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UNDER THE JONES ACT OHIO HAD JURISDICTION TO APPOINT ADMINSTRATORS OF THE ESTATE OF DECEDENT WHO ALLEGEDLY DIED OF EXPOSURE TO ASBESTOS ON MERCHANT MARINE SHIPS; THE NEW YORK EXECUTOR OF THE ESTATE WAS TIMELY AND PROPERLY SUBSTITUTED FOR THE OHIO ADMINISTRATORS (FIRST DEPT).

The First Department, over a dissent, in a complex decision which cannot be fairly summarized here, determined: (1) under the Jones Act Ohio had jurisdiction to appoint administrators for decedent who allegedly died from asbestos exposure on merchant marine ships where he was employed; and (2) substitution of a New York personal representative, executor of the estate, was proper and timely:

… [T]he Jones Act provides that when a seaman dies from an employment injury “the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer” (46 USC § 30104).

The Jones Act grants a right of action to the personal representative “without other description” … . The Act does not require that the personal representative be either “a domiciliary or ancillary administrator” … . A domiciliary administrator has standing to file a Jones Act or FELA [Federal Employers’ Liability Act] lawsuit in another state … . However, nothing “explicitly clothes a domiciliary administrator with the exclusive right to maintain such an action” because such a requirement is inconsistent with “the remedial nature” of FELA and the “representative character” of such a suit … .

Notably, the personal representative’s authority under the Jones Act derives from “a federal statutory right and power given to carry out the policy of the federal statutes” and “is not limited to the confines of the State where he was appointed but is co-extensive with general federal jurisdiction” … . Bartel v Maersk Line, Ltd., 2023 NY Slip Op 02058, First Dept 4-20-23

Practice Point: Under the Jones Act, the estate of a merchant-marine employee who died from exposure to asbestos on the employer’s ships may sue the employer. Here the suit was deemed properly started by administrators appointed by an Ohio court and the New York executor was properly and timely substituted for the Ohio administrators.

See also the companion decision: Bartel v Farrell Lines, 2023 NY Slip Op 02057, First Dept 4-20-23

 

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ALTHOUGH THE REQUIREMENTS FOR THE CONTENTS OF A CLAIM AGAINST THE STATE IN COURT OF CLAIMS ACT SECTION 11 ARE STRICT AND JURISDICTIONAL, THE CLAIMANT IS NOT REQUIRED TO ALLEGE EVIDENTIARY FACTS (SECOND DEPT).

​The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act proceeding sufficiently stated the nature of the claim. The claimant alleged he was sexually abused in state-run foster homes every week for two years (1994 – 1996}. The claim alleged negligent hiring, retention or supervision:

The only reason identified by the Court of Claims in the order appealed from, and by the defendant on appeal, for concluding that the claim failed to state the nature of the claim is that, while the claim included an allegation that the defendant had actual or constructive notice of the alleged sexual abuse, it did not supply any “details” as to how the defendant received notice of the alleged abuse. Although the requirements of Court of Claims Act § 11(b) are strict, and jurisdictional in nature, the fact remains that the claim is a pleading, the contents of which are merely allegations. As the defendant correctly contends, “[a] necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Nonetheless, “[c]auses of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity” ,,, . The manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, “the plaintiff need not allege his [or her] evidence” … . Martinez v State of New York, 2023 NY Slip Op 01990, Second Dept 4-19-23

Practice Point: A claim (i.e., the pleading) against the state must meet the strict, jurisdictional “contents” requirements in Court of Claims Act section 11. But the claim is merely a pleading and need not allege evidentiary facts to survive a motion to dismiss.

 

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IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the employees were restricted to worker’s compensation benefits in this construction-accident action against their employers and the other defendants were precluded from seeking contribution and indemnification from the employers:

Workers’ Compensation Law § 11(1) precludes recovery by “any third person” against “[a]n employer” for contribution or indemnity “for injuries sustained by an employee acting within the scope of his or her employment” unless the employee “has sustained a ‘grave injury'” or there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.” Despite this clear directive, the Supreme Court, relying on this Court’s decision in Baten v Northfork Bancorporation, Inc. (85 AD3d 697), permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten, no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.* * *

… [W]e hold that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the WCB [Workers’ Compensation Board] to be the plaintiff’s employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify.  Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 2023 NY Slip Op 02025, Second Dept 4-19-23

Practice Point: If the Workers’ Compensation Board determined a defendant in a construction-accident action was plaintiff’s employer, absent a “grave” injury or the employer’s agreement to contribute or indemnify, the plaintiff’s recovery is restricted to Workers’ Compensation benefits and there can be no recovery for contribution or indemnification against the employer by other defendants.

 

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UNDER THE NEW YORK CITY HUMAN RIGHTS LAW, PLAINTIFF NEED NOT DEMONSTRATE AN ADVERSE EMPLOYMENT ACTION TO RECOVER FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination action under the NYC Human Rights Law (City HRL) should not have been dismissed:

Since “[t]he City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species of sex- or gender-based discrimination” … , it was error to grant summary judgment dismissing plaintiff’s gender discrimination claim, while denying the motion with respect to the hostile work environment and sexual harassment claim. Moreover, plaintiff need not show an adverse employment action in order to establish a prima facie case of gender discrimination under the City HRL … . On this motion for summary judgment dismissing a claim under the City HRL, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable for gender-based discrimination … . Here, plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor’s sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated “less well” based on her gender … . Bond v New York City Health & Hosps. Corp., 2023 NY Slip Op 01939, First Dept 4-13-23

Practice Point: Under the New York City Human Rights Law a plaintiff need only show she was treated “less well” based on her gender. No adverse employment action is required.

 

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COURTS HAVE ONLY A LIMITED POWER TO REVIEW AN ARBITRATOR’S RULING; HERE SUPREME COURT SHOULD NOT HAVE FOUND THE ARBITRATOR EXCEEDED HER AUTHORITY BY ORDERING BACK PAY FOR A REINSTATED COUNTY EMPLOYEE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the arbitrator in this employment dispute did not exceed her authority when she ordered that the employee be reinstated with back pay. The employee had been absent from work and the employer (the county) the absence a voluntary resignation. Supreme Court had affirmed the employee’s reinstatement but found the arbitrator had exceeded her authority by ordering the back pay:

… “[J]udicial review of arbitral awards is extremely limited. Pursuant to CPLR 7511 (b) (1), a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator’s power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact” … . “[I]t is well settled that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself” … .

We discern no basis to vacate the arbitrator’s award as to back pay and benefits. Notably, the CBA [collective bargaining agreement] does not contain “a specifically enumerated limitation on the arbitrator’s power” … . In fact, it does not explicitly limit the arbitrator’s authority in any way other than stating that the arbitrator does not have the power to “amend, modify or delete any provision of the CBA,” which does not set any limitations on the arbitrator’s power to order the remedy that he or she sees fit … . Matter of County of Albany (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Albany County Local 801), 2023 NY Slip Op 01828, Third Dept 4-6-23

Practice Point: Here the arbitrator ordered a county employee reinstated with back pay. Supreme Court held the arbitrator exceeded her powers by ordering back pay. The Third Department noted the courts’ limited review powers re: arbitration rulings and found no basis for concluding the arbitrator had exceeded her powers.

 

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PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule:

Even though plaintiff admitted that she was prepared for the intensive, para-military nature of an academy, she testified that she was not prepared for the humiliation based on the discriminatory conduct that was “singling [her] out by [her] age.” Despite that many of defendant’s witnesses — including the drill sergeant — did not have a recollection of the alleged discriminatory conduct, the Equal Employment Opportunity Commission still had determined that there was reasonable cause to believe that defendant discriminated against plaintiff; such finding, although not dispositive, is some evidence of discrimination … . Given that the conduct spread beyond staff and plaintiff’s trainee class, but also to members of a previous class, further demonstrates the pervasive nature of the alleged discriminatory conduct — particularly in such a short period before plaintiff’s resignation. Accordingly, based on the foregoing, particularly plaintiff’s account of the drill sergeant’s conduct and the candid admissions by the administrative sergeant as to the objective nature of the comments being discriminatory … , we are satisfied that this proof, when viewed in a light most favorable to plaintiff, is sufficient to survive summary judgment and warrant a trial on plaintiff’s hostile work environment claim … .  White-Barnes v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 01561, Third Dept 3-23-23

Practice Point: Plaintiff was hired as a corrections officer at age 61. At the training academy she was called “Grandma” and ridiculed. She resigned after two days. The Third Department held the complaint stated an age-discrimination/hostile-work-environment cause of action and should not have been dismissed.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT SUIT AGAINST THE STATE SUFFICIENTLY ALLEGED WHEN THE ABUSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing (modifying) the Court of Claims in this Child Victims Act (CVA) suit, determined the notice of claim sufficiently alleged the time when the alleged sexual abuse of claimant took place in a state psychiatric center. The court noted that the respondeat superior cause of action should be dismissed because any sexual abuse by a state employee would not be within the scope of employment as a matter of law:

… [T]he Court of Claims incorrectly determined that the claimant was required to allege the exact date on which the sexual abuse occurred … . The claimant’s allegations, including that the abuse occurred in 1993 while she was 14 years old and attending a gym class at Sagamore, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) in this claim brought pursuant to the CVA … . Wagner v State of New York, 2023 NY Slip Op 01546, Second Dept 3-22-23

Practice Point; Here in this Child Victims Act suit, the allegation that the sexual abuse took place in 1993, when claimant was 14 and attending gym class met the “time when” requirement for a notice of claim.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR UNPAID OVERTIME WITHOUT SPECIFYING PARTICULAR DATES OR WEEKS; AFFIDAVITS ARE NOT DOCUMENTARY EVIDENCE WHICH WILL SUPPORT A “DOCUMENTARY EVIDENCE” MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for unpaid overtime wages pursuant to the Labor Law and the proof submitted by defendant did not support a motion to dismiss based on documentary evidence:

Plaintiffs’ complaint sufficiently states a claim for unpaid overtime wages in violation of Labor Law §§ 191 and 663 and 12 NYCRR 142-2.2 … . Plaintiffs allege that they were not compensated for hours spent before and after their shift, loading company vehicles and receiving job assignments, before traveling to construction sites throughout the New York City region … . Although the complaint does not contain the particular dates or weeks that plaintiffs were allegedly underpaid, it provides sufficient notice of their causes of action for unpaid wages and overtime based on pre-shift and post-shift work performed at defendant’s yard … .

In addition, defendant’s documentary evidence is insufficient to support a motion to dismiss under CPLR 3211(a)(1). Dismissal on the basis of documentary evidence is appropriate only if that evidence “utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Affidavits are not documentary evidence that can support a 3211(a)(1) motion … . The documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts began or after their shifts had purportedly ended. Rosario v Hallen Constr. Co., Inc., 2023 NY Slip Op 01490, First Dept 3-21-23

Practice Point: Here the complaint stated a cause of action for unpaid overtime despite the absence of specific dates or week when plaintiffs were allegedly underpaid.

Practice Point: A motion to dismiss based on documentary evidence is not supported when the documents are affidavits.

 

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PETITIONER OPERATED HIS BARBER SHOP OUT OF HIS HOME IN MARCH 2020 AFTER THE GOVERNOR ORDERED BARBER SHOPS CLOSED DUE TO COVID-19; REVOCATION OF PETITIONER’S BARBER LICENSES WAS DEEMED TOO SEVERE A PENALTY; THERE WAS A DISSENT (THIRD DEPT). ​

The Third Department, over a dissent, determined the revocation of petitioner’s barber operator license and barber shop license was too severe a penalty for violating the state’s COVID-19 policy in early 2020. After the governor ordered barber shops closed due to COVID, petitioner opened his barber shop in his home in March 2020. He closed his home operation in May 2020 when he was hospitalized with COVID:

The Secretary is empowered to impose a range of penalties for a barber’s misconduct, with a reprimand being the least severe, then a fine of up to $500, then license suspension and, most seriously, license revocation (see General Business Law §§ 441 [a]; 443). As noted above, petitioner has been a licensed barber since 1963 and, before the proceedings at issue here, had a clean disciplinary record for nearly six decades. The ALJ found that petitioner “sincerely believed” that he was entitled to reopen his shop in March 2020 and was remorseful for having done so, as well as that he did not knowingly work while suffering from COVID-19. Further, although petitioner failed to operate in accordance with COVID-19 guidelines after he was permitted to reopen, it appears that such resulted from his lack of familiarity with the particulars of the guidelines, and it must be noted that those guidelines and other COVID-19 restrictions had been lifted by the time of the Secretary’s determination … . It is accordingly unclear how petitioner’s conduct during the COVID-19 emergency would pose an ongoing threat to the public that would warrant the maximum sanction of permanently barring him from performing the work he had otherwise done without incident for almost 60 years. “Under these circumstances, and considering petitioner’s otherwise unblemished record, revocation was too severe a penalty,” and we therefore “remit to [the Secretary] to impose a less severe penalty” … . Matter of Lalima v New York State Dept. of State, 2023 NY Slip Op 01121, Third Dept 3-2-23

Practice Point: Here revocation of petitioner’s barber licenses was deemed too severe a penalty. After the governor ordered barber shops closed in March 2020 due to COVID, petitioner continued cutting hair in his home.

 

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THE CHALLENGES TO THE PROCEDURES FOR RELIGIOUS AND MEDICAL EXEMPTIONS FROM THE COVID-19 VACCINE MANDATE FOR NYC TEACHERS, AS WELL AS “LEAVE WITHOUT PAY” FOR THOSE WHO DID NO APPLY FOR AN EXEMPTION, WERE PROPERLY REJECTED (FIRST DEPT).

The First Department, over a dissent, determined the COVID-19 vaccine mandates imposed by the arbitrator for NYC Department of Education (DOE) employees properly survived the hybrid Article 75/78 challenge. The arbitration initiated by the United Federation of Teachers (UFT) resulted in the September 10, 2021 Impact Award which established procedures for religious and medical exemptions:

The article 75 claims were properly dismissed, as petitioners lack standing to challenge the Impact Award and failed to join UFT as a necessary party. The article 75 claims also fail on the merits. As to the article 78 claims, petitioners are unable to show that DOE made an error of law or acted irrationally. * * *

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE’s COVID-19 Vaccine Mandate. They were informed that they could not report to their school sites as of Monday, October 4, and that, in order to return to work, they were required to upload proof of having received the first vaccine shot and “E-sign the attestation stating that you are willing to return to your worksite within seven calendar days of submission.” The notifications also summarized the options for separation and leave extensions. Petitioners, with the exception of Loiacono, did not submit proof of vaccination or request religious or medical exemptions. * * *

When a union represents employees during arbitration, only that union — not individual employees — may seek to vacate the resulting award … .

Petitioners also failed to join UFT as a party. UFT advocated successfully for the exemptions, accommodations, and extended benefits for teachers otherwise unwilling to be vaccinated, all of which were prescribed in the Impact Award. Accordingly, UFT would be adversely impacted by a judgment favorable to petitioners and is thus a necessary party (CPLR 1001[a] …). Matter of O’Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2023 NY Slip Op 00957, First Dept 2-21-23

Practice Point: The individual NYC Department of Education (DOE) employees did not have standing to challenge the results of the COVID-19 vaccine-mandate arbitration initiated by the United Federation of Teachers (UFT). The UFT was a necessary party to the challenge but was not made a party. The DOE did not act arbitrarily or capriciously. Essentially the procedures for religious and medical exemptions to the vaccine mandate were upheld. Teachers who did not apply for an exemption and were not vaccinated were deemed properly placed on leave without pay (LWOP).

 

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