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DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the doctrine of tax estoppel prevented defendants from asserting facts contrary to the information provided in the Real Property Transfer Report (RPT report). Plaintiff had a right of first refusal on the sale of defendants’ commercial property. Defendants sold the property without giving plaintiff the right of first refusal, claiming it was not a bona fide sale because the same person controlled the seller and the buyer, an allegation negated by the RPT report:

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Under the doctrine of tax estoppel, ” [a] party to litigation may not take a position contrary to a position taken in [a] tax return’ ” … . Here, 428 Co. and SS jointly submitted a Real Property Transfer Report (RPT report) … to the Department of Taxation and Finance in which they certified that the transfer of the subject property was not a “sale between related companies or partners in business.”  …

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The sworn statements made in the RPT report further estop defendants from asserting that various mortgage assumptions worth over $2 million constituted part of the purchase price, and that plaintiff was therefore unwilling to purchase the property “at the same price and under the same terms” … . The instructions for the tax form require that any mortgage assumptions be listed as part of the “Full Sale Price” on the RPT report, and [defendants] did not do so here. … [Defendants] listed only a cash sale price of $238,493 as the “Full Sale Price” on the RPT report, and it is undisputed that plaintiff was ready, willing, and able to purchase the property for that amount. Amalfi, Inc. v 428 Co., Inc., 2017 NY Slip Op 06770, Fourth Dept 9-29-17

 

REAL ESTATE (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/CONTRACT LAW (REAL ESTATE, RIGHT OF FIRST REFUSAL, DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX LAW  (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX ESTOPPEL (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined the complaint in this slip and fall case was properly dismissed. Plaintiff’s daughter slipped and fell on water on the bathroom floor on defendants’ property. The court held that water on the floor near the shower was not actionable:

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Defendants’ submissions established that the daughter slipped on the bathroom floor when she stepped out of the shower to retrieve a brush while the water was running. The daughter stated during her deposition that, although the shower curtain had been closed and no water was falling outside the bathtub prior to the accident, as a result of her opening the curtain while the water was running, there was some water on the floor around the bathtub when she stepped out of the bathtub. Contrary to plaintiff’s contention, ” a wet floor—especially in a bathroom where one can expect some water to make its way out of the shower to the floor—is not enough, standing alone, to establish negligence’ ” …  Here, defendants established that the amount of water present on the floor “was a condition that was necessarily incidental’ to the use of the shower[] . . . and thus that it did not by itself constitute a dangerous condition”… . Defendants further established that the accident was not attributable to a defect in the floor or the bath towel that they provided to the daughter, which she placed on the floor beside the bathtub… . Furthermore, even assuming, arguendo, that a dangerous condition existed, we conclude that defendants met their burden by establishing that they neither created the dangerous condition nor had actual or constructive notice thereof … . Keller v Keller, 2017 NY Slip Op 06773, Fourth Dept 9-29-17

NEGLIGENCE (WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/BATHROOMS (SLIP AND FALL, WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/NECESSARY AND INCIDENTAL (SLIP AND FALL, WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT)

STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT).

The Fourth Department determined a stipulation which was not merged into the judgment of divorce should not have been dismissed as unenforceable:

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It is well settled that a party to a stipulation that is incorporated but not merged into a judgment of divorce “cannot challenge the [enforceability of the] stipulation by way of motion but, rather, must do so by commencement of a plenary action” … . Conversely, a party seeking to enforce the terms of such a stipulation may do so either by a motion to enforce the judgment … . In this case, the issue whether the stipulation was enforceable was not properly before the court because defendant did not commence a plenary action challenging its enforceability. Rather, plaintiff moved to enforce the judgment incorporating the stipulation, and defendant effectively conceded that the stipulation was enforceable when she asserted that the only questions before the court were the valuation of her master’s degree and the extent of plaintiff’s marital interest therein. Thus, we conclude that the court erred in denying plaintiff’s motion on the ground that the stipulation was unenforceable … . Anderson v Anderson, 2017 NY Slip Op 06786, Fourth Dept 9-29-17

FAMILY LAW (DIVORCE, STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))/STIPULATIONS (DIVORCE, STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))/DIVORCE (STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))

EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence was insufficient to support the finding that respondent was legally responsible for the child, therefore the neglect finding could not stand:

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… [T]he evidence does not support Family Court’s determination that he is a person legally responsible for the child … , and the court therefore erred in determining that he neglected the child … . Even giving deference to the court’s credibility determinations … , we conclude that petitioner’s witnesses established that respondent and the mother of the child had been living together for some unspecified period of time, but there was nothing further to show that respondent acted “as the functional equivalent of a parent in a familial or household setting” … . There was no testimony that respondent, the mother, and the child were “living together as a family” … , or that respondent provided childcare or financial support, or performed any household duties … . Matter of Kameron V. (Eva V.), 2017 NY Slip Op 06782, Fourth Dept 9-29-17

FAMILY LAW (EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT))

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WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department determined the denial of youthful offender status was not appealable as it was encompassed by the waiver of appeal. The Fourth Department further determined the purported waiver of defendant’s Fourth Amendment rights as a condition of probation was not valid because there was no relationship between the waiver and the sexual-abuse offense to which defendant pled guilty. The invalid conditions allowed searches of his person, home and personal property, breath, blood and urine testing, and prohibited use or possession of alcohol:

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Defendant … contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence … . We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation … . The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse … . For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. People v Saraceni, 2017 NY Slip Op 06732, Fourth Dept 9-29-17

CRIMINAL LAW (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/CONSTITUTIONAL LAW (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/SEARCH AND SEIZURE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/PROBATION (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/WAIVER OF APPEAL (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/SEXUAL ABUSE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))

DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT). 

The Fourth Department determined defendant had adequately raised a Batson challenge to the prosecutor’s removal of a juror. Because the next steps in the Batson procedure were not taken the case was remitted for that purpose (after a jury trial and conviction):

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We agree with defendant that he met his initial burden on his Batson application by demonstrating that the prosecution exercised a peremptory challenge to remove a member of a cognizable racial group from the venire, “and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenge[] to exclude [that] potential juror[] because of [her] race”… . We note that “the first-step burden in a Batson challenge is not intended to be onerous” … , and that the initial burden is met when ” the totality of the relevant facts gives rise to an inference of discriminatory purpose’ ” … . Here, defendant is African-American, and the first prospective juror to be peremptorily challenged by the People was the only African-American on the panel. Neither the People nor defendant asked any questions of the prospective juror at issue during voir dire, and County Court’s general questioning of the panel raised no issues that would distinguish her from the other prospective jurors. Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual … . We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose … . People v Davis, 2017 NY Slip Op 06790, Fourth Dept 9-29-17

CRIMINAL LAW (DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/JURORS (CRIMINAL LAW, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/BATSON PROCEDURE (JURORS, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))

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CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, MULTIPLE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT).

The Fourth Department determined members of the Buffalo Jills, cheerleaders for the Buffalo Bills football team, were properly certified as a class to bring an action alleging Labor Law violations (failure to compensate) and fraud. The Fourth Department noted that evidence submitted in the reply papers was properly considered because the defendants had the opportunity to address the evidence and further noted Supreme Court properly certified three law firms as class counsel:

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Class action is appropriate only if all five of the requirements are met … , and the burden of establishing those requirements is on the party seeking certification … . The first prerequisite is that the class must be so numerous that joinder of all of its members is impracticable (see CPLR 901 [a] [1]). …

The second prerequisite is that there are common questions of law or fact that predominate over questions affecting only individual members (see CPLR 901 [a] [2]). …

The third prerequisite is that the class representatives’ claims are typical of the claims of the class (see CPLR 901 [a] [3]). …

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The fourth prerequisite is that the class representatives will fairly and adequately protect the interest of the class (see CPLR 901 [a] [4]). …

The fifth prerequisite is that class action is the superior method to fairly and efficiently adjudicate the controversy (see CPLR 901 [a] [5]).  …

… Once the section 901 (a) prerequisites have been met, a court must consider the class members’ interest in prosecuting individual actions; the impracticality or inefficiency of prosecuting or defending separate actions; the extent and nature of any separate action already pending; the desirability of the forum; and the difficulties likely to be encountered in managing a class action (see CPLR 902…) …

… [T]he court properly certified three law firms as class counsel. It is within the court’s discretion to allow representation by more than one counsel … . Ferrari v The Natl. Football League, 2017 NY Slip Op 06755, Fourth Dept 9-29-17

 

CIVIL PROCEDURE (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/EMPLOYMENT LAW (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/ATTORNEYS (CLASS ACTION,  CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/REPLY PAPERS (CIVIL PROCEDURE, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED (FOURTH DEPT))/CLASS ACTIONS (EMPLOYMENT LAW, (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))

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SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees and 18% interest in this breach of contract action was error. Summary judgment cannot be granted by the court, sua sponte, on a ground (account stated) not raised in the motion papers:

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… [T]he court erred in awarding attorney’s fees and prejudgment interest at the rate of 18% based on an unpleaded account stated theory. The record establishes that plaintiff neither pleaded an account stated theory nor moved for summary judgment on that ground … . It is well settled that, generally, a party may not obtain summary judgment on an unpleaded cause of action… , but there is an exception to that general rule where the proof supports such a cause of action and the opposing party has not been misled to its prejudice … . Here, we conclude that defendant was substantially prejudiced by the court’s sua sponte reliance on the unpleaded account stated theory … . Indeed, we note that plaintiff’s moving and reply papers did not even mention that theory, nor did they mention attorney’s fees or interest at the rate of 18% per annum … .

We conclude that the court further erred in searching the record pursuant to CPLR 3212 (b) and granting summary judgment on an account stated theory to plaintiff, the moving party. Although a court has the authority to search the record and grant summary judgment to a nonmoving party (see id.), that authority is applicable “only with respect to a [claim] or issue that is the subject of the motions before the court”… . Here, plaintiff was the moving party and an account stated theory was not the subject of the motion before the court. Diamond Roofing Co., Inc. v PCL Props., LLC, 2017 NY Slip Op 06745, Fourth Dept 9-29-17

 

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/CONTRACT LAW (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUMMARY JUDGMENT  (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES  (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petitioner-county’s motion to permanently stay arbitration should not have been granted. The respondent-union filed a grievance on behalf of a part-time sheriff’s dispatcher when another dispatcher was made full-time:

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The Court of Appeals has set forth a two-pronged test to determine “whether a grievance is arbitrable” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [Johnstown] …). In the first prong of the test, known as “the may-they-arbitrate’ prong,” we “ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . If we conclude that arbitration is not prohibited, we move to the second prong, known as “the did-they-agree-to-arbitrate’ prong,” in which we “examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue” … .

Here, petitioner does not contend that arbitration of [the dispatcher’s] grievance is prohibited, and we therefore are concerned only with the second prong of the Johnstown test. With respect to that issue, “[i]t is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim”… . Furthermore, “[w]here, 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 Lewis County (CSEA Local 1000, AFSCME, AFL-CIO, Lewis County Sheriff’s Empls. Unit #7250-03, Lewis County Local 825), 2017 NY Slip Op 06743, Fourth Dept 9-29-17

 

ARBITRATION (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/MUNICIPAL LAW  (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a matter concerning the proper pay for a teacher was arbitrable under the collective bargaining agreement (CBA). The school districts (petitioner’s) motion to permanently stay arbitration should not have been granted:

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… [R]espondent (union) filed a grievance on behalf of one of its members, a teacher, alleging that petitioner had violated the provisions of the CBA that require petitioner to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules. …

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It is well settled that courts must apply a two-part test to determine whether a matter is subject to arbitration under a CBA … . “First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ ” … . If there is no such prohibition, the court must examine the CBA to determine “whether the parties in fact agreed to arbitrate the particular dispute” … . …

… [T]he arbitration of disputes concerning public school teachers’ salaries is not proscribed by law or public policy, and thus only the second prong is at issue … .

… The dispute concerns whether petitioner placed the teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA …  Issues concerning whether the CBA supports a grievance arising from the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, “are matters involving the scope of the substantive [CBA] provisions and, as such, are for the arbitrator” to resolve … . … [T]he clause in the CBA stating that an arbitrator has “no power to alter, add to, or detract from” the CBA does not render the dispute nonarbitrable … . Matter of Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Fourth Dept 9-29-17

ARBITRATION (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EDUCATION-SCHOOL LAW  (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/TEACHERS (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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