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Under the Unambiguous Terms of the Collective Bargaining Agreement, Plaintiff, a Retiree Who Was No Longer a Union Member, Was Not Subject to the Grievance-Filing Requirement and Could Sue Directly

The Fourth Department determined a retired employee was not required to go through the grievance procedure outlined in the Collective Bargaining Agreement because the unambiguous language of the CBA did not apply to retirees no longer union members:

In relevant part, the CBA defines the term “grievance” broadly as “a controversy, dispute or difference arising out of the interpretation or application of this contract.” The first step of the grievance procedure requires either the union or a “member” to present the grievance in writing. “It is well established that[,] when reviewing a contract, ‘[p]articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties manifested thereby’ ” … . Furthermore, we“must give the words and phrases employed their plain meaning” … . Elsewhere in the CBA, the word “member” is used interchangeably with the word “employee,” and several CBA provisions that apply to “members,” such as provisions for holiday pay and annual physicals, clearly affect only active employees. In addition, the CBA provides that the Village recognizes the union “as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees” (emphasis added).

Giving the word “member” its plain meaning, and interpreting the contract as a whole, we agree with plaintiff that the word “member” means a member of the union. It is undisputed that plaintiff ceased to be a member of the union after his retirement. Thus, according to the clear and unambiguous terms of the CBA, plaintiff, who was no longer a “member” of the union when he became aggrieved, could not file a grievance. Buff v Village of Manlius…, 37, 4th Dept 3-21-14

 

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Plaintiff Could Not Rely On Code Provisions Not Mentioned in Plaintiff’s Bill of Particulars to Defeat Summary Judgment

The Second Department determined Supreme Court correctly declned to allow plaintiff to rely on provisions of the Administrative Code which were not included in plaintiff’s bill of particulars.  Plaintiff, in response to defendant’s (16302 Jamaica’s) motion for summary judgment, alleged that plaintiff had violated provisions of the code which required defendant, an out-of-possession landlord, to keep the premises where plaintiff fell safe.  But because the provisions relied upon in response to the summary judgment motion were not the same provisions listed in the bill of particulars, Supreme Court refused to consider them and granted summary judgment to the defendant.

Although the plaintiff contends on appeal that 16302 Jamaica violated other provisions of the Administrative Code of the City of New York that imposed a statutory duty upon it to make repairs or maintain the premises in a safe condition, the plaintiff, in response to 16302 Jamaica’s demand for a bill of particulars, failed to identify these provisions either in his initial bill of particulars, his first supplemental bill of particulars, or his second supplemental bill of particulars. Thus, 16302 Jamaica was never placed on notice during the course of discovery that the plaintiff would rely upon these additional provisions of the Administrative Code as a predicate for its liability. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in declining to allow the plaintiff to rely on those Administrative Code provisions in opposing 16302 Jamaica’s motion for summary judgment … . Wenzel v 16302 Jamaica Ave LLC, 2014 NY Slip Op 01744, 2nd Dept 3-19-14

 

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Failure to Mention the Rate of Compensation Required Dismissal of the Contract Cause of Action Under the Statute of Frauds/However the Allegation Defendant Employed Plaintiff Was Sufficient to Allow the Quantum Meruit Cause of Action to Go Forward

The First Department determined the contract cause of action must be dismissed under General Obligations Law 5-701(a)(10) because there was no mention of the rate of compensation,  but that there were sufficient allegations to allow the quantum meruit cause of action to go forward:

In Davis & Mamber, this Court held that for a writing evidencing a contract “[t]o satisfy the Statute of Frauds . . . a memorandum must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter” … . … Davis & Mamber precluded a contract claim for failure to satisfy the applicable provision of the statute of frauds, because the relied-on writings lacked any reference to the agreed-on compensation; however, it permitted a quantum meruit claim, because the rule for a writing establishing quantum meruit claims is less exacting, requiring only that the writing “evidenced the fact of plaintiff’s employment [by defendant] to render the alleged services” …. Here, as in Davis & Mamber, the emails … fail to make any reference to payment terms, and accordingly fail to satisfy the statute of frauds as to the contract claim … . However, they suffice to show that [defendant] employed plaintiff, and are therefore enough to satisfy the statute for purposes of plaintiff’s quantum meruit claim.  Chapman, Spira & Carson LLC v Helix BioPharma Corp, 2014 NY Slip Op 01685, 1st Dept 3-18-14

 

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Stray Remarks Doctrine Applied in Action Under New York City Human Rights Law

The First Department determined that the “stray remarks doctrine” applied to actions brought brought under the New York City Human Rights Law.  The court rejected the argument that a statement in an email written weeks after plaintiff’s termination was actionable, asserting the so-called “stray remarks doctrine:”

Plaintiff relies on one remark made in an email exchange that took place weeks after the decision to terminate him was made and that concerned the resolution of his union’s grievance following the termination. In the email, one of defendant’s employees responsible for making the decision to terminate plaintiff declined to reconsider the penalty because of the nature of plaintiff’s convictions and his concern about the liability that defendant would assume if plaintiff committed a similar crime while on company time. However, “[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination” … .  Indeed, plaintiff did not demonstrate a nexus between the employee’s remark and the decision to terminate him… .

We decline to hold, as urged by plaintiff and amici, that the stray remarks doctrine may not be relied on in determining claims brought pursuant to the City Human Rights Law, even as we recognize the law’s “uniquely broad and remedial purposes” (Bennett, 92 AD3d at 34 [internal quotation marks omitted]). The doctrine is not inconsistent with the intentions of the law, since statements “constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff” … . Godbolt v Verizon NY Inc, 2014 NY Slip Op 01561, 1st Dept 3-11-14

 

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Unjust Enrichment Does Not Require a Wrongful Act by the One Enriched

The Second Department explained the criteria for determining a motion to dismiss for failure to state a cause of action and the elements of an unjust enrichment cause of action. Unjust enrichment does not require a wrongful act:

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … .”The essential inquiry in any action for unjust enrichment or restitution is whether … it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .”Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched” … . “Innocent parties may frequently be unjustly enriched” … . “What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it'” … . Alan B Greenfield MD PC v Beach Imaging Holdings LLC, 2014 NY Slip Op 01285, 2nd Dept 2-26-14

 

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Limited Role of Courts in Determining Applications to Stay Arbitration (Re: a Collective Bargaining Agreement [CBA]) Explained

The Third Department determined the petition to stay arbitration in a teacher-tenure matter should have been denied. In so finding, the Third Department explained the limited role of the courts in determining applications to stay arbitration:

The court’s role in determining applications to stay arbitration is limited and, as relevant here, requires a determination of whether the parties have agreed to arbitrate the dispute at issue … .Inasmuch as respondent has asserted a violation of the evaluation procedures agreed to by the parties as part of the CBA, there is a rational relationship between the subject of the grievance and the CBA … . The question of whether petitioner violated these procedures “goes to the merits of the grievance, not to its arbitrability” … . “[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the[] parties'” … . Matter of Brunswick Central School District …, 517060, 3rd Dept 2-20-14

 

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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System:

…”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … . “Rather, such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means” … . In other words, “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … . Upon our review, we fail to find substantial evidence to support the Comptroller’s determination that petitioner was an independent contractor and not an employee of the school district.Here, the school district’s former superintendent, who worked with petitioner for nearly four decades, testified that during his tenure he supervised all staff at the school district, including petitioner. Matter of Brothman v DiNapoli, 517032, 3rd Dept 2-20-14

 

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Plaintiff Raised a Question of Fact About Whether Her Employment Was Terminated in Retaliation for Protected Activity

The Fourth Department concluded plaintiff had raised a question of fact about whether the termination of her employment with the county was in retaliation for protected activity. The wife of plaintiff’s boss was a special education teacher working with plaintiff’s son. Shortly after complaining to the school district about the special education plaintiff’s son was receiving, plaintiff’s job was eliminated. The Fourth Department summarized the applicable law as follows:

In order to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … .In order to establish entitlement to summary judgment in a retaliation case, a defendant may “demonstrate that the plaintiff cannot make out a prima facie claim of retaliation” or, alternatively, a defendant may “offer legitimate, nonretaliatory reasons for the challenged actions,” and show that there are “no triable issue[s] of fact . . . whether the . . . [reasons are] pretextual”… . * * *With respect to the element of a causal connection, we note that such element “may be established either ‘indirectly by showing that the protected activity was followed closely by [retaliatory] treatment, . . . or directly through evidence of retaliatory animus directed against a plaintiff by the defendant’ ”… . Calhoun v County of Herkimer, 1303, 4th Dept 2-14-14

 

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Employer Which Hired Undocumented Workers Who Were Injured On the Job Protected from Suit by the Workers’ Compensation Law

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the employer [Microtech] was entitled to the protection of the Workers’ Compensation Law and a suit against the employer by the hospital (which paid out Labor Law claims to the injured workers) was properly dismissed. The employer had hired undocumented workers [the Lemas] who were injured doing demolition work at the hospital. The workers were paid Workers’ Compensation benefits by the employer. The workers sued the hospital under the Labor Law and were awarded a verdict. The hospital then sued the employer which, the Court of Appeals held, was protected from suit by section 11 of the Workers’ Compensation Law:[Quoting the appellate division, the Court of Appeals wrote:]

…[T]o rule in the hospital's favor would “effectively deny [Microtech] the economic protections it acquired under the Workers' Compensation Law in return for providing [the Lemas] with compensation for their injuries,” as well as “relieve [the hospital] of its responsibility to ensure a safe construction site for workers under the Labor Law”… . New York Hospital Medical Center of Queens v Microtech Contracting Corp, 1, CtApp 2-13-14

 

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Labor Law Suit for Gratuities Not Preempted by Labor Management Relations Act or Prohibited by Collective Bargaining Agreement

In a full-fledged opinion by Justice Renwick, the First Department determined the plaintiffs, food and beverages servers at Madison Square Garden, had stated a cause of action against the defendant Garden under Labor Law 196-d. The plaintiffs alleged the Garden was not distributing to the plaintiffs all the “service charges” paid by customers who were led to believe the “service charges” were gratuities for the servers. The First Department rejected the Garden’s argument that the claims were preempted by federal law (Labor Management Relations Act [LMRA]) and, alternatively, subject to mandatory arbitration under the collective bargaining agreement [CBA].

Section 301 of the LMRA provides that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce … may be brought in any district court of the United States having jurisdiction of the parties” (29 USC § 185[a]. The Supreme Court has interpreted this section to preempt state law claims “founded directly on rights created by collective bargaining agreements” as well as “claims substantially dependent on an analysis of a collective bargaining agreement'”… . * * *

Section 301 [of the LMRA] … does not preempt state claims when state law confers an independent statutory right to bring a claim … .Even if resolution of a state-law claim “involves attention to the same factual considerations as the contractual determination … such parallelism [does not mandate preemption]” … .

A defendant’s reliance on the CBA is not enough to “inject—a federal question into an action that asserts what is plainly a state-law claim”… . * * *

A CBA cannot preclude a lawsuit concerning individual statutory rights unless the arbitration clause in the agreement is “clear and unmistakable” that the parties intended to arbitrate such individual claims … . “A clear and unmistakable’ waiver exists where one of two requirements is met: (1) if the arbitration clause contains an explicit provision whereby an employee specifically agrees to submit all causes of action arising out of his employment to arbitration; or (2) where the arbitration clause specifically references or incorporates a statute into the agreement to arbitrate disputes” … . “Arbitration clauses that cover any dispute concerning the interpretation, application, or claimed violation of a specific term or provision’ of the collective bargaining agreement do not contain the requisite clear and unmistakable’ waiver because the degree of generality [in the arbitration provision] falls far short of a specific agreement to submit all federal claims to arbitration'”… . Tamburino v Madison Sq Garden LP, 2014 NY Slip Op 0895, 1st Dept 2-11-14

 

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