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QUESTIONS OF FACT WHETHER THE EMPLOYER OF THE DRIVER WHO KILLED A BICYCLIST WHEN ATTEMPTING TO LEAVE THE EMPLOYER’S PREMISES IS LIABLE, QUESTIONS OF FACT WERE RAISED ABOUT (1) THE EMPLOYER’S SPECIAL USE OF THE AREA WHERE THE ACCIDENT OCCURRED, (2) A SPECIAL RELATIONSHIP WITH THE EMPLOYEE (MASTER-SERVANT) GIVING RISE TO A DUTY TO CONTROL THE EMPLOYEE, AND (3) PROXIMATE CAUSE (THIRD DEPT).

The Third Department, over a dissent, determined there were questions of fact whether the employer (BorgWarner) of the driver who killed a bicyclist (plaintiff’s decedent) while exiting the employer’s premises was liable. There was a question whether the employer exercised a special use of the area, whether the employer had a duty to control the conduct of the employee because of a special relationship (master-servant), and whether the employer’s acts or omissions constituted a proximate cause of the accident:

A finding of a special use arises where there is a modification to the public sidewalk, such as the installation of a driveway, or a variance of the sidewalk to allow for ingress and egress… , that was “constructed in a special manner for the benefit of the abutting owner or occupier” … . The owner must derive a “unique benefit unrelated to the public use” … . Contrary to BorgWarner’s claims that it uses Warren Road in the same manner as the general public, there was substantial evidence in the record, submitted by plaintiff, suggesting that the public roadway in question had been altered for the exclusive benefit of BorgWarner to facilitate its relocation. …

… [A] duty may be created to control the conduct of a person when a special relationship exists, such as master-servant … . Here, not only did BorgWarner control the flow of traffic from its private parking lot at the south exit via a control gate, but BorgWarner also placed a yield sign on BorgWarner South Drive for motorists entering the merge lane on Warren Road. Also, as an employer, BorgWarner had the opportunity to conduct training or communicate in some way to its employees to use due caution and follow traffic laws when using the south exit. In fact, BorgWarner did provide training programs, including obeying traffic signs, however, none were specific to the use of the south exit. This evidence raises a question of fact as to the extent of BorgWarner’s control over its employees and whether this control is sufficient to establish a duty… .Further, although it is true that, at the time of the accident, [the employee] had completed her shift and was going home, activity arguably outside the scope of her employment, exiting the facility was also “necessary or incidental to such employment,” and her actions were still controlled in part by the gate and signage installed by BorgWarner … . Giannelis v Borgwarner Morse Tec Inc., 2018 NY Slip Op 08593, Third Dept 12-13-18

 

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ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, held that whether the public sector employment matter was arbitrable under the terms of the collective bargaining agreement (CBA) must first be determined by the arbitrator, not the courts. The city had issued new protocols for first responders in the EMS program concerning active shooters, animal bites, suspicious packages, medical emergencies associated with criminal activity, etc. The union brought a grievance arguing that their members were not adequately trained for the new protocols and the issues should be the subject of arbitration:

“… [A] dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test” … . ” Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance'” … . ” If there is no prohibition against arbitrating, the court must examine the parties’ collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute'” … .

When deciding whether a dispute is arbitrable, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). “Even an apparent weakness of the claimed grievance is not a factor in the court’s threshold determination. It is the arbitrator who weighs the merits of the claim” … .

Here, it is undisputed that there is no statutory, constitutional, or public policy prohibition to arbitration of the grievance. Therefore, the only issue is whether the parties in fact agreed to arbitrate the dispute. Where, as here, the relevant arbitration provision of the CBA is broad, if the matter in dispute bears a reasonable relationship to some general subject matter of the CBA, it will be for the arbitrator and not the courts to decide whether the disputed matter falls within the CBA … .

In this case, Local 628’s grievance alleged that the City violated Article 33.1 of the CBA, which mandates that the EMS program be kept at the highest level of professional standards based upon the standards in place at the time of the agreement, by issuing General Order 4-15, which increased the call protocols and subjected its members to calls for which they are not trained and lack necessary equipment. Therefore, the grievance is reasonably related to at least one provision in the CBA, and the Supreme Court should have denied the petition to permanently stay arbitration. Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2018 NY Slip Op 08294, Second Dept 12-5-18

ARBITRATION (ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/EMPLOYMENT LAW (ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))/COLLECTIVE BARGAINING AGREEMENT (MUNICIPAL LAW, ARBITRATOR, NOT THE COURTS, MUST FIRST DETERMINE WHETHER THE MATTER IS ARBITRABLE, CITY HAD ISSUED NEW PROTOCOLS FOR FIRST RESPONDERS, THE UNION FILED A GRIEVANCE ARGUING THE NEW PROTOCOLS MUST BE THE SUBJECT OF ARBITRATION, AN ARBITRATOR MUST DECIDE WHETHER THE ISSUE IS COVERED BY THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT))

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BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW AND PENAL LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT). ​

The Third Department determined that petitioner, formerly a village building inspector, was properly terminated for failing to require asbestos abatement for a demolished building. Because the allegations constituted crimes pursuant to the Environmental Conservation Law (ECL) the charges were not time-barred. The evidence was deemed sufficient to support the charges:

Petitioner’s primary contention on appeal is that the charge should have been dismissed as untimely. Indeed, “no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges” (Civil Service Law § 75 [4… . However, this limitations period does not apply “where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime” … . …

… [P]etitioner is alleged to have “knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos.” If proven, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711 [3]). As to count 9, petitioner is alleged, with regard to the demolition of the building, to have “engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air” in a populated area. These allegations would, if proven at trial, constitute the crime of criminal nuisance in the second degree (see Penal Law § 240.45 [1]). Likewise, we find that the allegations against petitioner as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct (see Penal Law § 195.00 [2] …). Accordingly, the Hearing Officer properly found that the charge is not time-barred … . …

At the hearing, petitioner admitted that he was aware that the demolition of the building not only began without the requisite permits, but that the contractors hired to complete the job agreed to do so for only $5,000 — rather than an estimated $150,000 — in exchange for future contracts. It is further undisputed that the demolition resulted in the release of asbestos fibers where workers and passersby would be exposed to the legislatively-recognized carcinogenic agent… . As to the quantity of asbestos released, a report conducted more than a year prior to the building’s demolition found varying percentages of asbestos in the building’s products — from 1.4% to 23.5% — far exceeding the 1% threshold necessary to trigger abatement requirements … . Petitioner testified that, although he was aware that the building contained asbestos and had discussed this report with respondent’s civil engineer, John Fuller, he had not read the report and “assumed” that the quantity of asbestos present did not require abatement. When asked why he did not investigate the issue of abatement further in his role as respondent’s Code Enforcement Officer, he stated that he “had no obligation” to do so. Further, the Hearing Officer credited the testimony of Chief of Police Robert Mir that petitioner had told one of the demolition contractors, Sam Kearney, that he was “good to go” in response to concerns about whether asbestos was present in the building. Marciano Soto, a contractor hired to supervise the demolition of the building, similarly testified that petitioner told him on multiple occasions that the building did not contain asbestos. Upon our review, we find substantial evidence in the record to sustain the charge that petitioner “committ[ed] acts constituting crimes” — namely, endangering public health, safety or the environment in the fourth degree, official misconduct and criminal nuisance in the second degree — and, thus, to support the determination terminating petitioner’s employment … . Matter of Snowden v Village of Monticello, 2018 NY Slip Op 08226, Third Dept 11-29-18

MUNICIPAL LAW (EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/EMPLOYMENT LAW (ENVIRONMENTAL LAW, MUNICIPAL LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))/ENVIRONMENTAL LAW (MUNICIPAL LAW, EMPLOYMENT LAW, BUILDING INSPECTOR WAS PROPERLY TERMINATED FOR FAILURE TO REQUIRE ASBESTOS ABATEMENT FOR A DEMOLISHED BUILDING, BECAUSE THE ACTIONS OF THE INSPECTOR CONSTITUTED CRIMES UNDER THE ENVIRONMENTAL CONSERVATION LAW, THE EMPLOYMENT-RELATED CHARGES WERE TIMELY (THIRD DEPT))

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COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT).

The Second Department, annulling the employment discrimination determination, held that the action against the employer, Food Corp., was untimely and the relation-back doctrine did not apply. Complainant had originally named Trade Fair as her employer and then added Food Corp. more than a year after her termination:

Food Corp. does not dispute that the first prong of the relation-back test was satisfied, because the claims against Food Corp. arose out of the same transactions or occurrences as those asserted against Trade Fair. The complainant also established the third prong of the test by presenting evidence suggesting that Food Corp. had notice of the proceeding before the statute of limitations expired, and that Food Corp. should have known that, but for the complainant’s mistake in omitting it as a respondent in her complaint, the proceeding would have been timely commenced against it as well.

However, the complainant failed to satisfy the second prong of the relation-back test, because Food Corp. and Trade Fair were not united in interest. Respondents are “united in interest only when their interest in the subject-matter [of the proceeding] is such that [the respondents] stand or fall together and that judgment against one will similarly affect the other'” … . “[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the [complainant]” … . Respondents are not united in interest if there is a possibility that the new party could have a defense different from that of the original party … . Here, the Commissioner dismissed the second amended complaint insofar as asserted against Trade Fair on the grounds that the complainant never interacted with or took direction from Trade Fair’s employees, and that Trade Fair was not the complainant’s employer. In contrast, the Commissioner determined that Food Corp. was the complainant’s employer because Food Corp.’s personnel hired and fired the complainant and controlled the complainant’s daily workplace activities. Thus, the record makes clear that Food Corp.’s and Trade Fair’s interests in the administrative proceeding did not stand or fall together … . Matter of 130-10 Food Corp. v New York State Div. of Human Rights, 2018 NY Slip Op 08123, Second Dept 11-28-18

CIVIL PROCEDURE (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/ADMINISTRATIVE LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/HUMAN RIGHTS LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/EMPLOYMENT LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/DISCRIMINATION  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/RELATION BACK DOCTRINE (STATUTE OF LIMITATIONS, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/STATUTE OF LIMITATIONS (RELATION BACK DOCTRINE, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))

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ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT).

The First Department determined the stipulation signed by plaintiff teacher, who agreed to resign in return for discontinuing the disciplinary hearing, was binding under contract principles, despite the inapplicability of CPLR 2104 to administrative proceedings. After signing the stipulation, plaintiff changed his mind:

In the stipulation, DOE (Department of Education] agreed to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against plaintiff, in exchange for which plaintiff agreed “to irrevocably retire from his employment with [DOE] … .” The agreement was signed by plaintiff, his counsel, and DOE’s counsel … . Annexed to the stipulation was a letter signed by plaintiff and addressed to District Superintendent Karen Watts stating, “I hereby irrevocably retire from [DOE] … .” The stipulation contained a signature line for Superintendent Watts, who signed it several days later.

Before Superintendent Watts signed the stipulation, plaintiff notified DOE that he had changed his mind and wanted to rescind the stipulation. He argues that the stipulation was unenforceable when he changed his mind because not all the parties had signed it. …

Although CPLR 2104 is not applicable to agreements entered into in administrative proceedings, the stipulation signed by plaintiff and counsel acting on behalf of DOE is binding under general contract principles … . Plaintiff failed to show the existence of fraud, collusion, mistake or accident, or that counsel lacked DOE’s consent to enter into the stipulation … . Plaintiff’s agreement to retire was irrevocable, and plaintiff understood its consequences. His change of mind is not a cause sufficient to set aside his agreement … . Nor is his parol evidence, offered to show that the parties did not intend to be bound by the stipulation until Superintendent Watts had signed it, admissible to add to or vary the terms of the writing … . Matter of Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, First Dept 11-27-18

ADMINISTRATIVE LAW (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CONTRACT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EMPLOYMENT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EDUCATION-SCHOOL LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CIVIL PROCEDURE (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CPLR 2104  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))

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BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers are extremely limited:

Civil Service Law § 76(1) permits a person whose civil service employment has been terminated to “appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with [article 78].” If the former option is chosen, “[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court” … . The Court of Appeals has clarified that, despite the plain language in the statute, judicial review is not completely foreclosed … . Rather, the article 78 court, instead of being guided by the substantial evidence or arbitrary and capricious standards of review, is limited to reviewing whether “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction” … .

Petitioners argue that CSC acted unconstitutionally because it relied on the statements of the inmates, who never testified, thus depriving petitioners of any chance to cross-examine them. However, this point is unpreserved. Petitioners fail to point to anything in the record showing that they ever sought to cross-examine or call the inmates and were denied that opportunity. More importantly, they never protested that their constitutional rights were being violated. This Court has “no discretionary authority” to “reach[] an unpreserved issue in the interest of justice” in an article 78 proceeding challenging an administrative determination … , including issues touching on due process … and evidentiary challenges … . Matter of Almanzar v City of New York City Civ. Serv. Commn., 2018 NY Slip Op 08062, First Dept 11-27-18

ADMINISTRATIVE LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/CIVIL PROCEDURE  (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/EMPLOYMENT LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/APPEALS (CIVIL SERVICE COMMISSION, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))

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EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT).

The First Department affirmed the denial of defendant employer’s (SLSCO’s) motion to dismiss the plaintiff employees’ breach of contract complaint. The complaint alleged that SLSCO and the subcontractor, PMJ, which employed plaintiffs, breached the prime employment contract by failing to pay the prevailing wage for work done for the Department of Environmental Protection (DEP). The court noted the employees were third party beneficiaries of the contract and the clause in the contract which purported to prohibit third-party actions seeking the prevailing wage would be void as against public policy:

Plaintiffs are employees of PMJ. They commenced this action for breach of contract against PMJ and SLSCO, predicated upon a third-party contract beneficiary theory, alleging that PMJ failed to pay them prevailing wages as required by the terms of the prime contract … . …

Labor Law § 220(3) provides, in pertinent part, that wages paid to laborers, workers, or mechanics on a public works project shall be the prevailing rate of wages in that locality, and that the public works contracts, including subcontracts thereunder “shall contain a provision that each laborer, workman or mechanic, employed by such contractor, subcontractor or other person about or upon such public work shall be paid the wages herein”. This statute “has as its entire aim the protection of workingmen against being induced, or obliged, to accept wages below the prevailing rate” and “must be construed with the liberality needed to carry out its beneficent purposes”… . In keeping with this liberal reading of the statute, the courts of this state have consistently held that, in public works contracts, a subcontractor’s employees have both an administrative remedy under the statute as well as a third-party right to make a breach of contract claim for underpayment against the general contractor … . Wroble v Shaw Envtl. & Infrastructure Eng’g of N.Y., P.C., 2018 NY Slip Op 08061, First Dept 11-27-18

EMPLOYMENT LAW (LABOR LAW, PREVAILING WAGE, EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT))/LABOR LAW (PREVAILING WAGE, PREVAILING WAGE, EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT))/CONTRACT LAW (EMPLOYMENT LAW, THIRD PARTY BENEFICIARIES, LABOR LAW, EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT))/THIRD PARTY BENEFICIARIES (CONTRACT LAW, EMPLOYMENT LAW, LABOR LAW, EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT))

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THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP).

The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally insufficient. Plaintiff’s decedent worked in a garage and was exposed to asbestos-laden dust from new and used brakes, clutches and manifold and engine gaskets:

Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st St. Realty, LLC(22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404 (a) … . Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059, CtApp 11-27-18

PRODUCTS LIABILITY (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/TOXIC TORTS  (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/NEGLIGENCE (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/EMPLOYMENT LAW (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/ASBESTOS (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/MESOTHELIOMA  (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))

,

CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department determined claimant’s injuries did not arise out of his employment. Claimant, a farm worker, used his employer’s ATV to go across the street to where his girlfriend was moving into a house. There was evidence he may have drunk beer, which was prohibited by his employer. When crossing the street to return to the farm claimant was struck by a vehicle and injured:

Regardless of whether claimant was permitted to use the employer’s ATV or to take a break and leave the farm for a brief period of time before returning to work, the employer’s testimony makes clear that consuming alcohol on the job was not a permitted, acceptable or customary deviation from claimant’s employment … . As the record as a whole provides substantial evidence to support the Board’s finding that claimant was engaged in an impermissible deviation from his employment at the time of his accident, his resulting injuries did not arise out of and in the course of his employment and, therefore, are not compensable … . Matter of Button v Button, 2018 NY Slip Op 07809, Third Dept 11-15-18

WORKERS’ COMPENSATION (CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))

, ,

WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined a question of fact whether the injured plaintiff was an employee or an independent contractor (and therefore a question of fact whether the Workers’ Compensation was plaintiff’s exclusive remedy) must ruled on by the Workers’ Compensation Board before the courts can get involved:

Where the availability of workers’ compensation benefits “hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must look to the Workers’ Compensation Board for such determinations”… . “The question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is usually a question of fact to be resolved by the Workers’ Compensation Board” … . Here, in light of the affidavit of the defendant’s employee, who stated that he trained the plaintiff, supervised the plaintiff closely, set the plaintiff’s hours on the days the plaintiff worked, and directed the plaintiff’s work, there is a question of fact regarding whether the plaintiff was the defendant’s employee on the date of the accident. Accordingly, because “there is a question of fact as to whether the plaintiff has a valid negligence cause of action against the defendant,” “[t]hat determination must be made in the first instance by the Workers’ Compensation Board …”. Findlater v Catering by Michael Schick, Inc., 2018 NY Slip Op 07702, Second Dept 11-14-18

WORKERS” COMPENSATION (WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/INDEPENDENT CONTRACTORS (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))

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