Willful failure to comply with a “discovery order” assumes an ability to comply

Willful failure to comply with a “discovery order” assumes an ability to comply
2012 NY Slip Op 03786, Appellate Division, First Department

One of the issues considered by the Appellate Division in this phase of this litigation was Supreme Court’s denial of a motion to “strike” the New York City Department of Education’s [DOE] answer based on the petitioner’s allegation that DOE had “failed to disclose” certain records she had demanded in the course of discovery.

The Appellate Division unanimously affirmed the Supreme Court’s ruling, explaining the petitioner had failed to "show conclusively that [the DOE’s] failure to disclose was willful, contumacious or due to bad faith."

The court noted that DOE was not in possession of certain records demanded that had been prepared by a former employee nor could DOE control whether the former employee “contacts them.”

In such cases the Appellate Division said the test as to a party's “willful failure to comply with a discovery order” assumes an ability to comply with such an order and the party's decision not to comply with such an order. However, a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.

The court concluded that DOE had satisfied the test of “impossibility” insofar as these particular records were concerned.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department

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The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04103.htm

Transfer of exclusive bargaining unit work to another bargaining unit

Transfer of exclusive bargaining unit work to another bargaining unit

Selected Rulings posted by PERB  – Matter of the City of New Rochelle, Decision U-26722

The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge.

The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement