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THE TERMINATED SCHOOL EMPLOYEE’S PETITION FOR REINSTATEMENT WAS PROPERLY DISMISSED FOR FAILURE TO TIMELY SERVE A NOTICE OF CLAIM AS REQUIRED BY THE EDUCATION LAW; ALTHOUGH PETITIONER NOTIFIED THE SCHOOL DISTRICT’S SUPERINTENDENT AND THE BOARD OF EDUCATION WAS AWARE OF THE ACTION, FAILURE TO SERVE THE BOARD WAS A FATAL DEFECT (SECOND DEPT).

The Second Department determined the terminated school-district employee’s petition seeking reinstatement was properly dismissed because notice of the action was served on the school district’s superintendent, not the board of education as required by the Education Law:

… [T]he petitioner failed to present his purported notice of claim to the governing body, namely, the Board (see Education Law § 3813[1] …). The letter that the petitioner contends constituted his notice of claim was sent to the School District’s Superintendent, which did “not constitute service upon the Board” … . The petitioner did not submit an affidavit of service or any other evidence to demonstrate that he had in fact served or presented his letter to the governing body … . That the Board ultimately obtained actual knowledge of the letter from the Superintendent’s office was of no moment … . The petitioner’s failure to present his purported notice of claim to the governing body was “a fatal defect” … . Matter of Jovasevic v Mount Vernon City Sch. Dist., 2020 NY Slip Op 04839,  Second Dept 9-2-20

 

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PLAINTIFF ENTITLED TO UNPAID SALARY, PREJUDGMENT INTEREST AND ATTORNEYS FEES PURSUANT TO LABOR LAW 198 AND CPLR 5001 IN THIS BREACH-OF-A-WRITTEN-EMPLOYMENT-CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to salary, prejudgment interest and attorney’s fees stemming from plaintiff’s employer’s breach of a written employment agreement:

Pursuant to CPLR 5001 et seq., the plaintiff is entitled to such statutory prejudgment interest based on the defendant’s breaches of the written agreement. Moreover, contrary to the defendant’s contention, the plaintiff’s unpaid wages … and the severance wages fall within the definition of wages as set forth in Labor Law § 190(1) … . Therefore, such wages are protected by the provisions set forth in Labor Law § 193 and fall within the ambit of remedies provided by Labor Law § 198 … . * * *

… [F]or the same reasons that the plaintiff is entitled to prejudgment interest, the plaintiff also established his entitlement to judgment as a matter law on so much of the second cause of action as sought an award of reasonable attorney’s fees under Labor Law § 198(1-a) … . Gertler v Davidoff Hutcher & Citron , 2020 NY Slip Op 04731, Second Dept 8-26-20

 

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PLAINTIFF AT-WILL EMPLOYEE WAS ENTITLED TO COMMISSIONS EARNED ON HIS ACCOUNTS BEFORE, BUT NOT AFTER, PLAINTIFF WAS TERMINATED; ALTHOUGH THE EMPLOYMENT CONTRACT WAS ORAL, IT WAS NOT SUBJECT TO THE STATUTE OF FRAUDS UNTIL AFTER PLANTIFF WAS TERMINATED. (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff, an at will employee, was not entitled to commissions on sales to any account generated by plaintiff earned after plaintiff was terminated. Although the employment contract was oral, it was not subject to the statute of frauds until after plaintiff was terminated:

General Obligations Law § 5-701 (a) (1) provides that “[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [b]y its terms is not to be performed within one year from the making thereof.” “Only those agreements which, by their terms, have absolutely no possibility in fact and law of full performance within one year’ will fall within the statute of frauds” … .

Here, plaintiff was an at-will employee of defendant, and “an at-will employment . . . is capable of being performed within one year despite the fact that compensation remains to be calculated beyond the one-year period” … . We therefore reject defendant’s contention that the court erred in denying its motion with respect to plaintiff’s claim for payment of commissions fixed and earned during the course of plaintiff’s employment with defendant … .

… [T]he court erred in denying [defendant’s] motion [for summary judgment] with respect to plaintiff’s claim for “commissions on sales to any accounts generated by [plaintiff] on a future and ongoing basis including post-termination of [plaintiff’s] employment,” i.e., the claim for commissions that would accrue subsequent to the termination of plaintiff’s employment. Although “[a]n oral agreement that is terminable at will is capable of performance within one year and, therefore, does not come within the Statute of Frauds . . . [,] General Obligations Law § 5-701 (a) (1) bars enforcement of a promise to pay commissions that extends indefinitely, dependent solely on the acts of a third party and beyond the control of the defendant” … . Thus, the court erred in denying defendant’s motion with respect to plaintiff’s claim for commissions accruing subsequent to the termination of plaintiff’s employment … . Bermel v Vital Tech Dental Labs, Inc., 2020 NY Slip Op 04666, Fourth Dept 8-20-20

 

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IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding that the flat-rate pay did not violate the Minimum Wage Order (Wage Order) was not irrational or unreasonable:

On March 26, 2019, the Court of Appeals reversed this Court’s decision and order, concluding that the DOL’s interpretation of the Wage Order did not conflict with the promulgated language and was not irrational or unreasonable … . The Court of Appeals remitted the matter to this Court to determine whether the plaintiffs’ class certification motion was properly denied, considering the DOL’s interpretation of the Wage Order as well as alternative bases for class certification asserted by the plaintiffs.

The proponent of a motion for class certification bears the burden of establishing the requirements of CPLR article 9 … . CPLR 901 sets forth five prerequisites to class certification. “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “A class action certification must be founded upon an evidentiary basis” … .

… [I]n light of the DOL’s interpretation of the Wage Order, the plaintiffs have failed to demonstrate entitlement to class certification on the question of whether the defendants violated the law by failing to pay them for all hours of a 24-hour shift. Although a worker must be paid minimum wage for the time he or she is “required to be available for work at a place prescribed by the employer,” under the DOL interpretation of the Wage Order, a worker is not considered to be “available for work at a place prescribed by the employer” during designated meal and sleep breaks, totaling 11 hours of a 24-hour shift … . Moreno v Future Health Care Servs., Inc., 2020 NY Slip Op 04473, Second Dept 8-12-20

 

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MOTION TO VACATE THE NOTE OF ISSUE AND COMPEL DISCOVERY PROPERLY DENIED; MISAPPROPRIATION OF TRADE SECRETS AND BREACH OF A NON-COMPETITION CLAUSE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s motion to vacate the note of issue and compel additional discovery was properly denied because the criteria of 22 NYCRR 202.21 were not met; (2) the misappropriation of trade secrets cause of action re: customer lists was properly dismissed; (3) the misappropriation of trade secrets cause of action re: development of a laser should not have been dismissed; and (4), the breach of the non-competition clause cause of action should not have been dismissed:

The elements of a cause of action to recover damages for misappropriation of trade secrets are: (1) possession of a trade secret; and (2) use of that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means (see Tri-Star Light. Corp. v Goldstein, 151 AD3d 1102, 1106). A trade secret includes any compilation of information which provides the company with an opportunity to obtain an advantage over competitors who do not know or use it … . …

… [T]he plaintiff raised triable issues of fact as to whether the defendant used its trade secrets in the manufacture of particular lasers … . …

A restrictive covenant will not be enforced if it is unreasonable in time, space, or scope  … . Thus, “a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee” … . … [T]he plaintiff raised a triable issue of fact regarding whether the noncompetition clause should be partially enforced. A restrictive covenant may be partially enforced to the extent necessary to protect a company’s legitimate interests … . In particular, “restrictive covenants will be enforceable to the extent necessary to prevent the disclosure or use of trade secrets or confidential customer information” … .  Photonics Indus. Intl., Inc. v Xiaojie Zhao, 2020 NY Slip Op 04330, Second Dept 7-29-20

 

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UNDER THE CIRCUMSTANCES OF THIS CASE, WHETHER THE CONDITIONS PRECEDENT TO ARBITRATION OF A GRIEVANCE REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WERE COMPLIED WITH IS A QUESTION FOR THE COURT, NOT THE ARBITRATOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was for the court, not the arbitrator, to determine whether the conditions precedent for arbitration were met in this action seeking General Municipal Law Section 207-a benefits for an injured firefighter:

… [T]he CBA [collective bargaining agreement] contains conditions precedent to arbitration within the provisions addressing the grievance procedure and … the court should have decided whether the conditions precedent had been met. “Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators,” except in cases involving “a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration” … . Here, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration. Under these circumstances, we conclude that “it was for the court, and not the arbitrator, to decide whether the grievance[] had been timely [served] and completed by the . . . employee at steps one and two of the grievance procedure” … . Therefore, we … remit the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination on the petition to stay arbitration … . Matter of Village of Manlius (Town of Manlius Professional Firefighters Assn., Iaff Local #3316), 2020 NY Slip Op 04251, Fourth Dept 7-24-20

 

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ALTHOUGH NO GENERAL MUNICIPAL LAW NOTICE OF CLAIM NEED BE FILED FOR THE FEDERAL EMPLOYMENT DISCRIMINATION OR THE STATE HUMAN RIGHTS LAW CAUSES OF ACTION, A NOTICE OF CLAIM PURSUANT TO THE SYRACUSE CITY CHARTER WAS REQUIRED FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the federal employment discrimination causes of action and the state Human Rights Law causes of action did not trigger the need to file a notice of claim under General Municipal Law section 50-e and 50-i, but the notice of claim requirement pursuant to the Syracuse City Charter did apply to the Human Rights Law causes of action:

… [T]he issue here is whether plaintiffs were required to file a notice of claim pursuant to the Syracuse City Charter.

We agree with plaintiffs that they did not need to file a notice of claim with respect to their Federal discrimination claims … . …

… [T]he notice of claim provisions of General Municipal Law §§ 50-e and 50-i are inapplicable to State claims under the Human Rights Law … . But that is because Human Rights claims “are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i” … . In contrast, Syracuse City Charter § 8-115 (3) is not limited to tort claims or claims for personal injury. It provides in relevant part that “[n]o action or special proceeding, for any cause whatever, . . . involving the rights or interests of the [C]ity shall be prosecuted or maintained against the [C]ity” unless a notice of claim was served on the City within three months after the accrual of such claim … . The broad language of that notice of claim requirement encompasses plaintiffs’ causes of action under the Human Rights Law … . Blackmon v City of Syracuse, 2020 NY Slip Op 04254, Fourth Dept 7-24-20

 

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FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court. determined a firefighter was not entitled to back pay for the suspension period while awaiting a disciplinary hearing because the firefighter (or his attorney) was responsible for the delay:

Civil Service Law § 75 provides that a public employee may be suspended without pay for a maximum of 30 days while awaiting a hearing on disciplinary charges (see § 75 [3]). Although an employee suspended without pay for a longer period under those circumstances is generally entitled to receive back pay, he or she waives any claim to back pay if a delay in the disciplinary hearing beyond the 30-day maximum is “occasioned by” his or her own conduct … .

We agree with respondents that petitioner is not entitled to reinstatement or back pay because petitioner was solely responsible for the delay. Petitioner’s attorney is an experienced practitioner familiar with Civil Rights Law § 50-a. As such, petitioner’s attorney either knew or should have known that, in order to secure production of the [the disciplinary file of Kelly, another firefighter], section 50-a required that he obtain either Kelly’s consent or a court order. Indeed, respondents publicly announced in multiple press releases several months before the arbitration that Kelly’s file was confidential pursuant to section 50-a. Moreover, petitioner’s attorney had specific knowledge of the contents of the file because he was involved professionally in the investigation of Kelly’s misconduct. Based on that experience and knowledge, petitioner could have taken steps to obtain the file long before the arbitration commenced, such as asking Kelly for his consent or commencing a proceeding to obtain a court order. Because petitioner failed to take any action, “the entire period of delay in holding the hearing resulted from his dilatory tactics” … . Matter of Carcone v City of Utica, 2020 NY Slip Op 04103, Fourth Dept 7-17-20

 

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BECAUSE PETITIONER WAS REINSTATED IN HER JOB AND BACKPAY HAD BEEN PROVIDED FOR THE PERIOD OF WRONGFUL SUSPENSION BY THE TIME THE CONTEMPT HEARING WAS HELD, PETITIONER COULD NOT SHOW SHE HAD BEEN PREJUDICED BY ANY FAILURE TO COMPLY WITH THE RELEVANT ORDER; THEREFORE THE EMPLOYER SHOULD NOT HAVE HELD IN CONTEMPT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s employer (NYS Department of Transportation [DOT}]) should not have been held in contempt for the alleged failure to quickly restore petitioner to the payroll and provide backpay because DOT had fulfilled those directives by the time the contempt hearing was held:

… [W]e conclude that the court erred in granting that part of petitioner’s motion seeking to have the DOT respondents adjudged in contempt of the October 2015 judgment. “A finding of civil contempt must be supported by four elements: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) [i]t must appear, with reasonable certainty, that the order has been disobeyed; (3) the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party; and (4) prejudice to the right of a party to the litigation must be demonstrated” … . A movant seeking a contempt order bears the burden of establishing the foregoing elements by clear and convincing evidence … . We review a court’s ruling on a contempt motion for an abuse of discretion … .

Here, we conclude that petitioner failed to show by clear and convincing evidence that the failure of the DOT respondents to immediately comply with the directives of the October 2015 judgment ” defeat[ed], impair[ed], impede[d] or prejudice[d]’ ” petitioner’s rights … . We are mindful that “[a]ny penalty imposed [for a civil contempt] is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both” … . By the time the court conducted the hearing on petitioner’s contempt motion, it was undisputed that she had been restored to the payroll, was receiving payment, and had been awarded back pay for the time she was wrongly suspended without pay. Thus, the goals of civil contempt would not be furthered by granting petitioner’s motion absent any prejudice to her once the relevant DOT respondents complied with the directives of the October 2015 judgment and restored her to paid status. Matter of Mundell v New York State Dept. of Transp., 2020 NY Slip Op 04099, Fourth Dept 7-17-20

 

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ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the arbitration decision pursuant to the collective bargaining agreement should have been given collateral estoppel effect by the Administrative Law Judge (ALJ) in the unemployment insurance proceeding. The arbitrator found that the claimant engaged in misconduct warranting discharge. The arbitrator’s decision was issued prior to the ALJ’s decision. The ALJ found claimant did not engage in misconduct and was entitled to unemployment insurance benefits:

Although “the Board is not bound by arbitration decisions regarding [a] claimant’s discharge issued subsequent to the time the Board rendered its decision”… , the Board was informed of the arbitration decision prior to its decision. As such, the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing … . The fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as “the final factfinder in the administrative process is the Board, not the ALJ” … . As the Board indicated that the arbitrator’s decision was not part of the record before it — despite that decision being the focus of, and a copy of it annexed to, the employer’s administrative appeal — the matter must be remitted in order for the employer to submit the arbitration decision into the record and to provide an opportunity for claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing … . Matter of Bruce (Town of N. Hempstead–Commissioner of Labor), 2020 NY Slip Op 03705, Third Dept 7-2-20

 

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