You are here: / WARRANTLESS ENTRY INTO A METH LAB JUSTIFIED BY THE EMERGENCY DOCTRINE,...

Search Results

/ ,

WARRANTLESS ENTRY INTO A METH LAB JUSTIFIED BY THE EMERGENCY DOCTRINE, DANGER TO OCCUPANTS (THIRD DEPT).

The Third Department determined the police officer’s (Tobias’s) warrantless entry into a garage which was being used as a meth lab was justified by the emergency doctrine. The officer saw smoke coming from a broken window in the garage and recognized the odor associated with meth production. The officer testified his fear of an explosion and the related danger to the occupants was the reason he entered the garage:

Tobias’ testimony established that his primary reason for entering the garage was not to arrest defendant or to seize evidence. … Tobias testified that, because he knew “[m]eth labs [to be] dangerous” and to pose a “risk of explosions and fires,” both of his entries into the garage were motivated by his concern for the safety of anyone who may have remained inside … . … [W]e find that Tobias’ warrantless entries into the garage were justified by the emergency doctrine … . People v Alberts, 2018 NY Slip Op 03393 [161 AD3d 1298], Third Dept 5-10-18

suppression, suppress

/

DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT).

The First Department determined the defendant’s (Target’s) motion to change venue in this traffic accident case was properly granted:

Supreme Court did not improvidently exercise its discretion in granting Target’s motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target’s principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there … . Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day … .

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers’ convenience, because their testimony regarding their investigation as to how the accident happened bears on liability… . Furthermore, the police officers’ affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County … . Kochan v Target Corp., 2018 NY Slip Op 03445, First Dept 5-10-18

​CIVIL PROCEDURE (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/VENUE (DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/TRAFFIC ACCIDENTS (CIVIL PROCEDURE, VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))/CPLR 503 (VENUE, DEFENDANT’S MOTION FOR A CHANGE OF VENUE IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED BASED UPON CONVENIENCE OF WITNESSES (FIRST DEPT))

/ , ,

ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS, ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT).

The Third Department determined the trial court in this medical malpractice action did not err in allowing the continued participation of the attorney for defendant hospital (AMH) after the action against the hospital had been dismissed. After the dismissal of the action against the hospital, the only liability the hospital faced was vicarious liability for the actions of its physician employee, who was represented by another attorney. The Third Department further found that the plaintiffs’ request, made for the first time at trial, to call an expert to establish, by cell phone and tower information (GIS), the location of a physician who had been called to assist at the hospital was properly denied:

Following the dismissal of all claims of direct negligence asserted against AMH, plaintiffs renewed their motion to have the role of AMH’s counsel limited. While the dismissal of the direct negligence claims rendered AMH’s potential liability purely vicarious in nature, we are unable to conclude that Supreme Court’s refusal to limit the role of AMH’s counsel during the remainder of the trial to essentially that of a spectator was in error. Because AMH’s liability would be determined by the jury’s findings in relation to plaintiffs’ claims of negligence against Olsen [its physician-employee], AMH was entitled to participate in the efforts to defeat those claims … . Supreme Court promised to exert control over the cross-examination of the remaining witnesses by AMH’s counsel, indicating its intent to prevent any attempt by AMH to “reiterate or to plow ground that has already been plowed by one side or the other,” and the record reflects that counsel’s cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination. The balanced approach taken by the court served to ensure defendants’ valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof … . Under these circumstances, we find no “clear abuse of discretion” in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof … . * * *

… [P]laintiffs first notified defendants of their intention to call a GIS expert more than three years after defendants’ respective demands for expert disclosure and during the midst of the trial. Notably, [the physcian’s] cell phone number was provided to plaintiffs during a pretrial deposition more than a year and a half earlier and, thus, plaintiffs possessed the essential facts necessary to investigate the matter — and, if necessary, to retain an expert — long before trial. Plaintiffs’ claim that they did not realize the significance of the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as Supreme Court found, constitute good cause for the delay … . Moreover, we agree with Supreme Court that, given the complex and technical issues presented by the proposed GIS testimony, the mid-trial disclosure of this expert would have prejudiced defendants … . Lasher v Albany Mem. Hosp., 2018 NY Slip Op 03402, Third Dept 5-10-18

​ATTORNEYS (ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/MEDICAL MALPRACTICE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CPLR 3101 (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/EXPERT WITNESSES (CIVIL PROCEDURE, NOTICE, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))

/

1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT).

The Second Department determined the deeds in question included the possibility of reverter and that right was assignable:

… [T]he 1941 deed and the 1953 deed created possibilities of reverter. ” [E]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law'” … . No precise language is necessary to create a possibility of reverter, but “[a] characteristic of the type of expression which works automatic expiration of the grantee’s fee seems to be one in which time is an important factor,” such as use of the words “until,” “so long as,” or “during” … . Here, the 1941 deed and the 1953 deed unequivocally called for automatic forfeiture of the estate upon breach and thereby created for their respective grantors possibilities of reverter.

… Although no statute in effect in 1964 explicitly provided the grantor of the 1953 deed with a right to convey her possibility of reverter … , under the applicable rules of the common law, “a possibility of reverter could be freely assigned and alienated” … . Njcb Spec-1, LLC v Budnik, 2018 NY Slip Op 03376, Second Dept 5-9-18

​REAL PROPERTY LAW (DEEDS, REVERTER, 1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT))/DEEDS (REVERTER, 1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT)).REVERTER, POSSIBILITY OF (1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT))

/ ,

ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant village’s motion for summary judgment in this parking lot ice and snow slip and fall case was properly denied. The village demonstrated that it did not have written notice of the dangerous condition, but did not demonstrate it did not created the dangerous condition, which plaintiff alleged resulted from the piling of snow in the area:

In the complaint and bill of particulars, the plaintiffs alleged that the Village created the ice condition on which Seegers fell by plowing snow into large piles directly adjacent to parking areas and walkways, thereby blocking drains and allowing the snow to thaw and refreeze, and by failing to properly salt or sand the area … . Accordingly, the Village was required to demonstrate both that it did not have prior written notice of the ice condition in the subject parking lot and that it did not create that condition… .

Although the Village demonstrated that it did not receive written notice of an ice condition in the subject parking lot prior to the accident, it failed to demonstrate, prima facie, that it did not create the ice condition that allegedly caused Seegers to fall … . Seegers v Village of Mineola, 2018 NY Slip Op 03387, Second Dept 5-9-18

​NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT)/SLIP AND FALL (MUNICIPAL LAW,  ALTHOUGH THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ICE AND SNOW CONDITION IN THE AREA WHERE PLAINTIFF FELL, IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION BY PILING SNOW IN THE AREA, VILLAGE’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

/ ,

CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner’s car collided with a car, driven by Cedeno, when Cedeno crossed into on-coming traffic after running over a half-open manhole and losing control. Cedeno had served a timely notice of claim upon the city. The Second Department determined the city had timely notice of the essential facts of the petitioner’s claim:

While the presence or the absence of any one of the factors is not necessarily determinative … , whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance … . The public corporation must have “knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim,” and not merely some general knowledge that a wrong has been committed … . A petitioner’s lack of a reasonable excuse for the delay in serving a timely notice of claim is not necessarily fatal when weighed against other relevant factors … .

The petitioner … demonstrated that the City acquired timely, actual knowledge of the essential facts constituting her claim by way of the timely notice of claim served upon it by Cedeno … . Cedeno’s notice of claim specifically described the nature of the accident between Cedeno and the petitioner. Inasmuch as the City acquired timely, actual knowledge of the essential facts of the petitioner’s claim, the petitioner made an initial showing that the City was not prejudiced by her delay in serving a notice of claim … . Matter of Tejada v City of New York, 2018 NY Slip Op 03370, Second Dept 5-9-18

​MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, MUNICIPAL LAW, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, NOTICE OF CLAIM, CITY WAS NOTIFIED OF THE ESSENTIAL FACTS OF PETITIONER’S CLAIM BY A TIMELY NOTICE OF CLAIM FILED BY THE OTHER PARTY IN THIS TRAFFIC ACCIDENT CASE, PETITIONER’S REQUEST TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT))

/ ,

FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings necessary to allow petitioner-mother to seek special immigrant juvenile status (SIJS) for her son:

Based upon our independent factual review, we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the granting of the mother’s guardianship petition …  Moreover, the child’s father is deceased and, therefore, reunification is not possible … . We further find that it would not be in the child’s best interests to be returned to Honduras, given the hearing evidence establishing that there is no one there who is able to care for him, and that the child was threatened with violence if he returned. Matter of Denia M. E. C. v Carlos R. M. O., 2018 NY Slip Op 03355, Second Dept 5-9-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))

/ ,

NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined a psychological exam of mother should not have been ordered prior to a fact-finding hearing in this neglect proceeding. The court had no indication mother suffered from mental illness:

… [T]he Suffolk County Department of Social Services (hereinafter the petitioner) filed a neglect petition against the mother, alleging, among other things, that she failed to “work cooperatively with the appropriate agencies” to ensure that the subject child, whom the mother reported to have been sexually abused, “would receive appropriate counseling and services.” The petitioner also alleged that the mother failed “to take any action to ensure that [the child] was being adequately and appropriately cared for by his father,” who was alleged to be abusive toward the child. The mother consented to the temporary removal of the child. Thereafter, prior to a fact-finding hearing, the petitioner requested that the mother be directed to submit to a psychological examination. …

The determination whether to direct a psychological examination is within the sound discretion of the Family Court … . Under the circumstances of this case, it was an improvident exercise of discretion for the Family Court to direct the mother to submit to a psychological examination prior to a fact-finding hearing. The record is devoid of any indication that the mother may suffer from a mental illness. Nor did the petition contain any allegations which placed the mother’s mental health at issue … . Matter of Tyriek J. (Tamika J.), 2018 NY Slip Op 03361, Second Dept 5-9-18

​FAMILY LAW (NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/NEGLECT (FAMILY LAW, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/PSYCHOLOGICAL EXAM (FAMILY LAW, NEGLECT, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))

/

ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT).

The Second Department determined Family Court properly denied father’s petitions for registration and enforcement of a California custody order. Mother, who was living in Israel, had acquired an Israeli court order modifying the California order. The Israeli order was registered in New York and father was notified of the application for registration. Father had 20 days to contest and failed to do so:

Domestic Relations Law § 77-d provides for the registering, and contesting, of an out-of-state custody decree. Upon receipt of the child custody determination to be registered, the New York court is obligated to serve notice upon the affected persons and provide them with an opportunity to contest the registration (see Domestic Relations Law § 77-d[2][b]). The statute provides that “[a] person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice” (Domestic Relations Law § 77-d[4]). At the hearing, the court “shall confirm the registered order” unless the person contesting registration establishes that (a) the issuing court did not have jurisdiction, (b) the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so, or (c) the person contesting registration was entitled to, but did not receive, notice in the underlying proceedings before the court that issued the order for which registration is sought (Domestic Relations Law § 77-d[4]). If no timely contest is made, “the registration is confirmed as a matter of law” (Domestic Relations Law § 77-d[5]). “Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” … . Matter of Worsoff v Worsoff, 2018 NY Slip Op 03373, Second Dept 5-9-18

​FAMILY LAW (CUSTODY, OUT OF STATE ORDERS, ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT))/CUSTODY (FAMILY LAW, OUT OF STATE ORDERS, REGISTRATION, ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT))

/ , ,

CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the city’s decision to layoff firefighters was not arbitrable under a collective bargaining agreement. The Civil Service Law vests nondelegable discretion to hire and fire in the public corporation:

… [A] dispute is nonarbitrable if a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided by arbitration … . Put differently, a court must stay arbitration where it can conclude, upon the examination of the parties’ contract and any implicated statute on their face, “that the granting of any relief would violate public policy” … .

Addressing the union’s claim regarding the layoffs of the firefighters, Civil Service Law § 80(1) provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others—what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public … . In the absence of bad faith, fraud, or collusion, that discretion “is an undisputed management prerogative” for the public’s benefit, and cannot be altered or modified by agreement or otherwise… . Thus, arbitration of the claim regarding the layoffs of the firefighters would violate public policy. Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Second Dept 5-9-18

​EMPLOYMENT LAW (CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/MUNICIPAL LAW (FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/CIVIL SERVICE LAW (FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/ARBITRATION (MUNICIPAL LAW, CIVIL SERVICE LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/UNIONS (MUNICIPAL LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/COLLECTIVE BARGAINING AGREEMENTS (MUNICIPAL LAW, CIVIL SERVICE LAW, FIREFIGHTERS, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/FIREFIGHTERS (EMPLOYMENT LAW, COLLECTIVE BARGAINING AGREEMENT, ARBITRATION, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))/PUBLIC POLICY (MUNICIPAL LAW, ARBITRATION, CITY’S DECISION TO LAYOFF FIREFIGHTERS IS NOT ARBITRABLE UNDER A COLLECTIVE BARGAINING AGREEMENT, PUBLIC POLICY VESTS NONDELEGABLE DISCRETION TO HIRE AND FIRE IN THE PUBLIC CORPORATION (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy