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‘LABOR CLASS’ EMPLOYEES ARE NOT ENTITLED TO REINSTATEMENT AFTER A YEAR’S ABSENCE DUE TO ON THE JOB INJURY, CIVIL SERVICE LAW 71 DOES NOT APPLY TO ‘LABOR CLASS’ EMPLOYEES (CT APP).

The Court of Appeals, reversing the Appellate Division, determined section 71 of the Civil Service Law, which provides for the reinstatement of an employee after a one-year absence from work due to an injury, did not apply to petitioner (Jordan), a so-called “labor class” employee of the New York City Housing Authority (NYCHA):

Petitioners argue, as they did below, that “employee” is unqualified in the statute and so we should apply that term broadly, consistent with its plain meaning. NYCHA counters that, although “employee” is undefined in the Civil Service Law, section 71 uses terms of art normally not associated with the labor class, including “preferred eligible list” and “grade.” Both are fair points, and therefore to resolve any ambiguity, we turn to the history and the purpose of the statute in resolving this issue.

Our task here is made easier by the fact that we have already articulated section 71’s purpose. Twenty-five years ago, in Allen v Howe, we said that section 71 “w[as] adopted to address the difficult situation created by the prolonged absence of a civil service employee” due to injury (84 NY2d 665, 671 [1994]). Under Civil Service Law § 75, delineated groups of employees “shall not be removed . . . except for incompetency or misconduct after a hearing.” This section left a governmental employer unable to fill a vacancy created by an extended absence due to injury without a “resignation” or the “institut[ion] of disciplinary hearings” (id.). Section 71 was designed to remove the procedural hurdle imposed by section 75 by allowing a “State governmental employer” to terminate an employee without “resort to a disciplinary proceeding” and providing the injured employee a mechanism for later reinstatement (id.).

Including Jordan within the coverage of section 71 would not serve that legislative purpose. As a labor class employee, Jordan was not entitled to a disciplinary hearing before she was terminated and NYCHA did not face the dilemma that led to passage of section 71. Moreover, even if NYCHA was forced to rehire Jordan, she could have been lawfully terminated the next day—”an absurd result that would frustrate the statutory purpose” … . Therefore, we hold that NYCHA did not violate Section 71 when it refused to reinstate Jordan. Matter of Jordan v New York City Hous. Auth., 2019 NY Slip Op 04756, CtApp 5-13-19

 

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DEFENDANT SCHOOL DISTRICT WAS NOT A PARTY TO THE LONG-TERM DISABILITY INSURANCE CONTRACT WHICH COVERED PLAINTIFF, A SCHOOL DISTRICT EMPLOYEE WHO WAS INJURED ON THE JOB; THEREFORE THE SCHOOL DISTRICT COULD NOT BE SUED BY THE EMPLOYEE AFTER THE INSURER CUT OFF BENEFITS (SECOND DEPT).

The Second Department determined that plaintiff, a security guard for the School District who was injured on the job, did not have a cause of action against District based upon the long-term disability insurer’s (Sun Life’s) decision to terminate her disability benefits. The District was not a party to the contract between Sun Life and the policyholder. Although the Summary Plan Description issued by Sun Life’s predecessor mentioned the insured rights under the Employee Retirement Income Security Act (ERISA), the District was not obligated by the Summary-Plan language:

… [T]he plaintiff contends that, based on the language of portions of the Summary Plan Description, the District subjected itself to ERISA’s statutory scheme governing appeals from denials of claims. …

An insurance policy is a contract to which standard provisions of contract interpretation apply … . “Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties”… . “One cannot be held liable under a contract to which he or she is not a party” … .

Here, the District was not a party to the long-term disability policy issued by Sun Life to a different named policyholder. Even assuming the authenticity of the Summary Plan Description excerpts relied upon by the plaintiff, nothing in the record reflects that the District authored, published, or agreed to be bound by the Summary Plan Description, which, by its terms, did not form part of the insurance policy. Nor do the terms of the insurance policy incorporate the provisions of ERISA … . Arroyo v Central Islip UFSD, 2019 NY Slip Op 04669, Second Dept 6-12-19

 

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SCHOOL EMPLOYEE’S NEGLIGENCE ACTION AGAINST THE DEPARTMENT OF EDUCATION IS NOT GOVERNED BY THE COLLECTIVE BARGAINING AGREEMENT (CBA), NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES; DENIAL OF MEDICAL LEAVE DID NOT HAVE RES JUDICATA OR COLLATERAL ESTOPPEL EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee’s personal injury complaint against the NYC Department of Education (DOE), stemming from an elevator accident, should not have been dismissed. The plaintiff-employee first applied to the DOE for line of duty injury paid medical leave pursuant to the collective bargaining agreement (CBA) and was denied. Plaintiff then commenced the personal injury action. The DOE argued that plaintiff had failed to exhaust the administrative remedies required by the CBA and, in the alternative, the denial of the line of duty pay should be given res judicata or collateral estoppel effect. Supreme Court decided plaintiff had failed to exhaust the administrative remedies. The Second Department held that her injury and the resulting negligence action were not covered by the CBA:

An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … or face dismissal of the action …. Here, however, the plaintiff seeks to recover damages against the defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA’s “line of duty injury” paid leave grievance provisions… . There is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA … .

The defendants’ contention that dismissal is also warranted on the basis of collateral estoppel and res judicata is without merit … . Collateral estoppel is inapplicable, as the defendants failed to demonstrate that the issue that the plaintiff seeks to pursue here was necessarily decided by the DOE when it denied the plaintiff’s “line of duty injury” paid leave application … . Likewise, the doctrine of res judicata, or claim preclusion, also is inapplicable to the plaintiff’s complaint because the relief she seeks could not have been awarded within the context of the prior administrative proceeding … . Shortt v City of New York, 2019 NY Slip Op 04745, Second Dept 6-12-19

 

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PLAINTIFF FELL THROUGH AN INADEQUATELY PROTECTED HOLE IN DEFENDANT’S BUILDING WHEN HE (APPARENTLY) WAS DOING WORK ON BEHALF OF HIS EMPLOYER, APPARENTLY A TENANT IN THE BUILDING; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AGAINST THE BUILDING OWNER; BUT PLAINTIFF PRESENTED NO PROOF HIS EMPLOYER HAD ASSUMED THE DUTIES OF AN AGENT OF THE OWNER FOR SUPERVISION OF HIS WORK, THEREFORE SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) ACTION AGAINST THE EMPLOYER WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s Labor Law 240 (1) cause of action against the building owner should have been granted, but his Labor Law 240 (1) cause of action against his employer, Bright Way, was properly denied because plaintiff presented no proof Bight Way acted as the owner’s agent. Apparently Bright Way occupies the owner’s building. Plaintiff is a salesman for Bright Way. Plaintiff was instructed to run a thermostat wire on the second floor of the building when he fell 15 feet through an inadequately protected hole:

Labor Law § 240(1) “imposes liability only on contractors, owners or their agents” (…see Labor Law § 240[1]). “An agency relationship for purposes of section 240(1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job”… . “Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent of the owner or general contractor” … . “The key question is whether the defendant had the right to insist that proper safety practices were followed” … . “[U]nless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … .

Here, the plaintiff’s evidence failed to establish, prima facie, that Bright Way was an agent of the property owner or one of its contractors at the site. The evidence proffered by the plaintiff in support of his motion did not establish that Bright Way had been delegated the “duty to conform to the requirements of the Labor Law”… , that Bright Way “had the right to insist that proper safety practices were followed” at the construction site … , that Bright Way had “broad responsibility” to coordinate and supervise “all the work being performed on the job site” … , or that Bright Way had requested or been granted authority by the owner or contractor to supervise and control the work in the area where the accident occurred … . Yiming Zhou v 828 Hamilton, Inc., 2019 NY Slip Op 04752, Second Dept 6-12-19

 

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THE COMPLAINT ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE (RESPONDEAT SUPERIOR) FOR THE NEGLIGENT ACTIONS OF A CORONER SHOULD NOT HAVE BEEN DISMISSED, THE CORONER ALLEGEDLY TRANSFERRED A PORTION OF THE REMAINS OF PLAINTIFF’S SON TO A VOLUNTEER FIRE DEPARTMENT FOR THE TRAINING OF CADAVER DOGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint against the county, based upon the alleged negligence of a county employee, should not have been dismissed. It was alleged that a coroner (Jackman) employed by the county transferred human remains (plaintiff’s son) to a volunteer fire company for the purpose of train cadaver dogs:

Although it is generally a question for the jury whether an employee is acting within the scope of employment … , an employer is not liable as a matter of law “if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business’ “… .

Here, there is evidence that Jackman’s decision to transfer a portion of the remains of plaintiffs’ son (decedent) to defendant Vincent Salerno, the Fire Chief of Cambria, was driven by a work-related purpose, rather than Jackman’s own personal interests … . Furthermore, there are issues of fact whether it was foreseeable that Jackman, in performing his obligations as a county coroner, might negligently remove, transport, or even transfer decedent’s remains. “[F]or an employee to be regarded as acting within the scope of his [or her] employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” … . An employee’s “[m]ere . . . deviation from the line of . . . duty does not relieve [the] employer of responsibility” … . …

… [W]e reject plaintiffs’ contention that the court erred in granting Cambria’s motion. The unrefuted evidence showed that Cambria’s employee, Salerno, had only personal motives for requesting decedent’s remains from Jackman, i.e., to further his own interest in training dogs to locate cadavers … . Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs. Dunn v County of Niagara, 2019 NY Slip Op 04530, Fourth Dept 6-7-19

 

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ARBITRATOR EXCEEDED HIS AUTHORITY PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) BY RELYING ON EVIDENCE WHICH WAS NOT PART OF THE HEARING EVIDENCE TO DETERMINE WHETHER THE RESPONDENT HAD PROBABLE CAUSE TO SUSPEND THE PETITIONER (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator in this employment dispute covered by a collective bargaining agreement (CBA) , exceeded his authority by relying on the information in the notice of suspension, as opposed to the hearing evidence, to determine whether the employee, who was suspended without pay, was entitled to back pay:

Respondents’ sole contention on appeal is that the arbitrator’s award of back pay for the period of interim suspension exceeded his authority. We agree. “Judicial 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” … . Moreover, “although an arbitrator’s interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority”… . Therefore, “if the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator’s construction[,] in effect, made a new contract for the parties, which is a basis for vacating the award” … . …

Here, the arbitrator’s award of back pay for the period of interim suspension was based upon a determination that DOCCS lacked probable cause to suspend petitioner. As relevant here, section 33.4 (c) (1) of the CBA states that “[s]uspensions without pay . . . shall be reviewable by a disciplinary arbitrator . . . to determine whether the [respondent] had probable cause.” This Court has previously held that hearing evidence should be considered by the arbitrator in determining probable cause (see Matter of Livermore-Johnson … . However, the decision makes clear that the arbitrator did not rely on the hearing evidence to reach this determination … . Matter of Czerwinski (New York State Dept. of Corr. & Community Supervision), 2019 NY Slip Op 04526, Third Dept 6-6-19

 

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INFORMATION PROVIDED FOR THE FIRST TIME IN A REPLY TO OPPOSITION TO A SUMMARY JUDGMENT MOTION CAN NOT BE RELIED UPON TO MAKE OUT A PRIMA FACIE CASE, THE APPELLANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ON THE JOB INJURY CASE ON THE GROUND THAT APPELLANT WAS PLAINTIFF’S GENERAL EMPLOYER AND PLAINTIFF’S ONLY REMEDY WAS WORKERS’ COMPENSATION PROPERLY DENIED (SECOND DEPT).

The Second Department determined that information provided for the first time in a reply affidavit could not be relied upon to sustain a movant’s prima facie burden for a summary judgment motion. The plaintiff, who was injured on the job, alleged he was hired by the defendant Bright Star Messenger Service, LLC (hereinafter the appellant). In its motion for summary judgment the appellant alleged it was plaintiff’s general employer and plaintiff’s only remedy was Workers’ Compensation. But included in appellant’s papers was plaintiff’s claim for Worker’s Compensation benefits which listed plaintiff’s employer as “Bright Star Courier.” Therefore the appellant failed to make out a prima facie case that it was plaintiff’s employer. The appellant then submitted a reply affidavit stating that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC prior to the accident:

… Contrary to the appellant’s contention, it failed to make a prima facie showing that it was the plaintiff’s general employer. The appellant submitted the affidavit of a representative of the appellant, who stated that the plaintiff was employed by the appellant on the date of the accident, and that the appellant had procured workers’ compensation insurance for the plaintiff. However, the appellant also submitted Workers’ Compensation Board records showing that the plaintiff had filed a claim for benefits that listed the plaintiff’s employer as “Bright Star Courier.” Under these circumstances, the appellant failed to demonstrate, prima facie, that it was the plaintiff’s general employer … . While the appellant submitted a reply affidavit from its representative averring that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC, prior to the accident, a party cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers  … . The appellant’s failure to make a prima facie showing of its entitlement to judgment as a matter of law required the denial of its motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Matthews v Bright Star Messenger Ctr., LLC, 2019 NY Slip Op 04375, Second Dept 6-5-19

 

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ALTHOUGH CLAIMANT WAS REHIRED AFTER THE STRIKE, THE EMPLOYER HAD NOT ASSURED CLAIMANT OF THE RIGHT TO RETURN TO WORK DURING THE STRIKE, THEREFORE THE EMPLOYER WAS NOT ENTITLED TO THE SEVEN-WEEK SUSPENSION OF UNEMPLOYMENT BENEFITS DURING A STRIKE PERMITTED BY LABOR LAW 592 (THIRD DEPT).

The Third Department determined claimant was entitled to unemployment insurance benefits and were not subject to the seven-week suspension of benefits during a strike (Labor Law 592). The suspension of benefits is not applicable where, as here, the employer indicates it is hiring permanent replacements for the strikers:

Although it is unclear which of claimants’ positions were filled by the permanent replacement workers, the record unequivocally demonstrates that none of the claimants were notified in a certified writing that they would be able to return to their prior positions upon the conclusion of the strike. Moreover, although claimants ultimately were allowed to return to their prior positions following ratification of the parties’ … Memorandum of Agreement ending the strike, that agreement is of no consequence because the employer failed to provide any written certification during either the seven-week suspension period or at any time prior to the conclusion of the strike assuring claimants that they would retain the right to return to their prior positions upon conclusion of the strike … . Matter of D’Altorio (Clare Rose, Inc.–Commissioner of Labor), 2019 NY Slip Op 04249, Third Dept 5-30-19

 

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ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT BY DEFENDANT HOSPITAL, THE ACTION AGAINST THE HOSPITAL PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR SHOULD HAVE BEEN DISMISSED, TIME FOR SUMMARY JUDGMENT MOTION STARTED ANEW AFTER THE NOTE OF ISSUE WAS VACATED, FAILURE TO ATTACH PLEADINGS TO MOTION FOR SUMMARY JUDGMENT NOT FATAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this third-party assault case against the defendant hospital based upon an alleged sexual assault by an employee-doctor should have been dismissed. Because the alleged assault and battery was not in furtherance of defendant’s business, the doctrine of respondeat superior did not apply. The Second Department noted that the defendant’s motion for summary judgment was not untimely because the note of issue had been vacated, which started the time for summary judgment anew. The Second Department also noted that the failure to attach the pleadings to the motion for summary judgment was not fatal because they were attached to the reply:

Pursuant to CPLR 3212(b), a court will grant a motion for summary judgment when, viewing the evidence in the light most favorable to the opponent of the motion, it determines that the movant’s papers justify holding, as a matter of law, that the cause of action has no merit. “The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s ations fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Thus, where an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment … .

A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives … . Here, the evidence submitted by the defendants demonstrated that the doctor’s alleged conduct was not in furtherance of St. John’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . Montalvo v Episcopal Health Servs., Inc., 2019 NY Slip Op 04158, Second Dept 5-29-19

 

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IN THIS NEGLIGENT SUPERVISION, HIRING AND RETENTION CASE, THE MEDICAL RECORDS OF A NON-PARTY WITNESS WHO ALLEGED IMPROPER CONDUCT BY DEFENDANT DOCTOR ARE DISCOVERABLE ONLY TO THE EXTENT THEY INCLUDE NON-PRIVILEGED INFORMATION INDICATING DEFENDANT DOCTOR’S EMPLOYER WAS AWARE OF THE ALLEGATIONS, THE NON-PARTY WITNESS DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE BY DISCUSSING HER MEDICAL HISTORY IN A DEPOSITION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the medical records of a non-party witness were discoverable only to the extent that they included non-privileged information demonstrating defendant Huntington Medical Group (HMG) was on notice that defendant doctor (Wishner) had acted improperly with patients. Plaintiff sued HMG alleging negligent hiring, supervision and retention of Wishner. Plaintiff had deposed a non-party witness who apparently had alleged improper conduct by Wishner. Defendants sought to discover the non-party witness’s medical records. The Second Department noted that the defendants (1) had not shown the medical records were relevant to the improper conduct allegations and (2) the non-party witness had not waived the physician-patient privilege. The matter was remitted for an in camera review of the records by Supreme Court:

The physician-patient privilege seeks to protect confidential communications relating to the nature of the treatment rendered and the diagnosis made … . The physician-patient privilege applies to information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms … . “The privilege applies at examinations before trial, and it covers both oral testimony and documents, such as hospital records, which presumably are drawn up in large part based on communications imparted by the patient to the treating physician” … .

Here, the nonparty witness expressly declined to waive the physician-patient privilege as to her medical records, and her deposition testimony with respect to the facts of Wishner’s alleged improper conduct during the subject physical examination and the facts and incidents of her medical history does not constitute privileged information … . Thus, the nonparty witness did not waive the physician-patient privilege as to her medical records … . …

… [P]rivileged medical records may contain nonprivileged information that could be discoverable if relevant … . Thus, we remit this matter to the Supreme Court, … for an in camera inspection of the nonparty witness’ medical records stored by HMG for a determination of whether such records, or any parts thereof, contain any nonprivileged information relevant to the issue of whether HMG was on notice of Wishner’s alleged improper conduct toward patients during his examination of them and, if so, for the entry of an order directing that such nonprivileged information, if any, shall be produced to the defendants. Mullen v Steven G. Wishner, 2019 NY Slip Op 04180, Second Dept 5-29-19

 

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