Emoji evidence is more than a thing

Emoji evidence is more than a thing

By William Vogeler, Esq. 

Mr. Vogeler's article is posted on the Internet at: https://blogs.findlaw.com/strategist/2019/02/emoji-evidence-is-more-than-a-thing.html?DCMP=cons_top:nwl

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

Baff v Board of Educ. of The Fonda-Fultonville Cent. Sch. Dist., 2019 NY Slip Op 01476, Appellate Division, Third Department

Certain retired teachers [Plaintiffs], previously employed by Fonda-Fultonville Central School District, were  members of Fonda-Fultonville Teachers' Association. Between 1976 and 2013 the District and the Association, here collectively the "Defendants", had entered into various collective bargaining agreements [CBAs] that set forth terms and conditions of employment including, among other things, retiree health insurance coverage and benefits. 

The relevant provisions in the several CBAs provided that Plaintiffs' health insurance benefits would be continue in retirement "on the same basis as they have in the past." In 2013, however, Defendants changed Plaintiffs' health insurance coverage and benefits, resulting in, among things, increased costs and expenses and changes in coverages. Plaintiffs commenced a combined CPLR Article 78 proceeding and declaratory judgment action seeking, among other things, a court order declaring that they were entitled to a continuation of the same health insurance benefits that they had been receiving at the time they retired.

Supreme Court dismissed a number of Plaintiffs' causes of action and only the declaratory judgment and breach of contract causes of action survived. Plaintiffs and Defendants, respectively, moved for summary judgment on these causes of action. Supreme Court denied both Plaintiffs' motion and Defendants' cross motion for summary judgment and they, respectively, appealed and cross-appealed* the court's rulings.

As framed by the Appellate Division, the dispute here centered on the phrase, "on the same basis as they have in the past." Opining that the phrase was "susceptible of different constructions and capable of being understood in more than one sense," and thus it could be viewed as ambiguous, the Appellate Division concluded that it was "a threshold question to be resolved by the court."  Accordingly, said the court, "Supreme Court correctly resorted to parol evidence**to resolve the phrase's ambiguity."

Plaintiffs had submitted affidavits attesting "it was understood" that the Defendants would continue to provide the same health insurance benefits that employees had been receiving when they retired until their deaths. Plaintiffs involved in the collective bargaining process also represented that in the course of negotiations [1] "it was understood that the health insurance benefits for retirees would not be limited in any way" and [2] such benefits would "continue for the retirees' respective lifetimes." Further, one of these Plaintiffs stated that "when there was a switch in health providers, such change applied only to current teachers and not to retirees."

On the other hand, a former school superintendent who was involved in the negotiations of the CBAs and a business administrator for the district each submitted affidavits indicating that that [1] the phrase in dispute meant that "the percentage that each plaintiff contributed during his or her last year of teaching would be the same throughout retirement" and [2] that the district was not precluded from changing health plans. The business administrator also stated that there was a prior change resulting in an increased deductible for Plaintiffs and that Plaintiffs had not then objected to that change.

In consideration of these different contentions, the Appellate Division concluded that the record discloses a triable issue of fact as to the parties' intentions regarding Plaintiffs' health insurance coverage during retirement and that Supreme Court's denial of Plaintiffs' motion for summary judgment was proper.

* The Appellate Division noted that although Defendants indicated it was withdrawing its cross motion, the necessary steps had not been taken to formally do so.

** The rule against the use of parol evidence typically prevents the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or differ from the contractual terms of a written contract. The Appellate Division held that Supreme Court was correct in not applying the rule in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01476.htm

Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action

Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action

Stack v City of Glens Falls, 2019 NY Slip Op 01286, Appellate Division, Third Department

The City of Glens Falls [City] served disciplinary charges upon one of its employees [Appellant]. The hearing officer had found Appellant guilty of two disciplinary charges and recommended termination as the penalty to be imposed. 

At a special meeting on October 3, 2016, the City's Common Council adopted the hearing officer's findings and imposed the recommended penalty of termination on Appellant. Subsequently a letter was sent to Appellant by the City's Mayor on October 11, 2016 reporting the Common Council's action. When Appellant filed an Article 78 petition in Supreme Court challenging the City's determination on February 10, 2017, the City moved to dismiss Appellant's petition as time barred.* Supreme Court grant the City' motion and Appellant appealed the ruling to the Appellate Division.

The Appellate Division reversed the lower court's ruling. Noting that a special proceeding such as the one brought by Appellant "must be commenced within four months after the determination to be reviewed becomes final and binding in its impact upon a petitioner", the court explained that the party asserting the statute of limitations defense must establish that clear notice of the determination was given to the petitioner "more than four months prior to" the commencement of his or her Article 78 proceeding. Further, any ambiguity in the communications claimed have constituted such notice "must be resolved in favor of the petitioner."

The Appellate Division's decision states in this instance neither the Appellant, who had been suspended without pay pending the outcome of the disciplinary proceedings, nor Appellant's attorney, received any notification of the City's determination. After learning from a newspaper reporter that the Common Council had held a special meeting on October 3, 2016 to consider the hearing officer's report and recommendation regarding the disciplinary action taken against Appellant, Appellant's attorney demanded to know Appellant's status. The City provided a newspaper article that described the determination and quoted Appellant's counsel as promising legal action.

In the words of the Appellate Division, "the confusion of [Appellant] and her counsel is evident in their emails during this period, with [Appellant] noting on October 7, 2016 the 'odd' absence of any 'word from City Hall about [her] status' and [her] counsel complaining to [the City Attorney] on October 11, 2016 that the City had still not provided 'any notification' of the determination and demanding to know [Appellant's] status." Appellant, in an affidavit, stated that "she was befuddled by [the City's] silence and did not realize that she had been terminated as of October 3, 2016 until she received the October 11, 2016 letter" from the Mayor.

The Appellate Division ruled that Appellant did not receive an "unambiguous" and "certain" final determination that would trigger the running of the statute of limitations for perfecting the filing of a CPLR Article 78 action until October 11, 2016. Accordingly, the Appellate Division said that what has been demonstrated is "uncertainty caused by [the City's] inaction that must be resolved against [the City]."

Finding that Appellant commenced this proceeding less than four months after receiving clear notice of the City's determination as reflected in the Mayor's letter dated October 11, 2016, the Appellate Division held that Appellant's Article 78 action was timely filed. Reversing the Supreme Court's decision on the law, the matter was remitted to the lower court to permit the City to serve an answer on Appellant within 20 days of the date of the Appellate Division's decision.

* As a general rule a statute of limitations for bringing a timely action begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01286.htm

Some procedural consideration relevant to efforts to vacate an arbitration award

Some procedural consideration relevant to efforts to vacate an arbitration award

Yates v County of Nassau, 2019 NY Slip Op 01219, Appellate Division, Second Department

The employee [Respondent] in this action was terminated from his position with the County of Nassau [Nassau]. He filed a grievance challenged his dismissal pursuant to a collective bargaining agreement between Appellant and the Civil Service Employees Association and the matter proceeded to arbitration. The arbitrator [1] issued an "opinion and award" in 2013 and [2] about a year later issued a "final award" and [3] ultimately issued a "consent award" dated July 15, 2015.

In February 2017 Respondent initiated this CPLR Article 75 proceeding in an effort to vacate the final award and to "reopen" the 2013 opinion and award.* Nassau moved to dismiss Respondent's Article 75 petition, arguing that the proceeding was time-barred. The Supreme Court denied Respondent's petition, dismissing the proceeding as time-barred. Supreme Court, however then confirmed the "awards of the arbitrator" and Nassau appealed from so much of the Supreme Court's order as confirmed the three arbitration awards.

The Appellate Division said that the Supreme Court, after denying the petition and dismissing the proceeding as time-barred, should not have confirmed the three awards.

The court pointed out that:

1. Neither the Respondent nor Nassaucommenced a proceeding or moved to confirm any of the three awards;

2. Although CPLR 7511(e) provides, in relevant part, that "upon the denial of a motion to vacate or modify, [the court] shall confirm the award," this directive applies only where a party has filed an application to vacate or to modify an arbitration award and such action has been denied on the merits; and

3. Where the proceeding has been found to be time-barred, a court has no discretion to address the merits of the matter as to do so would have the practical effect of impermissibly extending the statutory time limitations set out in CPLR Article 75.

Finally, observed the Appellate Division, "to automatically confirm the three awards, when the proceeding to vacate/modify two of the awards is time-barred and there has been no application to confirm any of the awards, deprived  Nassau of an opportunity to object to confirmation."

* Respondent did not seek any relief from the 2015 consent award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01219.htm

A judge's vote in an unannounced opinion held not to survive his or her death

A judge's vote in an unannounced opinion held not to survive his or her death

Rizo v Yovino, 586 U. S. ____ (2019) [No. 18–272. Decided February 25, 2019]

Chief Judge of the United States Court Appeals for the Ninth Circuit Stephen Reinhardt wrote the court's en banc opinion in Rizo v Yovino. 

Judge Reinhardt, however, died on March 29, 2018 while the court's decision in the matter was not announced until April 9, 2018. A posthumous footnote in the opinion notes that "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

By counting Judge Reinhardt’s vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, thereby constituting a precedent that all future Ninth Circuit panels must follow.

The U.S. Supreme Court vacated the ruling, holding that should a judge vote and then die before the decision is announced, his or her vote with respect to the decision "does not count," explaining that a judge may change his or her position up to the moment when a decision is released.

Noting that "[w]ithout Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed," the Supreme Court ruled that:

1. "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority; and

2. "That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death; and

3. "... federal judges are appointed for life, not for eternity."

The court granted the then pending petition for certiorari, vacated the Ninth Circuit's decision in Rizo v Yovino and remand the case "for further proceedings consistent with this opinion."  

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf