The court, rather than the arbitrator, is to determine if the grievance at issue was timely served and if all procedural steps were timely satisfied

The genesis of this action was a grievance filed by the Union on behalf of a Village firefighter who was denied General Municipal Law §207-a disability benefits after allegedly sustaining an injury while on duty.

When the Union demanded that the matter be submitted to arbitration, the Village commenced a proceeding pursuant to CPLR Article 75 seeking a permanent stay of arbitration of the grievance, contending it was untimely. Supreme Court dismissed Village's petition to stay arbitration and the Village appealed.

The Village further argued that the dispute with respect to the firefighter's entitlement to §207-a benefits was not arbitrable as the CBA does not govern such disputes and thus, the CPLR, and not the CBA, applies in determining the timeliness of the dispute.

The Appellate Division rejected the Village's argument, opining that "It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim."

In making that threshold determination, the court must conduct a two-part analysis. First, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Appellate Division said that the court must determine whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."

In the event the court determines that no such prohibition exists, as the Court of Appeals held in (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, "the court must then determine whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that with respect to the first test, there was no statutory, constitutional or public policy prohibition against the parties agreeing to a procedure ending in arbitration to resolve grievances concerning an appointing authority's §207-a benefits determination.

Addressing the second test, the Appellate Division concluded that Supreme Court "properly determined that the CBA contains a broad arbitration clause and that there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

However, the Appellate Division said it agreed the Village's argument that the CBA contains conditions precedent to arbitration in the CBA's grievance procedure and that Supreme Court should have decided whether such conditions precedent had been met.

Noting that "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators," except in cases involving "a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

In this instance, said the court, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration.

Under the circumstances, the Appellate Division concluded that it was for the court, and not the arbitrator, to decide [1] whether the grievance had been timely served and[2] whether "steps one and two of the grievance procedure" set out in the CBA had been satisfied.

Accordingly, the Appellate Division reversed the order and judgment of Supreme Court, reinstated the petition, and remitted the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination with respect to the Village's petition to stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04251.htm

New York State's Governor Andrew M. Cuomo to chair the virtual summer meeting of the National Governors Association

On August 5, 2020 Governor Andrew M. Cuomo was selected to serve as Chair of the National Governors Association during its virtual 2020 Summer Meeting by unanimous voted.

Governor Cuomo, who will become the longest-serving governor in the country in 2021, is also the first governor from New York to become NGA's chair and he is the first "big state" governor to preside at such a meeting in nearly 50 years.

Charging a fee for the cost of reviewing and redacting requested video footage sought pursuant to New York State's Freedom of Information Law

An individual [Plaintiff] initiated a CPLR Article 78 proceeding seeking to compel a municipality [Respondents] to comply with his request pursuant to the Freedom of Information Law ([FOIL] for certain video footage recorded by certain of Respondent's police officers as part of its Body-Worn Camera (BWC) program.

Ultimately the Appellate Division considered the two appeals that were filed as the result of rulings by Supreme Court.

In one appeal, Appeal 1, Supreme Court concluded that Public Officers Law §87:

[1] Did not permit Respondents to meet their FOIL obligations by providing a "blanket-blurred" video to Petitioner;

[2] Determined that Respondents could charge a fee "directly related to the redaction of electronic records," provided the fee was not onerous; and

[3] Remitted the matter to Respondents for reconsideration, directing Respondents to provide a privilege log to Petitioner detailing which sections of the video must be redacted and the reason for such redaction.

Also with respect to appeal No. 1 the Appellate Division said it agreed with Plaintiff that Respondents may not charge Plaintiff a fee for the costs associated with Respondent's review or redaction of the BWC footage requested by Plaintiff, noting that the Committee on Open Government has specifically opined that "if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge."*

The court said that although "the advisory opinions issued by the Committee on Open Government are not binding on the courts ..., an agency's interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational," citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, leave to appeal dismissed, 20 NY3d 995.

The Appellate Division then modified Supreme Court's ruling with respect to Appeal 1 by vacating that part of the judgment permitting Respondents to charge Plaintiff a fee for the cost of reviewing and redacting the requested video footage.

Addressing yet another aspect of Appeal 1, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, opined that "Contrary to [Plaintiff's] further contention in appeal No. 1, [Supreme Court] did not err in remitting the matter to [Respondents] to reconsider [Plaintiff's] request, provide a privilege log, and ultimately comply with its statutory obligations and thus any decision concerning Plaintiff's entitlement to attorney's fees are premature at this juncture."

Appeal 2 concerned Plaintiff's appeal from an order denying his application, the Appellate Division rejected Plaintiff's Appeal No. 2 challenging Supreme Court's denying that part of Plaintiff's application seeking a finding of contempt based on Respondents' failure to comply with the judgment in appeal No. 1. 

The court explained that "In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights [and the] movant has the burden of proving contempt by clear and convincing evidence." 

In this instance the Appellate Division determined that Plaintiff failed to establish that the judgment in Appeal No. 1 expressed an unequivocal mandate "inasmuch as no deadline was contained therein."

* Commission on Open Government FOIL Advisory Opinion 18904.

The decision is posted on the Internet at:  

http://www.nycourts.gov/reporter/3dseries/2020/2020_04250.htm