Rejection of demands for additional compensation for work performed pursuant a contract

Rejection of demands for additional compensation for work performed pursuant a contract to remediate and digitize documents damaged by flooding by New York City's Contract Dispute Resolution Board and NYC Office of Administrative Trials and Hearings (OATH) unanimously affirmed by the Appellate Division.

 

Matter of Total Envtl. Restoration Solutions, Inc. (TERS) v Contract Dispute Resolution Bd.

2023 NY Slip Op 01878

Decided on April 11, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 11, 2023
Before: Kern, J.P., Friedman, Gesmer, Higgitt, JJ.

Index No. 154920/21 Appeal No. 17 Case No. 2021-04286

[*1]In the Matter of Total Environmental Restoration Solutions, Inc. (TERS), Petitioner-Appellant,

v

Contract Dispute Resolution Board, et al., Respondents-Respondents.

Kostelanetz & Fink, LLP, New York (Claude Millman of counsel), for appellant.

Frank Ng, New York, for Contract Dispute Resolution Board and NYC Office of Administrative Trials and Hearings (OATH), respondent.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Philip W. Young of counsel), for The City of New York, The Office of the Comptroller and the New York City Police Department (NYPD), respondents.

Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 13, 2021, denying the petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated February 4, 2021, which denied petitioner's claims for additional compensation from respondent New York Police Department (NYPD) for work performed pursuant a contract to remediate and digitize documents damaged by flooding caused by Hurricane Sandy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

CDRB's determination was not arbitrary or capricious or affected by an error of law (see CPLR 7803[3]; 9 RCNY 4-09[g][6]). In calculating the remediation costs, CDRB rationally concluded that the language of the contract did not support petitioner's contention that the word "page" unambiguously referred to one side of a sheet of paper. Unlike the section governing digitization services, which clarified that "[d]ouble-sided documents count as two pages," there was no equivalent provision in the section governing remediation. The omission of similar language with respect to remediation services "must be deemed an intentional choice of the parties" (Ambac Assur. Corp. v EMC Mtge. LLC, 121 AD3d 514, 518 [1st Dept 2014]). Indeed, remediation treats the whole sheet of paper regardless of whether it is printed on one or both sides, whereas digitization depends on the number of images scanned.

The contract's merger clause precludes petitioner's reliance on communications between the parties and other extrinsic sources to support its proposed definition (see Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013]). Further, extrinsic evidence may not be considered where, as here, the contract is unambiguous (Matter of Wells Fargo Bank, N.A., 198 AD3d 156, 163 [1st Dept 2021], lv dismissed 38 NY3d 998 [2022]). In any event, even if there were an ambiguity, it is to be construed against petitioner, the drafter of the agreement (see 327 Realty, LLC v Nextel of N.Y., Inc., 150 AD3d 581, 582 [1st Dept 2017])

In determining the digitization costs, CDRB rationally relied on NYPD's calculation of the number of images that had been digitized, which was based on the number of files that NYPD received on hard drives from petitioner. This method was consistent with the contractual term that petitioner was to be compensated "for the actual number of . . . images digitized." By contrast, petitioner's calculation method using image file size did not comport with the terms of the agreement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 11, 2023

 

Requirements to establish a prima facie case of the employer's failure to provide a reasonable accommodatition of an employee's disability

To establish a prima facie case of an employer's failure to accommodate an employee's disability within the meaning of the Americans with Disabilities Act, 42 U.S.C. §§12101–12213 [ADA], the plaintiff must allege the following:

(1) The plaintiff is a person with a disability within the meaning of the ADA;

(2) An employer covered by the statute had notice of plaintiff's disability;

(3) With reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and

(4) The employer has refused to make such accommodation or accommodations.

In this action the parties disputed whether New York City Department Of Human Resources Administration [HRA] had refused to provide the employee [Plaintiff] with a reasonable accommodation of her alleged disability within the meaning of 42 U.S.C. §§12101–12213.

The U.S. Circuit Court of Appeals, Second Circuit, noted that, for the purposes of the ADA, a reasonable accommodation “is one that enables an individual with a disability ... to perform the essential functions of that position or to enjoy equal benefits and privileges of employment.” However, observed the court, the ADA does not require employers to “provide a perfect accommodation or the very accommodation most strongly preferred by the employee.”

Plaintiff acknowledged that, in response to her request, HRA provided her with an ergonomic chair and footrest, but alleged that the ergonomic chair was “dilapidated” and the footrest "rocked." The Circuit Court, however, noted Plaintiff failed to identify any “benefits or privileges of employment” that she was not able to enjoy because of the chair and footrest that HRA provided to accommodate the employee's alleged disability.

The Circuit Court also commented that it agreed with the federal District Court that Plaintiff’s allegations in support of her claim that the accommodations HRA provided were inadequate were "too conclusory and thus fail to establish a prima facie case for failure to accommodate a disability."

Plaintiff also contended that the District Court erred in dismissing her discrimination complaints pursuant to the ADA and Title VII. Addressing this claim, the Circuit Court opined that Plaintiff failed "to develop her legal theory in support of this argument," pointing out  that "[it] is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."

In addition, the Circuit Court noted that Plaintiff did not allege facts sufficient to raise an inference that HRA's actions were taken because of her race or disability, citing Vega v. Hempstead Union Free School District, 801 F.3d 72.

Considering Plaintiff's remaining arguments, the Second Circuit Court of Appeals concluded that "that they are without merit" and affirmed the judgment of the federal District Court dismissing Plaintiff's complaint.

Click HERE to access the Circuit Court's decision posted on the Internet.

Exhaustion of administrative remedies

It is clear that New York courts, as a general rule, will not consider lawsuits filed by an aggrieved Plaintive protesting some administrative determination unless the Plaintiff has exhausted his or her or its administrative remedies.

The major exception to this rule: a party's effort to exhaust an available administrative remedy would constitute "an exercise in futility". Typically, New York courts apply this exception when it is deemed that the administrative decision is a foregone conclusion.

There is a coda to this exception as the Appellate Division indicated in deciding the instant CPLR Article 78 action. 

The Appellate Division rejected the New York City Department of Records and Information Services' [Records] argument that the Petitioner had failed to exhaust its administrative remedies, noting that Petitioner "... filed a timely administrative appeal from [Record's] initial denial of [Petitioner's] FOIL request" and Records had denied that appeal.

The court then opined "Petitioner was not required to bring a second administrative appeal challenging [Record's] determination of [Petitioner's] first administrative appeal."

Click HERE to access the Appellate Division's decision posted on the Internet.

Employment Opportunities with the New York State Department of Education

The New York State Department of Educations invites those interested in employment with Department to explore its current job and career opportunities as it is currently seeking talented candidates to join its team. 

The Department is responsible for educational services from pre-kindergarten through graduate school and oversees licensed professions, certified educators, as well as cultural institutions including libraries, archives and museums, and provides services to individuals with disabilities. 

It is the policy of the Department to provide for and promote equal opportunity in employment, compensation and other terms and conditions of employment without discrimination on the basis of age, race, color, religion, disability, national origin, gender, genetic predisposition or carrier status, sexual orientation, marital status, or arrest and/or criminal conviction record unless based upon a bona fide occupational qualification or other exception. 

Employees are hired by the Department in accordance with the New York Civil Service Law.  Positions in this and other State agencies generally are filled through competitive examinations.  Visit the New York State Department of Civil Service (link is external) for examination announcements and information about how to apply for a Civil Service examination. 

Click HERE for additional information concerning these employment opportunities.

 

Appeal pursuant to New York State's Dignity for All Students Act submitted to the Commissioner of Education

New York State's Dignity for All Students Act* [DASA] prohibits harassment and bullying in public schools.  DASA defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....”.  

Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....

Citing Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859 and Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864, the Commissioner of Education observed that a School District’s DASA determination will be reversed "only upon a showing that it was arbitrary or capricious."

Explaining that the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, in the instant mater the Commissioner found:

1. The record demonstrated that the School District responded to Petitioner’s allegations of bullying and harassment of Petitioner’s child [Student] appropriately; 

2. The school principal investigated each of the alleged incidents and addressed the alleged misconduct of "A" and "B" promptly;

3. The School District took remedial action to protect Student in school and prevent future bullying or harassment, including the implementation of a “stay away” agreement between Student and "A"; and

4. The principal explained the inappropriateness of "B" addressing derogatory language to Student, and "B" subsequently apologized to Student.

Finding that Petitioner failed to meet her burden of proving that [1] the School District acted in an arbitrary and, or, a capricious manner or [2] that any other relief was warranted, the Commissioner dismissed Petitioner's appeal. 

* Education Law §11[7]; 8 NYCRR 100.2 [kk] [1]

Click HERE to access the Commissioner's decision.