Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention

The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception. 

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.

Health insurance benefits set out in collective bargaining agreement found to have survived expiration of agreement and the employee's resignation

The plaintiff [Petitioner] in this action was initially employed by the City of Lockport [Lockport] in a position in a collective bargaining unit represented by the American Federation of State, County and Municipal Employees [AFSCME]. Lockport subsequently promoted Petitioner to a position in a collective bargaining unit represented by the Civil Service Employees Association [CSEA]. In 2008 Petition later left Lockport's employ and commenced working for Niagara County [County]. In 2016, Petitioner asked Lockport provide him medical benefits set out in the relevant collective bargaining agreements [CBAs] between Lockport and AFSCME and between Lockport and CSEA.

When Lockport refused to do so, Petitioner commenced an action for breach of contract and sought a court order declaring that Lockport was required to provide him with the medical benefits set out in the relevant CBA. Ultimately Supreme Court granted Plaintiff's motion for summary judgment, ruling that Lockport was obligated to provide Petitioner with medical benefits under the Lockport and AFSCME CBA. The Appellate Division, in response to Lockport's appeal challenging the Supreme Court's decision, affirmed the lower court's ruling.

The court explained that "[a]s a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement .... However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement . . . , and [the court] must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right."

Citing Kolbe v Tibbetts, 22 NY3d 344, the Appellate Division observed that whether a provision in a collective bargaining agreement "is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous. In contrast, said the court, where the language in the collective bargaining agreement "is 'reasonably susceptible of more than one interpretation, extrinsic or parol evidence may be then permitted to determine the parties' intent as to the meaning of that language,'" referencing Fernandez v Price, 63 AD3d 672 quoting Chimart Assoc. v Paul, 66 NY2d 570.

In this instance the Appellate Division concluded that Supreme Court "properly determined that the plain meaning of the provisions at issue in the AFSCME CBA establishes that [Petitioner] has a vested right to medical benefits, [that] those rights vested when he completed his 20th year of service, and [Petitioner] became eligible to receive said benefits when he reached retirement age."

Further opined the Appellate Division, Petitioner's right to medical benefits "vested when he satisfied the criteria in the AFSCME CBA, and there is no language in the AFSCME CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age." Accordingly the court concluded that Supreme Court's interpretation of the AFSCME CBA "give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized ... and does not leave one of its provisions substantially without force or effect."

N.B. Motion to dismiss appeal granted, Motion #CA 18-00924 [see
http://www.nycourts.gov/reporter/motions/2018/2018_66476.htm]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08792.htm

Property owner liable if a firefighter is injured in the line of duty due to the owner's failure to comply with law, rule or regulation that resulted in the injury

General Municipal Law §205-a "gives a firefighter . . . a right of action against any person whose negligent failure to comply with a government provision either  directly or indirectly results in injury" suffered in the "line of duty."

A city firefighter, who had sustained injuries in the course of performing firefighting duties when he "stepped onto a roof, slipped on the snowy surface and fell to the ground," and his spouse [Plaintiffs] sued the owner, [Defendant] alleging the Defendant was liable, citing General Municipal Law §205-a and General Obligations Law §11-106. Supreme Court granted the Defendant's motion and Plaintiffs appealed.

The Appellate Division ruled that Supreme Court properly granted Defendant's motion for summary judgment, explaining that while General Municipal Law §205-a "gives a firefighter . . . a right of action," to successfully make out such a claim, a plaintiff:

1. Must identify the statute or ordinance with which the defendant failed to comply;

2. Describe the manner in which the firefighter was injured; and

3. Set out the facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter.

In contrast, to succeed on a motion for summary judgment dismissing the plaintiff's action in this context, a defendant must show either:

1. Defendant did not violate any relevant governmental provision or;

2. If a relevant government provision was violated, that such violation did not directly or indirectly cause [the firefighter's] injuries."

Defendant had submitted his deposition testimony and the affidavit of an expert opining that Defendant's house contained no building code violations that contributed to the firefighter's injuries.

Plaintiffs contended that Defendant had violated statutory and building code provisions requiring all multifamily dwellings to contain fire-resistant enclosures at the base or top of stairways or both and that the lack of such enclosures contributed to the firefighter's injuries.

The court, however, observed that Plaintiffs' expert contended that Defendant violated provisions of these laws, but his opinions were based on assumptions without any explanation of how these laws were applicable in this instance.

Further, although Plaintiffs also assert that Defendant violated local ordinances by failing to obtain permits when certain work was performed inside the house, the Appellate Division noted that record does not indicate that any of those alleged violations caused or contributed to the firefighter's injuries.

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that Defendant was entitled to summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02604.htm

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Disability Benefits for fire, police and other public sector personnel - This e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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Selected cases noted in the press during the week ending April 6, 2019

A federal judge has ruled there is no coverage under a homeowners' insurance policy for a minor's allegations of sexual misconduct against a female teacher.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394901-judge-rules-safeco-insurance-not-responsible-for-coverage-of-teacher-s-sexual-misconduct-allegations?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

An environmental group has been granted the right to act on behalf of four of its members in an action against the owners of a coal-fired power plant on the Mississippi River. 

The item is posted on the Internet at:

https://stlrecord.com/stories/512359052-environmental-group-granted-standing-in-action-against-power-plant-owner?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

Public Schools employee who alleged he was paid less than his female counterparts has lost his case in federal court.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394851-jefferson-city-public-schools-employee-loses-equal-pay-claim-case?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803