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January 17, 2019

Why lawyers should know how to properly redact a document


Why lawyers should know how to properly redact a document
Source: George Khoury, Esq. writing on Technologist, Findlaw's Legal Technology Blog

Mr. Khoury notes that "if you don't know how to properly redact a document, you could end up telling the entire world what you never intended to tell anyone."

His article is posted on the Internet at:


Settlement of a dispute by oral agreement


Settlement of a dispute by oral agreement
Doe v. Kogut, USCA, Second Circuit, Docket #17-1479 [Summary Order]
[N.B.Second Circuit rulings by summary order do not have precedential effect.]

The parties in this action reached a settlement at a conference with a magistrate judge. After reciting the terms of the settlement on the record, the federal magistrate judge asked both parties if they understood and accepted the terms of the settlement and understood that acceptance constituted an oral contract. Both Doe and Kogut affirmed these statements.

Doe, however, subsequently repudiated the settlement, stating that the oral contract was not binding and she had been under duress.

Kogut, on the other hand, moved to enforce the settlement agreement and the court granted Kogut’s motion, reasoning that the oral agreement was binding and that Doe was not under duress at the time of the settlement conference. The Circuit Court sustained this ruling, explaining that “[a] settlement agreement is a contract that is interpreted according to general principles of contract law” and need not be reduced to writing if it is entered into voluntarily on the record in open court.  

In order to determine if the parties intended to be bound by an oral contract, the courts consider four elements:

[1] The absence of a writing;

[2] Whether there has been partial performance of the contract;

[3] Whether all of the terms of the alleged contract have been agreed upon; and

[4] Whether the agreement at issue is the type of contract that is usually committed to writing.

In this appeal the Circuit Court found that [a] the parties did not expressly reserve their rights not to be bound by the oral contract nor did either party object to the magistrate judge's statement of the terms of the settlement; and [b] both Doe and Kogut affirmed that they understood they would be bound by the oral agreement.

Noting that the parties “agreed that the formal settlement documents [would] incorporate the . . . [oral] terms and conditions,” the Circuit Court commented that the magistrate judge expressly stated that any later writing would be merely a memorialization of the material terms discussed at the conference and neither party objected. This factor, said the court, favors enforcement of the contract.

The second factor - partial performance - was affected Doe’s change in counsel. Doe's new attorney subsequently advised the court that he had been fired by Doe and ultimately a third attorney advised the court that he was now Doe’s new attorney. Thus, said the Circuit Court, the fact that Kogut did not ultimately draft a written version of the settlement or tender the agreed upon amount of the agreed upon payment to Doe "does not necessarily show that the parties intended not to be bound by the oral terms," opining that "[a]t best for Doe, this factor is neutral as Kogut’s ability to perform his end of the settlement was impaired as a result of Doe's actions.

The Circuit Court of Appeals found that the district court properly concluded that there were no open material terms as the agreement, as outlined by the magistrate judge, covered monetary compensation, included a mutual non-disparagement clause, and required Doe to withdraw her "family court petition" by a specified date. When asked by the magistrate judge, Doe’s attorney confirmed that no material terms were omitted. Indeed the Circuit Court's ruling states that "the parties considered whether the intervention of [an extra mural element] would affect any of the terms of the agreement and concluded that Doe would be bound [only] as to actions within her control." The court explained that Doe inability to withdraw her petition "does not bear on whether the parties settled all of the terms, but rather on her ability to perform her obligations.'

Turning to the fourth factor, the Circuit Court opined that “[s]ettlements of any claim are generally required to be in writing or, at a minimum, made on the record in open court [and] [t]hat is precisely what happened here -- the parties settled their dispute on the record before the magistrate judge." In the words of the Circuit Court, "... the parties’ settlement was not particularly complex -- Doe released her claims against Kogut and agreed to halt, to the extent  possible, proceedings in criminal and family court in exchange for a monetary payment and a mutual agreed upon non-disparagement agreement. Thus this factor favors enforcement of the oral settlement of the matter.

Because the parties did not reserve their rights not to be bound by the oral settlement, no material term was left open for further negotiation, and as the parties had reached their agreement on the record in open court, three of the four Winston factors favor enforcement of the oral settlement agreement.** The remaining factor was deemed neutral, without impact on any of the material terms of the settlement. 

As to Doe's claim of duress, although a settlement contract or agreement, like any other, may be attacked on the grounds that it was procured by fraud, duress or other unlawful means, Doe offered no evidence supporting her contention she agreed to the terms of the settlement under duress. Further, Doe did not offer any evidence of her attorney’s alleged lack of preparedness that “preclude[ed] the exercise of [her] free will,” and thus the court found this argument insufficient to show duress.

The Circuit Court of appeals held that the oral settlement was valid and the magistrate judge did not err by enforcing the agreement.


* Although this case involved litigating the oral settlement of a marital dispute, it is instructive with respect to the elements that would be considered by courts in resolving disputes involving an oral settlement of a contract grievance, a disciplinary action, a collective bargaining dispute and similar administrative or quasi-judicial proceedings. 

** Winston v. Mediafare Entm’t Corp., 777 F.2d 78

The decision is posted on the Internet at:

January 16, 2019

Failure to file a timely appeal fatal to a party's challenging an arbitration award


Failure to file a timely appeal fatal to a party's challenging an arbitration award
Martin v Department of Educ. of the City of N.Y., 018 NY Slip Op 09018, Appellate Division, First Department

The Appellate Division affirmed the Supreme Court's ruling granting the Department of Education's (DOE) cross-motion to dismiss Lorna Martin's petition seeking to vacate an arbitration award terminating her employment.

Addressing a number of procedural issues, the Appellate Division first explained that Martin failed to commence her CPLR Article 75 proceeding within 10 days of her receipt of the Hearing Officer's decision as mandated by Education Law §3020-a[5][a].

The court, citing Leon v Department of Education of the City of New York, 115 AD3d 435, then opined that Martin did not show that she suffered prejudice as a result of [1] the disciplinary hearing not being completed within 125 days (see Education Law §3020-a[3][c][vii]) or [2] the arbitration award not being issued within 30 days of the last day of the hearing (see Education Law §3020-a[4][a]) due to the arbitrator's failure to meet either, or both, of these deadlines.

Addressing other issues raised by Martin in her appeal, the court found that [1] the Hearing Officer did not abuse his discretion in granting a one-day adjournment at the outset of the hearing nor [2] did Martin establish, "by clear and convincing evidence," that the Hearing Officer was biased.

Further, said the Appellate Division, the award was supported by "adequate evidence," was rational, and was not arbitrary and capricious nor was there any no basis to disturb the Hearing Officer's credibility findings.

In the words of the court, "[u]nder the circumstances presented, the termination of [Martin's] employment does not shock our sense of fairness" notwithstanding "an almost 30-year career with DOE" as the record shows that Martin committed many instances of misconduct, including threatening behavior and insubordination, and "she continued to deny any wrongdoing."

The decision is posted on the Internet at:
_________________

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January 15, 2019

New York State pays drug treatment center nearly $4 million for ineligible expenses


New York State pays drug treatment center nearly $4 million for ineligible expenses
Source: Office of the State Comptroller

A national drug and alcohol treatment provider was able to collect $3.9 million in ineligible payments due to the processing of invalid claims and inadequate oversight by the state Office of Alcoholism and Substance Abuse Services (OASAS), according to an auditreleased on January 13, 2019 by New York State Comptroller Thomas P. DiNapoli.

"Phoenix House is contracted to provide services to New Yorkers who are trying to overcome substance abuse problems, but it requested and received funding it was not entitled to,” said DiNapoli. “Our audit revealed that millions of dollars were claimed and spent on ineligible costs. Officials from the Office of Alcoholism and Substance Abuse Services must recoup this money, which should have been used for cost-effective addiction services to New Yorkers.”

OASAS, which oversees one of the nation’s largest programs for the prevention and treatment of alcohol and substance abuse, signed a five-year $47.6 million contract with Phoenix House New York (PHNY) in 2009 to provide outpatient, inpatient, and residential drug and alcohol addiction treatment services at several facilities in the New York metropolitan area. The state’s contract with PHNY was renewed in 2014 for another five-year term (July 1, 2014through June 30, 2019) at a total cost of $51.4 million.

Auditors examined a three-year period ending June 30, 2016 and determined that PHNY received reimbursement for expenses that did not comply with the contract. This included approximately $2.9 million in unallowable or unsupported parent organization administrative expenses.

For example, PHNY's parent organization periodically allocates its administrative costs to its affiliates throughout the country. When an affiliate in one state did not have the revenue to fund their share of these costs, the parent organization reallocated a portion to PHNY and New York was billed for the other state's share. All told, New York was billed $850,000 for these costs.

In addition, PHNY received reimbursement from OASAS for expenses deemed to be ineligible under the contract. This included:

● Equipment and property depreciation of about $700,000;

● Unsupported employee salaries and raises totaling about $500,000;

● Fundraising costs of about $400,000;

● More than $200,000 paid to the foundation's public policy office and outside lobbyists; and

● Entertainment and party expenses of about $12,700.

DiNapoli recommended OASAS take steps to recoup the $3.9 million from PHNY and take steps to establish better monitoring to ensure that only properly supported claims that are for contractually-approved expenses are approved.

The response from OASAS officials, who requested the audit by OSC, is included in the final report. The audit can be found on the Internet at:


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