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New York City’s Decision Not to Apply Increased Take Home Pay Benefit to Police Officers and Firefighters Struck Down

In a full-fledged opinion by Justice Acosta, the First Department determined that the “City of New York’s decision to not apply an increased-take-home-pay (ITHP) benefit to police officers and firefighters placed into Tier III of the retirement system after July 1, 2009, and to continue deducting 3% of their wages towards their retirement benefits, violates Retirement and Social Security Law (RSSL) [section] 440(b)” and supports a cause of action for “common-law conversion of the deducted wages.”  Lynch v City of New York, 2013 Slip Op 03581, 1st Dept, 5-16-13

 

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Teachers’ and School Administrators’ Grievances Re Staff Cuts Stemming from School Closings Deemed Arbitrable​

The First Department determined the teachers’ and school administrators’ unions’ grievances concerning staff cuts inherent in the Department of Education’s (DOE’s) plan to close 24 underperforming schools were arbitrable, rejecting the DOE’s argument.  The arbitrator ruled the plan violated the collective bargaining agreement’s (CBA’s) requirements that staff cuts be done on the basis of seniority:

While broadly referencing educational laws and regulations, the DOE fails to identify any law that “prohibit[s], in an absolute sense, [the] particular matters [to be] decided”… [“[i]t is only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated”]). The underlying grievance in no way impinges on the authority of the SED (State Education Department] to approve a plan for the closure or the reopening of the 24 underperforming schools as new schools under the Education law (Education Law § 2590-h). Nor can the DOE rely on its own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs. Matter of Board of Educ of the City Sch Dist of the City of NY v Mulgrew, 2013 NY Slip Op 03580, 1st Dept, 5-16-13

 

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Children’s Hearsay Alleging Abuse by Father Was Not Corroborated; Change in Custody Should Not Have Been Granted

In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody:

Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated …. *  *  * Because the  children’s out-of-court statements were not corroborated, Family Court’s finding of a change in circumstances lacks a sound and substantial basis in the record.  Matter of Zukowski v Zukowski, 514074, 3rd Dept, 5-16-13

 

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Hearing Officer’s Refusal to Call Witness Required Expungement of Relevant Charges

The Third Department determined the relevant charges must be expunged because the hearing officer refused to call a witness, a violation of the inmate’s constitutional right:

…[T]he Hearing Officer erroneously refused to call a correction officer who witnessed petitioner’s behavior while being escorted to his cell. Inasmuch  as petitioner was deprived of his constitutional right to call a witness with regard to that incident, expungement of the related charges is required… .  Matter of Cahill v Prack, 515216, 3rd Dept, 5-16-13

 

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Failure to Explain Why Inmate’s Roommates Allegedly Refused to Testify Required Annulment​

Because no explanation was provided to explain the requested witnesses’ (the inmate’s roommates’) alleged refusal to testify, the Third Department annulled the determination:

Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but not by the inmates, and that no explanations were given for their refusal to testify. Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; ….).  Matter of Sorrentino v Fischer, 515214, 3rd Dept, 5-16-13

 

 

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Hearing Officer’s Refusal to Provide Requested Documents Required Annulment

The Third Department determined the failure to provide the inmate with evidence he requested required the annulment of the guilty determination:

Petitioner requested copies of  any “to/from” forms related to the incident and, despite the fact that one  of the correction officers testified to giving his account  of the events at issue in such  a  form, the Hearing Officer declined to provide petitioner a copy. Inasmuch as that document could have been relevant to formulating petitioner’s defense and effectuating his questioning of the officer, the determination must be annulled… .  Matter of Bermudez v Fischer, 514110, 3rd Dept, 5-16-13

 

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“Sole Proximate Cause” Defense Not Demonstrated

In reversing Supreme Court and granting plaintiff’s motion for summary judgment, the First Department determined the facts did not support the defense that plaintiff was the sole proximate cause of the accident. Plaintiff was injured when a drill rig fell after safety chains had been removed. The First Department determined the facts demonstrated plaintiff was not solely responsible for removing the safety chains and, therefore, the “sole proximate cause” defense was not available:

The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device …. However, “the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … .

Plaintiff did not unilaterally elect to remove the chains and chain binders. Clark, the dock builder foreman who had the discretion to make the determination in the field as to the manner in which the drill rig would be moved, determined that the drill rig could not be pivoted with the chain binders attached, a belief plaintiff shared … .  Boyd v Schiavone Constr Co, Inc, 2013 NY Slip Op 03578, 1st Dept, 5-16-13

 

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Ratified Release Precluded Employment Discrimination Action

The First Department reversed Supreme Court and granted defendant’s motion to dismiss plaintiffs employment discrimination, retaliation and hostile work environment claims.  Plaintiffs signed a release and received severance pay based upon the terms of the release.  The First Department determined plaintiffs’ claims that the signed the release under duress were foreclosed by their ratification of the release (accepting the severance pay):

The motion court should have dismissed the complaint in its entirety. “Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” …. A release will not be treated lightly because it is a “a jural act of high significance without which the settlement of disputes would be rendered all but impossible” …. Where the language is clear and unambiguous, the release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake … . *  *  *

Assuming arguendo that issues of fact exist as to duress and overreaching, plaintiffs are nevertheless barred from challenging the releases on those grounds because they ratified the releases. Ratification occurs when a party accepts the benefits of a contract and fails to act promptly to repudiate it…. Thus, a plaintiff cannot claim that he or she was compelled to execute an agreement under duress while simultaneously accepting the benefits of the agreement …  Allen v Riese Org, Inc, 2013 NY Slip Op 03547, 1st Dept, 5-16-13

 

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Claimant’s Non-Work-Related Felony Deemed to Breach Express or Implied Duty Owed to Employer

The Third Department determined claimant was ineligible for unemployment insurance benefits because of an act constituting a felony which took place at the claimant’s home, not at work, but which generated negative publicity, breaching a duty owed to the employer (a car dealership).  The Third Department wrote:

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost his “employment as a result of an act constituting a felony in connection with such employment” (Labor Law § 593; see Labor Law§  597). Claimant, a car salesperson, was fired after his arrest on charges stemming from, among other things, his surreptitious videotaping of individuals who used the bathroom of his home. The charges, which generated negative publicity and numerous customer complaints, ultimately were resolved when claimant pleaded guilty to one count of unlawful surveillance in the second degree. Given the public nature of claimant’s position and the detrimental effect his continued employment could have had upon the employer’s business, the Board properly determined that claimant’s actions constituted a breach of  an  express  or implied duty owed to the employer… Matter of Engel [Commissioner of Labor], 515513, 3rd Dept, 5-16-13

 

 

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Claimant Not Entitled to Benefits For Time Spent Working Out of House 

After claimant was laid off, he operated a business [Hatch Ventures] periodically out of his home.  The Third Department determined the claimant was not eligible for unemployment insurance benefits for the days he operated his business but that “recoverable overpayment and forfeiture penalty” should not be imposed because claimant did not make a willful misrepresentation with respect to his home business:

A claimant is not entitled to receive unemployment insurance benefits during the time that he or she  is not  totally unemployed (see Labor Law § 591 [1]).It has  been  held that a claimant who undertakes activities on behalf of an ongoing business is not considered to be totally unemployed even if those activities are minimal  or the business is not  profitable ….   The issue of total unemployment is a factual question for the Board, and  its determination will be  upheld  if supported by  substantial evidence….   Here, claimant admittedly performed various activities on behalf of Hatch Ventures, made business-related expenditures and received income from product sales. Notably, he  indicated that, from  June 1, 2011  until June  30, 2011, he  performed  such  activities three days  a  week  for one  hour  each  day  and  that, after July 1, 2011, he performed them one day per week for three hours.  Matter of Lewis [Copmmissioner of Labor], 515345, 3rd Dept, 5-16-13

 

 

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