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Defendant Did Not Demonstrate Plaintiff was Special Employee​

The Second Department determined the defendant did not demonstrate plaintiff was its special employee and therefore plaintiff was not restricted to Workers’ Compensation as his remedy:

In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge…. “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'”….

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work… . Nolan v Irwin Contr, Inc, 2013 NY Slip Op 03648, 2nd Dept, 5-22-13

 

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Teachers’ and School Administrators’ Grievances Re Staff Cuts Stemming from School Closings Deemed Arbitrable​

The First Department determined the teachers’ and school administrators’ unions’ grievances concerning staff cuts inherent in the Department of Education’s (DOE’s) plan to close 24 underperforming schools were arbitrable, rejecting the DOE’s argument.  The arbitrator ruled the plan violated the collective bargaining agreement’s (CBA’s) requirements that staff cuts be done on the basis of seniority:

While broadly referencing educational laws and regulations, the DOE fails to identify any law that “prohibit[s], in an absolute sense, [the] particular matters [to be] decided”… [“[i]t is only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated”]). The underlying grievance in no way impinges on the authority of the SED (State Education Department] to approve a plan for the closure or the reopening of the 24 underperforming schools as new schools under the Education law (Education Law § 2590-h). Nor can the DOE rely on its own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs. Matter of Board of Educ of the City Sch Dist of the City of NY v Mulgrew, 2013 NY Slip Op 03580, 1st Dept, 5-16-13

 

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Ratified Release Precluded Employment Discrimination Action

The First Department reversed Supreme Court and granted defendant’s motion to dismiss plaintiffs employment discrimination, retaliation and hostile work environment claims.  Plaintiffs signed a release and received severance pay based upon the terms of the release.  The First Department determined plaintiffs’ claims that the signed the release under duress were foreclosed by their ratification of the release (accepting the severance pay):

The motion court should have dismissed the complaint in its entirety. “Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” …. A release will not be treated lightly because it is a “a jural act of high significance without which the settlement of disputes would be rendered all but impossible” …. Where the language is clear and unambiguous, the release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake … . *  *  *

Assuming arguendo that issues of fact exist as to duress and overreaching, plaintiffs are nevertheless barred from challenging the releases on those grounds because they ratified the releases. Ratification occurs when a party accepts the benefits of a contract and fails to act promptly to repudiate it…. Thus, a plaintiff cannot claim that he or she was compelled to execute an agreement under duress while simultaneously accepting the benefits of the agreement …  Allen v Riese Org, Inc, 2013 NY Slip Op 03547, 1st Dept, 5-16-13

 

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Elements of Retaliatory Termination Described

The Second Department explained the elements of retaliatory termination as follows:

Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices …. To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant’s employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action …. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext … .  Adeniran v State of New York, 2013 NY Slip Op 03441, 2nd Dept, 5-15-13

 

 

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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote:

Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her …. Nothing in the record indicates that a compelling competing interest warranted the exclusion. There is no finding that petitioner’s presence would cause trauma to the student or substantially interfere with his ability to testify. Indeed, the record contains no indication at all of the basis for the exclusion. Petitioner contends that in addition to her constitutional right she had an absolute right to confront witnesses under Education Law § 3020-a. However … there is no such absolute right under § 3020-a… .  Matter of Stergiou v NYC Dept of Educ, 2013 NY Slip Op 03432, 1st Dept, 5-14-13

 

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Investigatory Powers of NYS Commission on Public Integrity Explained​

The investigatory powers of the NYS Commission on Public Integrity were at the heart of this case.  The Commission was investigating allegations the petitioner (the Chief Executive Officer of the State University of New York Research Foundation) provided a job to the daughter of a prominent politician for which she was not qualified and did little work.  During the course of the investigation the Commission issued a Notice of Reasonable Cause (NORC) to the petitioner alleging a violation of Public Officers Law 74 (3) and requiring, by subpoena, the petitioner to provide testimony.  The petitioner argued that the commission’s power to issue a subpoena, under the controlling statutes and regulations, ended upon the issuance of the NORC.  In rejecting that argument, and accepting the Commission’s contrary argument that its power to investigate continued after the issuance of an NORC, the Third Department wrote:

Notably, the Commission’s interpretation of its regulation is consistent with the overall purpose and spirit of Executive Law § 94, which is to “strengthen the public’s trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and  fair and just resolution of all matters” (19 NYCRR 941.1…).   Following the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations.  Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute. Conversely, to interpret the regulation as precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.  In the Matter of O’Connor v Ginsberg…, 514200, 3rd Dept, 5-9-13

 

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“Service Charge” Could Be “Gratuity” to Which Employer Not Entitled

In upholding the sufficiency of a complaint seeking damages for violations of Labor Law section 196-d, alleging that a 15 to 20% “service charge” on catering and hospital forms was actually a “gratuity,” the Second Department wrote:

Labor Law § 196-d provides, in pertinent part, that “[n]o employer . . . shall demand or accept, directly or indirectly, any part of the gratuities received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” In Samiento v World Yacht Inc. (10 NY3d 70, 74), …the Court of Appeals held that depending upon the circumstances, even a mandatory service charge added to a bill “may be a charge purported to be a gratuity’ within the meaning of [Labor Law § 196-d].” The Court stated that a mandatory service charge can purport to be a gratuity “when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees” (id. at 81). “[T]he standard under which a mandatory charge or fee is purported to be a gratuity should be weighed against the expectation of the reasonable customer” and the “reasonable patron standard should govern when determining whether a banquet patron would understand a service charge was being collected in lieu of a gratuity” (id. at 79). Martin v Restaurant Assoc Events Corp, 2013 NY slip Op 03304, 2nd Dept, 5-8-13

 

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Discrimination (Re Licensing) Based on Criminal Conviction Disallowed

The First Department annulled a determination denying petitioner’s renewal application for a stationary engineer license finding no rational basis for the denial. Petitioner had been convicted of participating in a kickback scheme.  The First Department noted that the equipment maintenance responsibilities of a stationary engineer were not implicated by the conviction.  The First Department wrote

[The actions underlying the conviction] bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses (see Correction Law § 752[1]).The record further shows that respondent failed to afford petitioner the mandatory presumption of rehabilitation attendant to his certificate of relief from disabilities (see Correction Law § 753[2]), and appeared to have disregarded the additional evidence of rehabilitation submitted by petitioner. … We further find that respondent could not have rationally found petitioner to pose an unreasonable risk to public safety or welfare so as to satisfy the second exception to the general prohibition (see Correction Law § 752[2]). Petitioner disclosed his 2006 conviction, based on acts occurring in 2005 and earlier, on his license renewal applications from 2007 through 2010, all of which were granted. Matter of Dellaporte v NYC Dept of Buildings, 2013 NY Slip Op 03281, 1st Dept, 5-7-13

 

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No Notice of Claim Required for Discrimination Claims Against Town

The issue before the Fourth Department was whether an action against the North Bailey Volunteer Fire Co alleging discrimination and tort causes of action must be preceded by a notice of claim pursuant to Municipal Law 50-e.  The Court concluded that, because the volunteer fire company was a “fire protection district,” it was part of the town and, therefore, a notice of claim was required as a condition precedent to suits in tort.  [The court noted that a “fire district,” in contrast, is a distinct legal entity and, therefore, not part of a town for purposes of a notice of claim.]  The discrimination claims, brought under the Human Rights Law, were deemed exempt from the notice of claim requirement because they were not “founded in tort.”  The tort claims, on the other hand, were subject to the notice of claim requirement. Thygesen v North Bailey Volunteer Fire Co, Inc, et al, CA 12-00789, 290, 4th Dept, 5-3-13

 

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Broad Arbitration Clause Required Arbitration of Topic Not Directly Covered by Collective Bargaining Agreement

In upholding the lower court’s determination that a matter involving “shift swapping” in the sheriff’s department was subject to arbitration even though the topic was not directly covered by the collective bargaining agreement (CBA), the Fourth Department wrote:

In determining whether the parties agreed to arbitrate the dispute at issue, “[o]ur review . . . is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom” …. “Where, as here, there is a broad arbitration clause and a ‘reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court ‘should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … .  Matter of Ontario County…, CA 12-01766, 309, 4th Dept, 5-3-13

 

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