and thereafter served in Criminal Court (January 2006-September 2008), Civil Court (September 2008-December 2009), Family Court (January 2010-December 2010), as Acting Supreme Court Justice (January 2011-December 2012) and as Supervising Judge of Civil Court (January 20l4-December 2015). As an Acting Supreme Court Justice, Justice Kennedy presided over an integrated guardianship and landlord-tenant calendar and conducted bench hearings on a daily basis from January 2012 to December 2013. Before her election to Civil Court, Justice Kennedy was principal law clerk to Hon. Barry A. Cozier both while he was an Associate Justice of the Appellate Division, Second Department (March 2001-December 2005) and while he was a Justice in the Commercial Division, New York County (May 1999-March 2001). Before her clerkship with Justice Cozier, Justice Kennedy served in the Office of the Corporation Counsel, New York City Law Department, as an Assistant Corporation Counsel in the Bronx Family Court Division (August 1992-August 1994) and in the Bronx Tort Division (August 1994-August 1997), where she was promoted to Assistant Deputy Chief. Justice Kennedy earned a J.D. from Benjamin N. Cardozo School of Law.

The Judicial Screening Committee for the First Department, Appellate Division reviewed the applications and conducted interviews of dozens of applicants. Only those applicants deemed "highly qualified" by the Committees were submitted to the Governor for his consideration. To be found "highly qualified," candidates must display integrity, independence, leadership, intellect, legal ability, judgment, temperament, and experience.

The Governor's Office will continue to review candidates that successfully advance through the screening process to fill vacancies in the Appellate Divisions of the Supreme Court.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.