September 30, 2016

The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law

The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law
Prudenti v County of Suffolk, Appellate Division, 2016 NY Slip Op 06203

On September 20, 2011, the then Suffolk County Executive entered into a Memorandum of Agreement [MOA] with the Suffolk County Deputy Sheriffs Police Benevolent Association [DSPBA] pursuant to which DSPBA agreed to defer the payment of approximately $4 million in retroactive pay increases its members that had been awarded to DSPBA members by an arbitration panel for the period January 2008 through December 2010 until December 2015. In exchange, Suffolk County agreed not to transfer any of the DSPBA members' official duties to other law enforcement officers through December 2017. Suffolk and DSPBA also agreed that any disputes concerning the interpretation and, or, implementation of any provision of the MOA could be submitted to arbitration.

Notwithstanding the “no transfer” provision in the MOA, in September 2012, the successor County Executive and the County entered into an agreement with the Suffolk County Police Benevolent Association [PBA] that provided that the County would transfer certain highway patrol and enforcement work previously assigned to DSPBA members to PBA members.

DSPBA filed a demand for arbitration and subsequently commenced a CPLR Article 75 action seeking a preliminary injunction prohibiting Suffolk County from transferring the highway patrol and enforcement work to members of the PBA pending resolution of the arbitration proceeding and, in addition, for a judgment declaring that the MOA is valid and enforceable.

Suffolk County cross-moved to permanently stay the arbitration proceeding contending [1] that no valid agreement to arbitrate the MOA had been made and [2] that the wage deferral provisions of the MOA were invalid because they called for an additional appropriation of funds that had not been approved by the County Legislature.* The Suffolk County Superior Officers Association [SOA] and PBA joined in the motions to stay the arbitration and to dismiss DSPBA’s complaint.

Supreme Court held that the MOA entered into by the former Suffolk County Executive and the DSPBA was valid and enforceable and rejected motions pursuant to CPLR 7503(b) by Suffolk, the PBA, and the SOA to permanently stay arbitration. The court also directed Suffolk County and DSPBA to proceed to arbitration. Suffolk County, PBA and SOA appealed.

The Appellate Division first ruled that, contrary to the contentions of Suffolk County, the PBA, and the SOA, Supreme Court's declaration upholding the validity of the MOA was procedurally proper.

Addressing the merits of the action, the Appellate Division held that Supreme Court correctly determined that the MOA was valid and enforceable as matter of law, regardless of whether the wage deferral provisions required legislative approval pursuant to Civil Service Law §204-a(1), because the County Legislature had ratified those provisions by its conduct.

The court explained that a contract that is not approved by the relevant municipal or governmental body as required by law, rule, or regulation may be ratified by the municipality or government body by its subsequent conduct. In this instance, said the Appellate Division, it was demonstrated “prima facie” that the County Legislature “accepted the benefits of the MOA and partially performed thereunder with knowledge of its terms in a manner clearly referable to the agreement.”

As the County, the SOA, and the PBA failed to raise a triable issue of fact, the Appellate Division said the Supreme Court properly concluded that the County Legislature had ratified the MOA.

* Civil Service Law §204-a.1 requires that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

The decision is posted on the Internet at:

September 29, 2016

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”
Ruderman v City of New York, 2016 NY Slip Op 06148, Appellate Division, First Department

An order of Supreme Court granting the motion of the City of New Yorkto dismiss Irving Ruderman complaint alleging “retaliation” was unanimously affirmed by the Appellate Division, which noted that although the Supreme Court’s order did not expressly address Ruderman’s retaliation claim, it unambiguously granted New York City’s motion to dismiss in its entirety.

In order to establish a prima facie case of retaliation, the individual is required to show that:

(1) he or she had engaged in protected activity,

(2) his or her employer was aware that he or she participated in such activity,

(3) he or she suffered an adverse employment action based upon his or her activity, and

(4) there is "a causal connection between the protected activity and the adverse [personnel] action" alleged to have suffered by the individual.

The Appellate Division explained Ruderman’s retaliation claims brought pursuant to Federal and State Civil Rights Law and under the New York City Human Rights Law was properly dismissed by Supreme Court because Ruderman's complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to him was rescinded because of his inquiry he had sent to the Equal Employment Opportunity Commission [EEOC].

The court noted that there was no dispute that the job offer made to Ruderman was re-confirmed “even after City of New York employees were aware of the inquiry” Ruderman had submitted to EEOC.

Nor, said the Appellate Division, was there any dispute that Ruderman failed to complete the required routine paperwork related to his employment. Indeed, said the court, Ruderman was advised that his failure to complete this paperwork might result in his not being appointed to the position that was offered. Notwithstanding this warning, Ruderman did not complete the paperwork.

With respect to Ruderman's allegations of unlawful retaliation, the Appellate Division ruled that he failed to allege facts sufficient to demonstrate any causal connection between his not being appointed to the position and his having made an “EEOC inquiry.” 

In addition, said the court, the reason given by the City for rescinding its job offer -- Ruderman's failure to complete the required paperwork -- did not constitute a pretext for unlawful retaliation in violation of the relevant Federal, State or City discrimination laws.

As the United States Court of Appeals for the 5thCircuit held in Wallace v Methodist Hospital System, 271 F.3d 212, where the employer has presented a lawful reason to rebut an individual’s prima facie evidence of unlawful discrimination, the burden shifts to the charging party to “present facts to rebut each and every legitimate non-discriminatory reason advanced by [the employer] in order to survive [a motion for] summary judgment” submitted to the court by the employer. Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

The decision is posted on the Internet at:

September 28, 2016

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty
2016 NY Slip Op 06184, Appellate Division, First Department

The Appellate Division reversed, on the law, Supreme Court’s denial of an CPLR Article 75 petition filed by a teacher seeking an order vacating that part of an arbitration award that terminated his employment as a tenured teacher. The matter was then remanded to the appointing authority for the imposition of a lesser penalty.

The evidence presented at the disciplinary arbitration hearing established that the teacher, an eighth-grade physical education teacher, had initiated conversations with at least two of his female students asking them "if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them" and accepted the phone number of one student's 23 year-old sister.

One student had testified that the teacher’s conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her.

Of the 12 specifications filed against the teacher, the Hearing Officer dismissed five. Finding the teacher guilty of the seven remaining specifications, including an allegation that he had engaged in similar behavior in a previous school year, the hearing officer said that he had found the teacher “to be insufficiently remorseful, that his actions revealed ‘moral failings,’ and that, although termination might be ‘too severe,’ it was the only penalty that could ‘jolt’ [the teacher] into an understanding of the seriousness of his misconduct.”

In view of “all the circumstances of the case, including the lack of any prior allegations of misconduct [filed] against the teacher during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation,” the Appellate Division said that it found the penalty imposed, termination, sufficiently “disproportionate to the offenses to shock the conscience” of the court.

Further, said the court, the teacher had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, “there is no evidence that a warning or reprimand or other penalty short of termination would not have caused [the teacher] to cease the objectionable conduct immediately.”

The Appellate Division panel adjudicating this appeal, Justice Tom dissenting, said although it shared some of Justice Tom’s concern regarding the teacher’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, it did not agree that the law supports imposing the penalty of termination “at this time.”

The court noted that the Hearing Officer found only that the teacher had made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." Further, said the majority, the Hearing Officer did not find that the teacher actually intended to, or did, have any “romantic/sexual interactions” with anyone nor was there any evidence that the teacher “had made any sexual comments to his students.”

In the words of the majority, the teacher “showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education,” explaining that its decision does not excuse the teacher’s behavior but merely directs imposing “a less serious punishment.”

However, warned the majority, should such behavior continue, termination of the teacher “may well be in order in the future.”

The decision is posted on the Internet at:


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September 27, 2016

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the appropriate procedure go be followed when filing disciplinary charges against a police officer of a town
Town of Goshen v Town of Goshen Police Benevolent Assn., 2016 NY Slip Op 06090, Appellate Division, Second Department

§155 of the Town Law provides that charges brought against members of a police department that are subject to procedures prescribed by a town board "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Subject to certain exceptions not here relevant, §75.4 of the Civil Service Law provides that disciplinary charges brought against an employee must be brought within 18-month of the occurrence of the alleged act or acts of incompetence or misconduct.

A Town of Goshen police officer was served with disciplinary charges pursuant to Local Law No. 1 of 2013 of the Town of Goshen. Local Law No. 1 had been enacted by the Town Board pursuant to the authority granted to it by Town Law §155.  

Significantly, the record established "that the disciplinary proceeding was untimely commenced more than 60 days after the Town Board learned the facts upon which the disciplinary charges were based."

Town of Goshen Police Benevolent Association [PBA] brought a hybrid proceeding pursuant to CPLR Article 75 seeking a court order declaring that the disciplinary charges against the police officer were time-barred as they were brought pursuant to Town Law §155 more than 60 after the alleged acts of misconduct were know to the Board.

The Town, on the other hand, contended that the disciplinary action had timely served within the  longer 18-month statute of limitations prescribed by Civil Service Law §75.4 “incorporated in the collective bargaining agreement” between the Town and the PBA.* The Town argued that the contract procedure controlled and the disciplinary charges had been timely served on the police officer as authorized by §75.4 of the Civil Service Law.

Supreme Court** agreed with the PBA that the disciplinary charges filed against the police officer were untimely as the statute of limitations set out in the Town Law rather than the Civil Service Law controlled and granted the PBA’s petition.

The Appellate Division affirmed the lower court's ruling, explaining that contrary to the Town’s claim that the statute of limitations set by §75.4 controlled, by enacting Local Law No. 1 the Town Board "affirmed that the subject of police discipline resides with it" and as a result "discipline" was a prohibited subject of collective bargaining between the Town and the PBA. In other words, the provisions dealing with disciplinary action set out in the collective bargaining agreement negotiated pursuant to the Taylor Law were a nullity.

In Town of Wallkill v CSEA, Town of Wallkill Police Department, 19 NY3d 1066, the Court of Appeals said that the discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." Accordingly, the Town of Wallkill's local law made police discipline subject to the Board's procedures and the mandates of Town Law §155 rather than the disciplinary procedures set out in a collective bargaining with respect to initiating and prosecuting a disciplinary action against a Town of Wallkill police officer.

* §76 of the Civil Service Law provides that §§75 and 76 of such law “may be supplemented,  modified or replaced by agreements negotiated between the state  and  an   employee  organization  pursuant  to  Article  14 of this chapter.”

** A summary of the Supreme Court’s decision is posted on the Internet at:

The Appellate Division’s decision is posted on the Internet at:

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September 26, 2016

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true
Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, Appellate Division, Second Department

Constance Kaplan was serving with the New York City Department of Health and Mental Hygiene [HMH] as a temporary worker. She alleged that after notifying HMH that she had been sexually harassed by her supervisor during a training session and intended to sue under the relevant human rights laws she was terminated from her position. She also alleged that her dismissal constituted reprisal for taking action to seek redress for the supervisor’s alleged sexual harassment.

Supreme Court granted HMH’s motion to dismiss Kaplan's petition alleging sexual harassment pursuant to New York City’s Human Rights Law “for failing to state a cause of action." The court granted HLMH's motion after determining that Kaplan's failed to show that the behavior of her supervisor "constituted more than a petty slight or trivial inconvenience"

The Appellate Division disagreed with Supreme Court’s ruling and said that the lower court should have given Kaplan’s complaint a liberal construction and accepted all facts alleged in the complaint to be true. Further, said the court, a contention that the behavior being complained of “was a petty slight or trivial inconvenience” constituted an affirmative defense, which should be raised in HMH’s answer, and did not lend itself to a pre-answer motion to dismiss. 

A motion to dismiss, said the Appellate Division, “merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action.”

The Appellate Division also found that Supreme Court erred in dismissing Kaplan’s cause of action alleging retaliation within the meaning of both the State’s and the City’s human rights laws. 

Kaplan had alleged in her complaint that her employment was terminated approximately two weeks after she informed HMH of her claims of sexual harassment and advised it of her intent to sue. Viewed in the light most favorable to Kaplan, the Appellate Division concluded that these allegations stated a cause of action alleging retaliation within the meaning of the State’s Human Rights Law and New York City’s Human Rights Law, the latter being "more liberal that its state counterpart.”

HMH had also submitted several emails in support of its motion to dismiss which it contended established that Kaplan was not discharged from her employment. 

The Appellate Division said that the emails submitted by HMH did not establish that Kaplan’s allegation that she was discharged from her employment “is not a fact.” Again the Appellate Division found that “Supreme Court erred in determining that emails from [Kaplan] and her temporary employment agency constituted party admissions and were admissible under an exception to the hearsay rule,” as the emails HMH relied upon were not inconsistent with Kaplan’s position that she was terminated from her employment.

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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