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NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT).

The Second Department determined the defendants demonstrated they did not own, occupy or control the area where plaintiff slipped and fell. Therefore the defendants owed no duty of care to the plaintiff:

“To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff” … . Where there is no duty of care owed by the defendant to the plaintiff, there can be no breach, and thus, no liability can be imposed upon the defendant … . Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property… . The existence of one or more of these elements is sufficient to give rise to a duty of care… . Where none is present, “[generally] a party cannot be held liable for injuries caused by the allegedly defective condition” … .

Here, the defendants established, prima facie, that they did not owe a duty to the plaintiff by demonstrating that they did not own, occupy, or control the area where the subject accident occurred, and thus, that they did not have a duty to maintain the staircase on the date of the accident. Donatien v Long Is. Coll. Hosp., 2017 NY Slip Op 06061, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/SLIP AND FALL (NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/DUTY OF CARE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))

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PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT).

The Second Department determined the “substantial evidence” standard did not apply to review of the Unified Court System’s finding that the court assistant (petitioner) was not asked to do out-of-title work. The “arbitrary and capricious” standard was the proper one:

Contrary to the petitioner’s contention, “a substantial evidence’ question is presented only where a quasi-judicial evidentiary hearing has been held”… . The fact that the petitioner had the “right to be heard . . . and to present facts in support of [his] position” at a grievance meeting …did not render the grievance meeting “a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of CPLR 7803(4)”… . Since the administrative determination in this case was made after a grievance meeting, as opposed to a quasi-judicial evidentiary hearing, the court properly concluded that the relevant standard of review was whether the “determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion” … .

The petitioner further contends that the Deputy Director’s determination was arbitrary and capricious. “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … . “In applying the arbitrary and capricious’ standard, a court inquires whether the determination under review had a rational basis” … . Matter of Manning v New York State-Unified Ct. Sys., 2017 NY Slip Op 06077, Second Dept 8-9-17

 

ADMINISTRATIVE LAW (EVIDENCE, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/ARBITRARY AND CAPRICIOUS (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/QUASI-JUDICIAL (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))

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ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT).

Although the facts of the case were not spelled out, the Second Department determined the introduction of a chart showing the structure and membership of a gang was (harmless) error:

We agree with the defendant that under the circumstances here, it was improper to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang’s members by name and their associated arrest photos … .  Nevertheless, the error was harmless, as the proof of the defendant’s guilt of arson in the first degree and conspiracy in the second degree was overwhelming, and there is no significant probability that, but for the error, the verdict would have been less adverse … . People v Burkette, 2017 NY Slip Op 06082, Second Dept 8-9-17

CRIMINAL LAW (EVIDENCE, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE,  ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))

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IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED; PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT).

The Second Department determined the sentencing court erroneously considered a crime of which defendant was acquitted in sentencing. The Second Department further noted that the People did not demonstrate that the assault and robbery convictions were based upon different underlying facts, therefore the sentences must run concurrently:

Certain remarks made by the sentencing court demonstrate that it improperly considered a crime of which the defendant was acquitted as a basis for sentencing. Accordingly, the matter must be remitted … for resentencing … . Further, since the People failed to establish that the acts underlying the conviction of assault in the first degree were separate and distinct from the acts underlying the conviction of attempted robbery in the first degree, the sentences imposed on remittal are to run concurrently … . People v Newman, 2017 NY Slip Op 06086, Second Dept 8-9-17

CRIMINAL LAW (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/SENTENCING (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/CONCURRENT SENTENCES (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))

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IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the written consulting (retainer) agreement was complete and evidence of an oral agreement to form a joint venture should not have been considered. Defendant’s motion to dismiss founded on documentary evidence (the written retainer agreement), therefore, should have been granted. Plaintiff had alleged defendant breached the oral agreement:

“To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim”… . A written agreement that is complete, clear, and unambiguous on its face must be enforced to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities … . The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions … . Where, as here, there is no merger clause, the court must examine the surrounding circumstances and the writing itself to determine whether the agreement constitutes a complete, integrated instrument … .

Here, both a reading of the written retainer agreement and a consideration of the surrounding circumstances lead to the conclusion that the written retainer agreement is a complete written instrument, and, thus, evidence of what may have been agreed orally between the parties prior to the execution of this integrated written instrument cannot be received to vary the terms of the writing … . Hoeg Corp. v Peebles Corp., 2017 NY Slip Op 06066, Second Dept 8-9-17

 

CONTRACT LAW (PAROL EVIDENCE RULE, IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (DISMISSAL FOUNDED ON DOCUMENTARY EVIDENCE,  IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (PAROL EVIDENCE RULE, IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PAROL EVIDENCE RULE (IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT).

The Second Department determined the causes of action brought by plaintiff’s decedent were properly dismissed because counsel did not timely substitute a representative for the deceased plaintiff:

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“CPLR 1021 requires a motion for substitution to be made within a reasonable time”… . “The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit” … .

Here, the plaintiff’s counsel failed to demonstrate that he made any diligent efforts to substitute a representative for the deceased plaintiff. Additionally, the plaintiff’s counsel did not demonstrate a reasonable excuse for failing to seek a substitution. Further, the plaintiff’s counsel failed to submit an affidavit of merit, and did not rebut the contention of  [defendants] that they were prejudiced in their ability to defend the case. Howlader v Lucky Star Grocery, Inc., 2017 NY Slip Op 06067, Second Dept 8-9-17

 

CIVIL PROCEDURE (TRUSTS AND ESTATES, SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE,  SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))/ATTORNEYS (TRUSTS AND ESTATES, SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))

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DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT).

The Second Department noted that the declaratory judgment action which sought a determination of the ownership of a stock certificate representing shares in a cooperative apartment was governed by the three-year statute of limitation. The stock certificate was personal property, not real estate:

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The defendants established that the action was barred by the three-year statute of limitations for recovery of a chattel (see CPLR 214[3]). “In order to determine the Statute of Limitations applicable to a particular declaratory judgment action, the court must examine the substance of that action to identify the relationship out of which the claim arises and the relief sought'”

… . “If the court determines that the underlying dispute can be or could have been resolved through a form of action or proceeding for which a specific limitation period is statutorily provided, that limitation period governs the declaratory judgment action” … . Here, the plaintiff seeks to recover a stock certificate representing shares in a cooperative apartment corporation. An action to recover a stock certificate is governed by the three-year statute of limitations for recovery of a chattel … . “Shares of stock issued in connection with cooperative apartments are personal property, not real property” … . Loscalzo v 507-509 President St. Tenants Assn. Hous. Dev. Fund Corp., 2017 NY Slip Op 06070, Second Dept 8-9-17

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CIVIL PROCEDURE (DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT))/DECLARATORY JUDGMENT (STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT))/SECURITIES (SHARES IN COOPERATIVE APARTMENT, DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT))/COOPERATIVES (DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK CERTIFICATE REPRESENTING SHARES IN A COOPERATIVE APARTMENT IS GOVERNED BY A THREE-YEAR STATUTE OF LIMITATIONS, THE STOCK CERTIFICATE IS PERSONAL NOT REAL PROPERTY (SECOND DEPT))

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REQUIREMENTS FOR SERVICE ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY NOT MET, DEFAULT JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the Limited Liability Company Law requirements for a default judgment against an unauthorized foreign limited liability company were not met:

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim (see CPLR 3215[f] …).

The plaintiff averred that it served the defendant, a foreign limited liability company not authorized to conduct business in New York, pursuant to Limited Liability Company Law § 304. As relevant to the plaintiff’s contentions, that statute requires three things. First, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State … . Second, in order for the personal delivery to the Secretary of State to be “sufficient,” the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process. The direct notice may be sent to the defendant by registered mail, return receipt requested, to the defendant’s last known address … . Third, after process has been delivered to the Secretary of State and direct notice of that service has been sent to the defendant, the plaintiff must file proof of service with the clerk of the court. That proof of service must be in the form of an “affidavit of compliance.” The affidavit of compliance must be filed with the return receipt within 30 days after the plaintiff has received the return receipt from the post office. Service of process shall be complete 10 days after the affidavit of compliance has been filed with the clerk with a copy of the summons and complaint … . Strict compliance with Limited Liability Company Law § 304 is required, including as to the filing of an “affidavit of compliance” … . Where the plaintiff has failed to demonstrate strict compliance, the plaintiff will not be entitled to a default judgment … . Here, the plaintiff failed to submit an affidavit of compliance with the return receipt within 30 days after it received the return receipt from the post office. Accordingly, the plaintiff’s unopposed motion for leave to enter a default judgment was properly denied … . Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 2017 NY Slip Op 06065, Second Dept 8-9-17

CIVIL PROCEDURE (LIMITED LIABILITY COMPANY LAW, DEFAULT JUDGMENT, REQUIREMENTS FOR SERVICE ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY NOT MET, DEFAULT JUDGMENT PROPERLY DENIED (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (DEFAULT JUDGMENT, REQUIREMENTS FOR SERVICE ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY NOT MET, DEFAULT JUDGMENT PROPERLY DENIED (SECOND DEPT))/DEFAULT JUDGMENTS (UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, REQUIREMENTS FOR SERVICE ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY NOT MET, DEFAULT JUDGMENT PROPERLY DENIED (SECOND DEPT))

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JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the suit against plaintiff’s divorce attorneys alleging a violation of Judiciary Law 487 was properly dismissed, both because of the failure to prove an intent to deceive the court, and the failure to prove pecuniary damage:

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Judiciary Law § 487(1) provides that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he [or she] forfeits to the party injured treble damages, to be recovered in a civil action.” “A violation of Judiciary Law § 487 requires an intent to deceive” …  Here, the evidence adduced at trial, including the testimony of [plaintiff’s attorney], supports the trial court’s determination that [the attorney] did not act with the requisite “intent to deceive the court or any party” in applying for the receivership … .

In any event, to succeed on a cause of action to recover damages under Judiciary Law § 487, the plaintiff must demonstrate that he or she “suffered . . . damages which were proximately caused by the deceit allegedly perpetrated on him [or her] or on the court” … .  The evidence adduced at trial also supports the trial court’s conclusion that the plaintiff failed to establish that she suffered pecuniary damages as a result of the alleged deceit. Dupree v Voorhees, 2017 NY Slip Op 06062, Second Dept 8-9-17

 

ATTORNEYS (JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT))/JUDICIARY LAW 487 (ATTORNEYS, JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT))

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UNION’S CLAIM MEDICAL TREATMENT FOR LINE OF DUTY INJURIES WAS BEING UNDULY DELAYED OR DENIED WAS ARBITRABLE, WHETHER THE UNDERLYING GRIEVANCE WAS TIMELY BROUGHT MUST BE DETERMINED BY THE ARBITRATOR, NOT THE COURT (SECOND DEPT).

The Second Department determined that the city’s petition to permanently stay arbitration was properly dismissed. The court described the criteria for determining whether a matter is arbitrable pursuant to a collective bargaining agreement (CBA). The court further held that whether the underlying grievance was timely brought must be determined by the arbitrator because the CBA was silent on the issue. The city firefighters (Local 628) sought arbitration of whether medical treatment for line of duty injuries (General Municipal Law 207-a) was being unduly delayed or denied:

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“In analyzing whether the parties in fact agreed to arbitrate the particular dispute, a court is merely to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'” … . Here, the relevant arbitration provisions of the CBA are broad, as they provide for arbitration of any grievance “involving the interpretation or application of any provision of this Agreement,” which remains unresolved following completion of step two of the grievance procedure. Moreover, there is a reasonable relationship between the subject matter of the dispute, which involves the processing of General Municipal Law § 207-a benefits to firefighters injured in the line of duty, and Appendix C of the CBA which sets forth the procedures regulating “the application for, and the award of, benefits under section 207-a of the General Municipal Law” … .

The City’s contention that arbitration was precluded because Local 628’s grievance was not timely pursuant to step one of the grievance procedure is without merit. The “threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine” … . By contrast, “[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration” … . Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2017 NY Slip Op 06073, Second Dept 8-9-17

 

ARBITRATION (UNION’S CLAIM MEDICAL TREATMENT FOR LINE OF DUTY INJURIES WAS BEING UNDULY DELAYED OR DENIED WAS ARBITRABLE, WHETHER THE UNDERLYING GRIEVANCE WAS TIMELY BROUGHT MUST BE DETERMINED BY THE ARBITRATOR, NOT THE COURT (SECOND DEPT))/EMPLOYMENT LAW (ARBITRATION, COLLECTIVE BARGAINING AGREEMENT, UNION’S CLAIM MEDICAL TREATMENT FOR LINE OF DUTY INJURIES WAS BEING UNDULY DELAYED OR DENIED WAS ARBITRABLE, WHETHER THE UNDERLYING GRIEVANCE WAS TIMELY BROUGHT MUST BE DETERMINED BY THE ARBITRATOR, NOT THE COURT (SECOND DEPT))/MUNICIPAL LAW (ARBITRATION, UNION’S CLAIM MEDICAL TREATMENT FOR LINE OF DUTY INJURIES WAS BEING UNDULY DELAYED OR DENIED WAS ARBITRABLE, WHETHER THE UNDERLYING GRIEVANCE WAS TIMELY BROUGHT MUST BE DETERMINED BY THE ARBITRATOR, NOT THE COURT (SECOND DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, (UNION’S CLAIM MEDICAL TREATMENT FOR LINE OF DUTY INJURIES WAS BEING UNDULY DELAYED OR DENIED WAS ARBITRABLE, WHETHER THE UNDERLYING GRIEVANCE WAS TIMELY BROUGHT MUST BE DETERMINED BY THE ARBITRATOR, NOT THE COURT (SECOND DEPT)) 

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