The application of the doctrine of governmental immunity in the context of acts of terrorism

The application of the doctrine of governmental immunity in the context of acts of terrorism

Matter of World Trade Ctr. Bombing Litigation, 2011 NY Slip Op 06501, Court of Appeals

In this appeal addressing litigation arising from the 1993 terrorist bombing incident in the parking garage of the World Trade Center complex, the Court of Appeals held that the New York-New Jersey Port Authority is entitled to the protection of "governmental immunity."

The court explained that “…….our precedent dictates that the provision of security for the benefit of a greater populace involving the allocation of police resources constitutes the performance of a governmental function [and] the governmental immunity doctrine requires [the court] to find the Port Authority insulated from tortious liability.”

The court’s rationale: “Our courts simply cannot ignore that this policy-based doctrine is intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities, especially with respect to security measures and the deployment of limited police resources. Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06501.htm

Subpoena Duces Tecum

Subpoena Duces Tecum
Bd. of Educ. v Hankins, 294 A.D.2d 360

From time to time one reads about a case involving the serving of a subpoena duces tecum.

The purpose of a subpoena duces tecum is to compel the production of documents that are relevant and material to facts at issue in a pending judicial or administrative proceeding.

On occasion a hearing officer may be asked to issue a subpoena duces tecum in the course of a disciplinary action. Sometimes an attorney will attempt to obtain such information by serving an "attorney's subpoena" on the employer.

To obtain state documents, however, a judicial subpoena duces tecum -- i.e., a subpoena issued by a court having jurisdiction -- is required if the State entity holding the documents sought by the employee declines to provide them when requested to do so.

Alfred Hankins, a New York City schoolteacher, was served with disciplinary charges pursuant to Section 3020-a of the Education Law. In the course of the disciplinary hearing, Hankins served a subpoena duces tecum on the New York City Board of Education requiring it to produce the names and addresses of certain students. The Board asked Supreme Court to quash the subpoena duces tecum served upon it by Hankins, The court granted the motion to quash.

The Appellate Division affirmed the Supreme Court's decision quashing Hankins' subpoena. The problem here, said the Appellate Division, is that Hankin attempted to use the subpoena duces tecum improperly. Such a subpoena, said the court, "may not be used for purposes of discovery or to ascertain the existence of evidence."

In this instance, said the court, Hankins wanted the subpoena in order "to discover the names, addresses, and telephone numbers of the students in the class on the day or days when his misconduct allegedly occurred." Accordingly, concluded the court, the subpoena was properly quashed by Supreme Court.

Authority of the arbitrator to fashion a remedy

Authority of the arbitrator to fashion a remedy
CCNY v Aiello, 295 A.D.2d 163

In the Aiello case, the significant issue concerned the authority of the arbitrator to fashion a remedy. The Appellate Division said that all limitations on the authority of the arbitrator set out in the collective bargaining agreement had to be observed by the arbitrator.

The case arose after the City University of New York decided not to reappoint Professor Rita Aiello for the 1999-2000 academic year. Aiello filed a grievance in accordance with the collective bargaining agreement. Ultimately the arbitrator ruled in her favor and directed that:

1. City University reappoint Aiello for one academic year if so recommended by a select faculty committee; and

2. All future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division sustained a State Supreme Court decision that vacated that part of the arbitration award directing that all future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division pointed out that although relevant provision of the collective bargaining agreement -- Section 20.5(c)(1) -- authorized the arbitrator to direct that a grievant's reappointment be decided, in effect, by a select faculty committee, "the same section also limits any such substitute decision making to "the action from which the grievance arose."

Here the grievance was triggered solely by University's decision not to reappoint Aiello for the 1999-2000 academic year. Thus, said the court, by directing that any future reappointments of Aiello had to be decided by a select faculty committee, the arbitrator exceeded the authority as set out in Section 20.5(c)(1) of the agreement.

Were this not sufficient, the Appellate Division also commented that the arbitrator had violated another contract provision -- Section 20.6. Section 20.6 provides that the arbitrator may not modify or amend the collective bargaining agreement.

In addition, the decision notes that the fact that there was some "arbitral precedent for an award like that rendered" by the arbitrator in Aiello's case cannot be relied on by her, citing New York City Transit Authority v Patrolmen's Benevolent Association, 129 AD2d 708, appeal dismissed 70 NY2d 719.

Also rejected was Aiello's argument that "the decision-making process resulting in the denial of her reappointment for the academic year 2001-2002 was so tainted as to demonstrate the truth of the arbitrator's forecast that [the University] was incapable of making fair academic judgments in her case." The appropriate course of action, said the court, would be for Aiello to again resort to the contract grievance procedure if she believed she was improperly denied reappointment in the future.