Commissioner of Education sustains actions taken by a Board of Education in making its decision to close one of the school district's schools

Initially addressing a procedural matter -- the School Board's seeking to have the Commissioner dismiss Petitioner's appeal "for lack of standing", the Commissioner observed "Only an individual who is directly affected by an action has standing to commence an appeal therefrom". Finding that Petitioner was directly affected by the School Board's plan to close the particular school in question, ruled that Petitioner had standing to submit the instant appeal to the Commissioner of Education and declined to dismiss it.

Turning to the merits of Petitioner's appeal, the Commissioner noted a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein, citing Matter of Older v Board of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333, and a school board's decision or decisions concerning school district reorganization and the closing of school facilities "will only be set aside if they lack a rational basis". 

Further, said the Commissioner, "In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief," citing NYCRR 275.10 and Decisions of the Commissioner of Education Numbers 17,337; 15,936; and 15,884.

The Commissioner found that Petitioners failed to met their burden of proving that the School Board had violated board policy nor did Petitions prove that the School Board "acted arbitrarily or capriciously" in connection with the closure of the school building in question, noting the record indicated the School Board's:

1. Reconfiguration of the school district was intended to equalize class sizes among schools;

2. Effective implement services for students with disabilities;

3. Alleviated the strain of declining enrollment in the district; and

4. Conducted a "myriad of meetings and events to explore the reconfiguration issue with the community over several years."

Although the School Board "permissibly selected a plan that differed from the one favored by a majority of taxpayers", and "[school] board members can and should be receptive to community concerns," the Commissioner opined that they are public officers who “take [] an oath of office to uphold the law and faithfully discharge [their] duties”.

In the words of the Commissioner, the members of the School Board "met those obligations by conducting extensive studies and engaging in community involvement to arrive at a reasonable decision.  Thus, its ultimate vote to close [the school at issue] cannot be characterized as unexpected — or irrational."

Click HERE to access the decision of the Commissioner posted on the Internet. 

Appellate Division confirms arbitrator's interpretation of an emergency leave provision set out in a collective bargaining agreement challenged by the employer

In this proceeding pursuant to CPLR Article 75, the Utica Professsional Fire Fighters' Association [Association] appealed Supreme Court's order denying, in part, the Association's petition seeking to confirm an arbitration award sustaining a grievance the Association filed on behalf of two firefighters in the collective bargaining unit concerning Utica's handling of requests for emergency leave under the parties' CBA. 

The two firefighters, while off duty, requested emergency leave to attend to family emergencies. Although both firefighter learned of the emergency while off duty, both were scheduled to report for duty the following day. Although both firefighter were excused from their respective next day's tour of duty, Utica charged the missed time against the respective firefighter's compensatory time, rather than treating it as paid emergency leave, inasmuch as the requests were not made during the firefighter's tour of duty.

The emergency leave provision of the Collective Bargaining Agreement [CBA] provided that "[e]mergency leave shall be granted during a member's tour of duty in the event of an unexpected serious illness of his wife, child, father, mother, brother, sister, mother-in-law, or father-in-law. The member shall make every effort to return to duty as soon as possible." A separate provision of the CBA provides that, where a grievance is settled by arbitration, the decision of the arbitrator "shall be final, conclusive and binding upon all parties" and "the arbitrator shall be strictly limited to the application and interpretation of the specific provision of the [CBA] and may not add to, modify or otherwise deviate from those provisions."

The arbitrator concluded that nothing in the language of the emergency leave provision required that the emergency leave request be made during the member's tour of duty, interpreting relevant CBA provision "during a member's tour of duty" was meant to allow the member to leave or miss work to attend to a family emergency, and the phrase thus addressed the period of time when the leave must be taken, not when the request must be made. Accordingly, the arbitrator determined that the firefighters were entitled to paid emergency leave for the time in question and directed Utica to restore the charged compensatory time.

Supreme Court denied the Association's petition to confirm the arbitration award the extent that it sought to confirm the arbitrator's determination that the two firefighters were entitled to paid emergency leave, holding that the arbitrator's "grant of an emergency leave request that was made prior to a firefighter's tour of duty added a new clause or term to the CBA in violation of the limits placed on the arbitrator's authority in the CBA". The Association appealed the Supreme Court's ruling.

The Appellate Division, reversing Supreme Court's decision and confirming the award, noted that "[J]udicial review of arbitration awards is extremely limited". Observing that "The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA", the Appellate Division, citing  AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, explained that courts lack the authority to "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". Here, opined the Appellate Division, "the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do", and courts are powerless to set aside that interpretation even if we disagree with it.

Confirming the arbitration award, the Appellate Division held that the arbitrator's determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination.

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

Governor Hochul declared Tuesday, October 8 as Firefighter Appreciation Day and October 7-11 as Fire Prevention Week in New York State

On October 8, 2024, Governor Kathy Hochul honored 32 fallen firefighters at the 27th Annual New York State Fallen Firefighters Memorial Ceremony held at the Empire State Convention Center in Albany. The Memorial honors 2,692 New York’s firefighters who lost their lives in the line of duty, paying tribute to them as well as thousands of firefighters across New York State who continue to serve and protect their communities. 

“Let us take a moment to remember the 32 courageous firefighters whose lives were dedicated to protecting others. Their names, now forever honored on the Memorial Wall, symbolize the bravery and sacrifice that define our firefighting community," Governor Hochul said. “As we celebrate Firefighter Appreciation Day and Fire Prevention Week, let us not only express our gratitude but also commit ourselves to fire safety and the well-being of those who risk everything for us. Together, we uphold the legacy of these heroes and the values they instill in us all.” 

“Our firefighters embody the definition of what it means to selflessly serve one's community, and today, we remember those we lost fulfilling that service," said  Lieutenant Governor Antonio Delgado. “These men and women are heroes who rose to meet challenges that most of us can scarcely imagine, and we owe them a debt of gratitude we will never be able to repay to those they have left behind. Today, we mourn alongside their families, friends, and colleagues as we salute their courage.”

The names of Firefighters to be added to Memorial Wall at the Empire State Plaza this year include:

 

NAME	FIRE DEPARTMENT
Thomas W. Anderson Jr.	Fire Department of the City of New York
Rev. Msgr. John E. Delendick	Fire Department of the City of New York
James A. Drohan Sr.	Ossining Fire Department
Russell Feliciano	Fire Department of the City of New York
Albert A. Filosa	Fire Department of the City of New York
John P. Fogarty	Fire Department of the City of New York
Niel G. Frazier Jr.	Ellington Volunteer Fire Department, Inc.
Frederick H. Gallagher	Fire Department of the City of New York
Joseph P. Giordano	Freeport Fire Department
Wayne T. Goehring	Fire Department of the City of New York
Andrew J. Hornbuckle	Fire Department of the City of New York
Edward V. Hronec	Fire Department of the City of New York
Stewart G. Hunt	Ancram Fire Department
Robert J. Kelly	Fire Department of the City of New York
Lamont Killian Jr.	Mount Vernon Fire Department
Scott E. LaFlesh	Plattsburgh Fire Department
Arthur S. Lakiotes	Fire Department of the City of New York
James C. Mager	Fire Department of the City of New York
Anthony Malfi	Fire Department of the City of New York
Vincent J. Mandala	Fire Department of the City of New York
George P. Matthias	Greenport Fire Department
Thomas J. McDougall	Fire Department of the City of New York
Brian E. O’Flaherty	Fire Department of the City of New York
Jeffrey S. Pells	Arlington Fire District
Philip A. Pinto Jr.	Eastchester Fire District
James T. Redmond	Fire Department of the City of New York
Karl J. Sederholt	Fire Department of the City of New York
Lloyd W. Stuart	Fire Department of the City of New York
John E. Veteri Sr.	Larchmont Fire Department
Michael Verzi	Fire Department of the City of New York
Christopher P. Viviano	Fire Department of the City of New York
Israel J. Vosseller	New Haven Volunteer Fire Department

Governor Hochul also today issued two proclamations to honor the state’s career and volunteer firefighters, marking Oct. 8, 2024 as Firefighter Appreciation Day, and the week of Oct. 7-11, 2024 as Fire Prevention Week. The New York State Office of Fire Prevention and Control works with local fire departments, fire service organizations, school districts, civic groups, and the National Fire Protection Association to provide the public with information and programs about the importance of fire safety awareness.

Division of Homeland Security and Emergency Services Commissioner Jackie Bray said, “We honor our fallen firefighters on this day and recognize their courage and the ultimate sacrifice they made to keep others safe. We will always be grateful for their dedication and bravery. We thank them for their service and grieve their loss with their families and loved ones.”

State Fire Administrator James Cable said, “Those honored today include both career and volunteer members from across the State. Illnesses directly related to the response and recovery efforts at the World Trade Center site after the attacks of September 11, 2001 continue to take their toll. We also gather to acknowledge and recognize the families, friends, and fellow firefighters of those who we are honoring today. Their loved one’s service required they too serve and sacrifice, and we offer our support and sympathy for their loss.”

About the State Office of Fire Prevention and Control - The Office of Fire Prevention and Control delivers a wide breadth of essential services to firefighters, emergency responders, state and local government agencies, public and private colleges, and the citizens of New York to help ensure the safety of all stakeholders. The office advances public safety through firefighter training, education, fire prevention, investigative, special operations, and technical rescue programs. 

About the Division of Homeland Security and Emergency Services - The Division of Homeland Security and Emergency Services provides leadership, coordination, and support to prevent, protect against, prepare for, respond to, recover from, and mitigate disasters and other emergencies. For more information, follow @NYSDHSES on Facebook, Instagram, and X (formerly known as Twitter) or visit dhses.ny.gov.

Supreme Court denies defendant's motion seeking to disqualify plaintiff's attorney from representing the plaintiff

Defendant, individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, moved to disqualify Plaintiff's attorneys from further representation of Plaintiff in the underlying action on the ground that "they were interested witnesses whose testimony would be necessary and relevant to the action."

Supreme Court denied Defendant's motion, whereupon Defendant appealed Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

In the words of the Appellate Division: "We conclude that [Defendant] failed to meet his "burden of making 'a clear showing that disqualification is warranted' ", citing  Lake v Kaleida Health, 60 AD3d 1469 and S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437" and "Supreme Court thus did not abuse its discretion in denying the motion (see generally HoganWillig, PLLC v Swormville Fire Co., Inc., 210 AD3d 1369)."

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

Challenging an arbitration award pursuant to Article 75 of New York State's Civil Practice Law and Rules [CPLR]

In this Civil Practice Law and Rules [CPLR] Article 75 proceeding the Buffalo Teachers' Federation [Petitioner] appealed a Supreme Court's order and judgment denying the Federation's CPLR Article 75  petition seeking to vacate an arbitration award. 

The Appellate Division's decision affirming the Supreme Court's ruling is set out below:

Matter of Buffalo Teachers' Fedn. (Board of Educ. of the Buffalo City Sch. Dist.)

2024 NY Slip Op 04868

Decided on October 4, 2024

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 4, 2024 

SUPREME COURT OF THE STATE OF NEW YORK 

Appellate Division, Fourth Judicial Department

PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND DELCONTE, JJ.

590 CA 23-01595

IN THE MATTER OF ARBITRATION BETWEEN BUFFALO TEACHERS' FEDERATION, PETITIONER-APPELLANT, AND BOARD OF EDUCATION OF THE BUFFALO CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT.

ROBERT T. REILLY, GENERAL COUNSEL, NEW YORK STATE UNITED TEACHERS, LATHAM (JOSE L. MANJARREZ OF COUNSEL), FOR PETITIONER-APPELLANT.

CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Gerald J. Greenan, III, J.), entered August 10, 2023, in a proceeding pursuant to CPLR article 75. The order and judgment denied the petition seeking to vacate an arbitration award and confirmed the award.

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: In this CPLR article 75 proceeding, petitioner appeals from an order and judgment that denied petitioner's petition seeking to vacate an arbitration award and confirmed the award. We affirm.

"It is well settled that judicial review of arbitration awards is extremely limited" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]; see Matter of Syracuse Firefighters Assn., Local 280, IAFF, AFL-CIO, CLC [City of Syracuse], 213 AD3d 1249, 1249 [4th Dept 2023]). As relevant here, "CPLR 7511 (b) (1) (iii) permits vacatur of an award where . . . the arbitrator exceeds [their] power" (Matter of Gerber v Goldberg Segalla LLP, 199 AD3d 1354, 1355 [4th Dept 2021]). "An arbitrator exceeds [their] power . . . where [their] award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Barone v Haskins, 193 AD3d 1388, 1390 [4th Dept 2021], lv denied 37 NY3d 919 [2022], appeal dismissed 37 NY3d 1032 [2021]; see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]), such as "a limitation on [the arbitrator's] power as set forth in [a collective bargaining agreement]" (Matter of Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO [City of Lackawanna], 156 AD3d 1406, 1407 [4th Dept 2017]). "Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact' " (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 91 [2010], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 83 [2003]). As the Court of Appeals has explained, "[c]ourts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. 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. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). "The party seeking to vacate an arbitration award thus bears a heavy burden to establish that the arbitrator exceeded their power" (Matter of Buffalo Teachers' Fedn. [Board of Educ. of Buffalo City Sch. Dist.], 227 AD3d 1435, 1436 [4th Dept 2024]; see Matter of Asset Protection & Sec. Servs., LP v Service Empls. Intl. Union, Local 200 United, 19 NY3d 1009, 1011 [2012]).

Here, contrary to petitioner's assertion, the arbitrator merely interpreted and applied the limitation contained within the relevant collective bargaining agreement (CBA) prohibiting arbitration of the grievance filed by petitioner, as he had the authority to do (see Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408). We are powerless to set aside that interpretation even if we disagree with it (see id.). In any event, we conclude that the plain language of the CBA supports the arbitrator's interpretation.

Entered: October 4, 2024

Ann Dillon Flynn

Clerk of the Court