You are here: / Employment Law
, , ,

Expired Fire Fighters’ Collective Bargaining Agreement Was Not “In Effect” Pursuant to Statute With Respect to Fire Fighters’ Mandated Contributions to Pension Plan

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a collective bargaining agreement entered into by the City of Yonkers Fire Fighters was not “in effect” within the meaning of Article 22 of the Retirement and Social Security Law.  For some purposes, the Retirement and Social Security Law deems a collective bargaining agreement to remain “in effect” after it has expired, until another agreement is reached.  If the collective bargaining agreement had been deemed to be “in effect” in this case, the firefighters would not have been required to contribute to their pensions, a requirement that was imposed only after the collective bargaining agreement expired.  Matter of City of Yonkers v Yonkers Fire Fighters …, 48, CtApp, 4-2-13

 

, , , ,

Religious Holidays in Teachers’ Collective Bargaining Agreement Violate the Establishment Clause 

A provision in a collective bargaining agreement that allowed teachers to take up to five religious holidays as paid days off was deemed unconstitutional by the Second Department:

“There is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief” … . Here, the clear wording of the religious holidays provision rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant. As a result, the religious holidays provision violated the Establishment Clause of the First Amendment of the United States Constitution … .   Matter of Board of Educ … v Mineola Teachers Assn, 2013 NY Slip Op 02070, 2011-11373, Index No 7359/11, 2nd Dept 3-27-13

 

, ,

“Emergency Exception” to Rule Hospital Is Not Vicariously Liable for Negligence of Non-Employee Physicians Did Not Apply

he Second Department determined the hospital’s (Winthrop-University Hospital’s) motion for summary judgment dismissing the cause of action alleging it was vicariously liable for the actions of a non-employee physician (Raio) should have been granted.  The hospital demonstrated that the “emergency room exception” to vicarious liability for the negligence of a non-employee physician did not apply:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . “However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … .

Here, Winthrop-University Hospital made a prima facie showing of its entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it was vicariously liable for the alleged malpractice of Raio by submitting evidence that Raio was not an employee of Winthrop-University Hospital, but rather, an attending physician at the hospital …. Furthermore, Winthrop-University Hospital made a prima facie showing that the emergency room exception was inapplicable, by demonstrating that the decedent was referred to Raio’s care by his own internist … .  Giambona v Hines, et al, 2013, NY Slip Op 01803, 2011-05943, Ind No 7819/07, 2nd Dept. 3-20-13

 

,

Employer’s Failure to Demonstrate a Proper Inquiry Was Made to Determine Whether Reasonable Accommodations Were Possible for a Disabled Employee Precluded Summary Judgment

In affirming the denial of a summary judgment motion brought by the defendant-employer in an employment (disability) discrimination action, the Fourth Department determined the employer did not eliminate all the triable issues of fact concerning whether reasonable accommodation to the employee’s needs was possible:

Assuming, arguendo, that defendant met its initial burden of establishing that “plaintiff could not perform the essential functions of the position of a” center manager …, we conclude that there are triable issues of fact “whether, ‘upon the provision of reasonable accommodations, [plaintiff was qualified to hold his position and to] perform [ ] in a reasonable manner’ the essential function of that position” … . [U]nder the broad[ ] protections afforded by the State [Human Rights Law], the first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested” … .Thus, “[t]he need for individualized inquiry when making a determination of reasonable accommodation is deeply embedded in the fabric of disability rights law . . . [E]mployers (and courts) must make a clear, fact-specific inquiry about each individual’s circumstance” … .In an employment discrimination case based on allegations of disability discrimination, “summary judgment is not available where there is a genuine dispute as to whether the employer has engaged in a good faith interactive process” … .Here, the court properly determined that defendant failed to eliminate all triable issues of fact with respect to, inter alia, whether defendant engaged in an interactive process to ascertain plaintiff’s needs and whether a reasonable accommodation was possible. Martin v United Parcel Service of America, Inc., 135, CA 12-01377, 4th Dept. 3-15-13

 

,

Interpretation of Unambiguous Language; Doctrine of Expressio Unius est Exclusio Alterious; Criteria for Declaratory Judgment 

In a contract action, the Second Department laid out the black letter law on the interpretation of unambiguous language, the doctrine of “exclusio unius est exclusio alterious,” and the criteria for a declaratory judgment.  The controversy concerned the amount of a bonus which was determined, according to the terms of the contract, by whether the plaintiff resigned or was fired, a disputed issue:

The defendant acknowledges that if the language of a written contract is free of ambiguity, the court must determine its meaning as a matter of law based upon the writing alone, without resort to extrinsic evidence …. Contrary to the defendant’s contention, the language of paragraph 4.2 clearly limits bonus compensation to a share of distributions based upon either the sale of all of RDL’s assets, or some of RDL’s assets. Pursuant to the doctrine of “exclusio unius est exclusio alterious,” which means that the expression of one thing is the exclusion of the other …, the references to the sale of assets implies that bonus compensation does not apply to distributions based upon something other than the sale of assets. If the parties had intended for bonus compensation to be based upon all distributions, these references to the sale of assets would have been unnecessary.  * * * The courts may issue declaratory judgments declaring the rights of the parties only where there is a justiciable controversy …. There is no justiciable controversy warranting declaratory relief if the controversy is over a future event “beyond the control of the parties and may never occur” … . However, in the instant case, the future event is in the control of RDL …, and is likely to occur … . Therefore, the question of whether the defendant was discharged without cause or resigned constitutes a justiciable controversy, which must be resolved by the Supreme Court after a trial.  Realtime Data, LLC v Melone, 2013 NY Slip Op 01540, 2011-11936, Index No 50021/10, 2nd Dept. 3-13-13

 

, ,

Hospital Generally Not Liable for Negligence of Private Attending Physician.

“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “.  Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13

 

, ,

labor law prevailing wage requirement does not apply to construction work for a volunteer fire department which is a not-for-profit corporation.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the prevailing wage requirement of Labor Law 220 did not apply to construction work for the Bath Volunteer Fire Department (BVFD) which had procured its own funding for a new firehouse:

After an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law. Once the subcontractors learned of the DOL’s determination, work on the project halted. In December 2006, BVFD agreed to indemnify [the contractor] and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed. …

The prevailing wage law covers contracts involving each of four specific public entities: the state, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law (see Labor Law § 220 [2]). It is undisputed that BVFD is a fire corporation as defined by the Not-For-Profit Corporation Law, and it is not one of the public entities named in the statute. Nevertheless, the Commissioner determined that BVFD could be deemed “the functional equivalent” of a “municipal department” within the meaning of the Labor Law. …

The “functional equivalent” test, however, was rejected by this Court in Matter of New York Charter School Assn. v Smith (15 NY3d 403 [2010]). There, the DOL deemed charter schools “public benefit corporations” because the schools serve a valuable public purpose and their existence is the result of a charter issued by a state or local municipal entity. Given those factors, the DOL determined that charter schools met the requirements established by the courts of this State for public work projects. We rejected that argument because while charter schools, like volunteer fire corporations, may be “quasi-public” in nature, they are not a specified public entity and thus, do not fit within the ambit of the statute (id. at 410).

Had the legislature intended to include volunteer fire corporations under the statute, it could easily have done so. Notably, in 2007, the legislature expanded the statute’s coverage to include contracts involving other types of entities, but only when it can be shown they were acting on behalf of the public entity … . Matter of M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017 [20 NY3d 469], CtApp 2-19-13

 

 

, , ,

residency requirements for school district employees are enforceable.

The Court of Appeals, in a full-fledged opinion by Judge Read, determined the requirement that employees of the School District of the City of Niagara Falls reside in the City of Niagara Falls serves a legitimate purpose and is not related to job performance. Therefore, only notice and an opportunity to respond to the allegation of a violation of the requirement are necessary to comply with due process. Matter of Beck-Nichols v Bianco, 2013 NY Slip Op 01015 [20 NY3d 540], CtApp, 2-19-13

 

,

Full-Time Employment, No Matter How It Is Labeled, Counted Toward Teacher Seniority.

In a full-fledged opinion by Justice Peradotto, the Fourth Department determined that a teacher, for seniority purposes, deserved credit for the entire period during which she taught full-time, no matter how the type of employment was labeled (per diem, substitute, probationary, etc.). Although the teacher technically was asked to “resign” until she passed a particular exam, the fact that she continued to work full-time under in a different employee-category was determinative.  Matter of Alessi vs Board of Education, Wilson School District, et al, 1380, CA 12-0119 Fourth Dept. 2-8-13

 

, , ,

Arbitrator’s Rulings Largely Unreviewable

An arbitrator’s interpretation of a collective bargaining agreement was vacated by the trial court.  The Fourth Department reversed and confirmed the arbitration award.  The decision includes a substantive discussion of the criteria that must be met before an arbitration award can be disturbed by a court.   “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable…”.  An arbitrator’s interpretation of a contract may be set aside “only if the [arbitrator] gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties…”.  Matter of the Arbitration between Professional, Clerical, Technical, Employees Association and Board of Education for Buffalo City School District, 1317, CA 12-01143 Fourth Dept. 2-1-13

 

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy