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THE CIVIL SERVICE LAW, NOT THE COLLECTIVE BARGAINING AGREEMENT, CONTROLS THE TERMINATION OF AN INJURED FIREFIGHTER ABSENT FOR MORE THAN A YEAR DUE TO THE INJURY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Civil Service Law, not the collective bargaining agreement, controlled the termination of an injured firefighter who had been absent for more than a year due to the injury:

Civil Service Law § 71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the worker’s compensation law, “he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.” The legislature provided that the state civil service commission shall “prescribe and amend suitable rules and regulations for carrying into effect the provisions of this chapter,” including “rules for . . . leaves of absence” (Civil Service Law § 6[1]). The Department of Civil Service has promulgated implementing regulations for Civil Service Law § 71, including detailed procedures for notifying an employee of the right to a one-year leave of absence during continued disability, and notifying an employee of an impending termination following the expiration of that one-year period and the right to a hearing and to apply for a return to duty (see 4 NYCRR 5.9). Here, the specific directives of Civil Service Law § 71 and 4 NYCRR 5.9 leave no room for negotiation of the procedures to be followed prior to the termination of an employee’s employment upon the exhaustion of the one-year period of leave. Therefore the presumption in favor of collective bargaining is overcome … . Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2020 NY Slip Op 05504, Second Dept 10-7-20

 

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THE LATE SUMMARY JUDGMENT MOTION AND THE EXCUSE OFFERED IN REPLY PAPERS SHOULD... NATURE OF AN INGRESS AND EGRESS EASEMENT EXPLAINED (SECOND DEPT).