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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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THE LABOR LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION ALLOWING A WORKER TO SUE FOR LIQUIDATED DAMAGES, PREJUDGMENT INTEREST, AND ATTORNEY’S FEES BECAUSE THE WORKER WAS PAID BIWEEKLY, NOT WEEKLY AS REQUIRED BY LABOR LAW 191 (SECOND DEPT).

The Second Department, disagreeing with the First Department, over a partial dissent, determined that Labor Law 191, entitled “Frequency of payments,” does not create a private right of action which would allow an employee, who was fully paid, to sue for liquidated damages, prejudgment interest and attorney’s fees because the employee was paid “biweekly,” not “weekly” as required by the statute:

… {The] … legislative history reveals that Labor Law § 198(1-a) was aimed at remedying employers’ failure to pay the amount of wages required by contract or law. There is no reference in the legislative history of Labor Law § 198 to the frequency or timing of wage payments, and nothing to suggest that the statute was meant to address circumstances in which an employer pays full wages pursuant to an agreed-upon, biweekly pay schedule that nevertheless does not conform to the frequency of payments provision of law.

[W]e conclude that Labor Law § 198 does not expressly provide for a private right of action to recover liquidated damages, prejudgment interest, and attorneys’ fees where a manual worker is paid all of his or her wages biweekly, rather than weekly, in violation of Labor Law § 191(1)(a). Grant v Global Aircraft Dispatch, Inc., 2024 NY Slip Op 00183, Second Dept 1-17-24

Practice Point: The Labor Law does not provide a private right of action allowing a worker to sue for liquidated damage, prejudgment interest and attorney’s fees because the worker was paid biweekly, not weekly as required by Labor Law 191.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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TEACHERS EMPLOYED AT STATE CORRECTIONAL FACILITIES WORKED FROM SEPTEMBER TO JUNE BUT WERE PAID AN ANNUAL SALARY; WHEN EXTRA SUMMER WORK WAS CANCELLED DUE TO COVID THEY APPLIED FOR UNEMPLOYMENT INSURANCE BENEFITS; BECAUSE THEY WERE NOT UNEMPLOYED THEY WERE NOT ENTITLED TO BENEFITS (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Egan. affirming the Unemployment Insurance Appeal Board, determined claimants, who worked as teachers at state correctional facilities from September through June but were paid an annual salary, were not entitled to unemployment insurance benefits for the additional summer employment which was not available due to COVID. The fact that the claimants could elect to either be paid every month or only during the school year was not determinative. The claimants had an “annual” salary and therefore were not unemployed during the summer:

Under state law, regular unemployment insurance benefits require total unemployment …, which is defined as “the total lack of any employment on any day” (Labor Law § 522 [emphasis added]). “Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence” … . In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law § 136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the “annual salary” for those employees may be paid over 10 months or 12 months … . If they are required to work outside of the academic year, they must receive “additional compensation” beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess … .

The fact that optional, additional work was not available over the summer of 2020, as it had been in prior years, does not change the analysis or conclusion that claimants remained employed over the summer recess, i.e., they were not totally unemployed … . Matter of Almindo (New York State Dept. of Corr. & Community Supervision–Commissioner of Labor), 2023 NY Slip Op 06424, 3rd Dept 12-14-23

Practice Point: Teachers who are paid an annual salary, even if paid September through June, are not unemployed during the summer. Therefore, if additional summer work becomes unavailable (due to COVID for example), the teachers are not entitled unemployment benefits for the summer months.

 

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​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE NYS HUMAN RIGHTS LAW; PLAINTIFF’S SECOND COMPLAINT STATED A CAUSE OF ACTION UNDER THE SAME STATUTE; THE SECOND COMPLAINT WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for employment discrimination under the New York State Human Rights Law (NYSHRL). Plaintiff had filed a prior complaint which was properly dismissed for failure to state a cause of action. Plaintiff then filed the instant complaint under the same statute by on different grounds. The instant complaint was not precluded the the doctrine of res judicata:

… [T]his cause of action was not barred by the doctrine of res judicata. That doctrine “precludes a party from relitigating a claim that has been finally adjudicated on the merits” …  “Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” … . The first cause of action alleged in the present complaint was distinct from that alleged in the prior action, the latter of which was based upon an alleged failure of the defendants, among others, to provide a reasonable accommodation in the form of certain medical leave, as well as retaliation for engaging in a protected activity. Thus, the dismissal of those causes of action under CPLR 3211(a)(7) did not bar the first cause of action asserted in the present complaint. Duchemin v Village of E. Hampton, 2023 NY Slip Op 06350, Second Dept 12-13-24

Practice Point: Here the first complaint alleging employment discrimination was dismissed for failure to state a cause of action. That is not considered a dismissal on the merits. Therefore the second employment-discrimination complaint, brought under the same body of law, was not precluded by the doctrine of res judicata.

 

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THE UNION’S CHALLENGE TO THE DEDUCTION OF THE COST OF HEALTH INSURANCE FROM A VILLAGE POLICE OFFICER’S PAYCHECK WAS A BREACH-OF-CONTRACT ACTION FOR WHICH THE STATUTE OF LIMITATIONS BEGAN RUNNING ANEW FOR EACH PAYCHECK (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the action by the union on behalf of a village police officer challenging the deduction of health insurance costs from each paycheck was a breach-of-contract action and the statute of limitations began running anew for each paycheck:

Teamsters Local 445 (hereinafter the Union) filed a demand for arbitration of a grievance against the Village of Maybrook alleging that the Village breached the parties’ collective bargaining agreement (hereinafter CBA) by deducting a certain amount from each paycheck of Sergeant Michael Maresca for health insurance costs. The Supreme Court granted the Village’s petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR article 78 proceedings. The principal issues raised on this appeal are (1) whether the underlying claim is in the nature of CPLR article 78 seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck. … [W]e determine that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. Since the statute of limitations began anew as to each breach, we find that the claim to be arbitrated was not wholly time-barred. We therefore modify the order appealed from by … granting the Union’s cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred. Matter of Village of Maybrook v Teamsters Local 445, 2023 NY Slip Op 06051, Second Dept 11-22-23

Practice Point: Here the union’s challenge to the deduction of the cost of health insurance from a village police officer’s paycheck was governed by the six-year statute of limitations for a breach of contract action, not the four-month statute of limitations for an Article 78 proceeding. The statute began running anew for each paycheck.

 

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PETITIONER, THE PRESIDENT AND MAJORITY STOCK HOLDER OF A CONSTRUCTION COMPANY, WAS THE “PERSON RESPONSIBLE” FOR COLLECTING AND PAYING EMPLOYEE WITHHOLDING TAXES; TWO-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, affirming the New York State Tax Tribunal and the Appellate Division, determined petitioner, the president and majority shareholder of a construction company, was the person responsible for the collection and payment of employee withholding taxes:

… [P]etitioner and the dissenters argue that the Tribunal employed an incorrect legal test in making its determination, under Tax Law § 685 (g), that petitioner was a person responsible for the collection and payment of employee withholding taxes on behalf of New England Construction Company, Inc. (NECC), a corporation of which petitioner was president and the majority shareholder, and on behalf of which petitioner had repeatedly held himself out as being responsible for payment of taxes. We conclude that the Tribunal committed no such error. Rather, in resolving the question before it, the Tribunal properly considered whether petitioner had the actual authority and effective power to pay the withholding taxes and, thus, was a “responsible person” under section 685. Moreover, substantial evidence supports the Tribunal’s determination that petitioner willfully failed to pay the withholding taxes. * * *

Under Tax Law § 685 (g), a person may be held liable for the withholding taxes of a corporation if the person is “required to collect, truthfully account for, and pay over the tax imposed” and “willfully fails to collect such tax or . . . willfully attempts in any manner to evade or defeat the tax or the payment thereof.” … [S]ection 685 (g) essentially provides that “a person responsible for collecting and paying taxes withheld from employees’ wages is liable for a 100% civil penalty if [that person] willfully fails to collect and pay over the tax” … . Such a responsible person includes “an officer or employee of a corporation . . . who . . . is under a duty to perform the act in respect of which the violation occurs” … . Under the broad terms of this definition, more than one person can be a responsible person under Tax Law § 685 … . Because section 685 (g) was modeled after 26 USC § 6672 (a) … , the terms in the former are to be interpreted in conformity with the latter unless a different meaning is clearly required … . Matter of Black v New York State Tax Appeals Trib., 2023 NY Slip Op 05961, CtApp, 11-20-23

Practice Point: Tax Law 685 makes the “person responsible” for the collection and payment of employee withholding taxes civilly liable for failure to pay the tax.

 

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THE LOCAL LAW CREATING THE POLICE ACCOUNTABILITY BOARD (PAB) WITH THE POWER TO DISCIPLINE POLICE OFFICERS CONFLICTED WITH THE POLICE UNION’S COLLECTIVE BARGAINING AGREEMENT (CBA); BECAUSE THE UNION NEVER AGREED TO THE TRANSFER OF DISCIPLINARY POWERS TO THE PAB, THE LOCAL LAW WAS INVALID (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Egan, affirming the Appellate Division, over a three-judge dissent, determined the Local Law creating a Police Accountability Board (PAB) with the power to discipline police officers was invalid because the law conflicted with the union’s (the Locust Club’s)  collective bargaining agreement (CBA) and the union had never agreed to the change:

Since the 1980s, the collective bargaining agreement (hereinafter CBA) in place between the City of Rochester and the Rochester Police Locust Club, Inc. (hereinafter the Locust Club), the union representing police officers in the City, has governed the procedure for disciplining police officers. In 2019, the Council of the City of Rochester adopted, the Mayor of the City of Rochester signed, and voters approved via referendum, Local Law No. 2, which created the Police Accountability Board (hereinafter PAB), a body of nine City residents whose powers included the exclusive authority to “investigate and make determinations respecting” any police officer accused of misconduct. That authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty. The City’s police chief was free to impose additional punishment upon that officer, but was obliged at a minimum to implement the sanction determined by the PAB.

There is no dispute that the disciplinary procedures set forth in Local Law No. 2 deviated in significant respects from the agreed-upon procedures set forth in the CBA then in effect and that they were not agreed to by the Locust Club. The Locust Club and others commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge Local Law No. 2 and, in particular, its transfer of police disciplinary authority to the PAB. Supreme Court ultimately granted the petition in part and held, among other things, that Local Law No. 2 was invalid to the extent that it transferred that authority. Upon the City Council’s appeal, the Appellate Division affirmed … . The Appellate Division held that the City was obliged to negotiate with the Locust Club on the issue of police discipline because in 1985 it had repealed the provision of its charter vesting a local official in charge of the police force with unilateral authority over police discipline and that the City’s effort to revive that authority in Local Law No. 2 necessarily failed under the Municipal Home Rule Law because it was inconsistent with a general law, namely, “the Taylor Law’s mandate of collective bargaining for police discipline” … .  Matter of Rochester Police Locust Club, Inc. v City of Rochester, 2023 NY Slip Op 05959, CtApp 11-21-23

Practice Point: The Local Law creating the Police Accountability Board (PAB) and granting the PAB the power to discipline police officers conflicted with disciplinary provisions in the police union’s collective bargaining agreement (CBA). Because the union never agreed to the transfer of disciplinary powers to the PAB, the Local Law was deemed invalid.

 

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PETITIONER FIREFIGHTER WAS INJURED WHEN HE BECAME DEHYDRATED DURING TRAINING; HE WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE THE INJURY DID NOT OCCUR AS A RESULT OF AN UNEXPECTED EVENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined petitioner NYC firefighter was not entitled to accidental retirement (ADR) benefits because he was injured performing routine duties and not when responding to an unexpected event. Petitioner suffered an injury to his leg due to dehydration during training:

ADR benefits are awardable only where the individual’s disability was the natural and proximate result of a service-related accident, i.e., “a ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'” … . Petitioner’s injury was the result of an incidental — not accidental — event … because the injury was sustained while petitioner was performing routine duties, not as a result of an unexpected event … . Dehydration suffered by petitioner while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise … . Matter of Rivera v Board of Trustees of N.Y. Fire Dept., 2023 NY Slip Op 05379, First Dept 10-24-23

Practice Point: Here a NYC firefighter was injured during training, not as a result of an “unexpected event.” Therefore he was not entitled to accidental disability retirement benefits.

 

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PLAINTIFF’S EMPLOYER, VERIZON, THREATENED LEGAL ACTION BASED UPON A NON-COMPETE AGREEMENT SIGNED BY PLAINTIFF IF PLAINTIFF RESIGNED TO WORK FOR WARNERMEDIA; PLAINTIFF’S TORTIOUS-INTERFERENCE-WITH-PROSPECTIVE-BUSINESS-RELATIONS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employer (Verizon) was entitled to summary judgment dismissing the tortious-interference-with-prospective-business-relations cause of action. Plaintiff signed a non-compete agreement. When Verizon learned of plaintiff’s plan to resign and work for WarnerMedia Verizon warned plaintiff that resigning would lead to legal action:

Although plaintiff contends that Verizon wrongfully threatened litigation against him to enforce the noncompete provision, the “wrongful means” element of the cause of action is satisfied only where the threatened lawsuit is frivolous … . In light of the above facts, and considering that Verizon has successfully enforced a similar noncompete provision in the past … , there was an objectively reasonable basis to believe that the provision in its agreement with plaintiff was enforceable. …

Furthermore, the record does not support plaintiff’s argument that Verizon took its legal position solely out of a personal dislike for plaintiff, or solely by a desire to harm him … . On the contrary, the record shows that Verizon’s actions were motivated by economic self-interest … . Lucas v Verizon Communications, Inc., 2023 NY Slip Op 05190, First Dept 10-12-23

Practice Point: In order to support a tortious-interference-with-prospective-business-relations cause of action plaintiff must prove the employer’s threatened action was “wrongful” and was motivated solely by a desire to harm plaintiff. Here the employer threatened only to take legal action to enforce a non-compete agreement. The tortious-interference cause of action should have been dismissed.

 

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