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Supreme Court Should Determine Only the Threshold Issue of Whether a Matter Is Arbitrable as Encompassed by the General Subject Matter of the Collective Bargaining Agreement Without Considering the Merits of the Underlying Claim (Which Should Be Left to the Arbitrator)

The Fourth Department determined Supreme Court erred when it held that the parties had not agreed to arbitrate the issue (concerning a promotion).  The Fourth Department explained the criteria, noting that Supreme Court should not have been concerned with the merits of the underlying claim, but rather only the threshold issue of arbitrability:

The issue is governed by the Court of Appeals’ two-prong test to determine “whether a grievance is arbitrable” … . 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 arbitration is not prohibited, we then in the second prong “examine the CBA [collective bargaining agreement] to determine if the parties have agreed to arbitrate the dispute at issue,” which is known as “the did-they-agree-to-arbitrate’ prong” … .

…Supreme Court erred in concluding that the parties did not agree to arbitrate this issue. “It 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” … . …  “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’ collective bargaining agreement, 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 [collective bargaining agreement], and whether the subject matter of the dispute fits within them’ ” … . Matter of County of Herkimer v Civil Serv Employees Assn Inc, 2015 NY Slip Op 00125, 4th Dept 1-2-15

 

Conflict of Interest Waived Where Respondent Knew of the Conflict and Participated in Prior Proceedings for Some Time

he Fourth Department determined a disqualifying conflict of interest existed between respondent and petitioner’s attorney, but that respondent had waived the conflict by participating in prior aspects of the case without objection:

…[R]espondent established that she had a prior attorney-client relationship with petitioner’s attorney, that the issues in the two litigations are substantially related, each involving ownership of the same parcel of property, and that her interests are adverse to those of petitioner … . Usually, that would create an “irrebuttable presumption of disqualification” …, but many courts have nevertheless denied disqualification upon finding that a party has waived any objection to the purported conflict of interest … .

In determining whether a party has waived any objection to a conflict of interest, “courts consider when the challenged interests became materially adverse to determine if the party could have moved [for disqualification] at an earlier time . . . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation . . . Further, where a motion to disqualify is made in the midst of litigation where the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage”… . Matter of David C Peters, 2015 NY Slip Op 00042, 4th Dept 1-2-15

 

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Appeal Dismissed Pursuant to Fugitive Disentitlement Doctrine Reinstated Upon Posting of a Bond

The Fourth Department, which had previously dismissed respondent’s appeal pursuant to the fugitive disentitlement doctrine, reinstated the appeal upon respondent’s posting a $25,000 bond:

We previously dismissed respondent’s appeal from an “order of dismissal” entered by Family Court upon declining to sign an order to show cause seeking to vacate two orders entered on respondent’s default. One of the orders determined that respondent was in willful violation of a child support order, and the other order committed him to a term of six months of incarceration … . The court also issued a warrant for respondent’s arrest … . We determined that the fugitive disentitlement theory applied both to respondent’s order to show cause to vacate the default orders and to the subsequent appeal … . We nevertheless granted respondent leave to move to reinstate his appeal upon the posting of an undertaking in the amount of $25,000 with the court within 60 days of service of our order with notice of entry … . Respondent timely posted the undertaking and his motion to reinstate the appeal was granted by this Court.

“The principal rationales for the doctrine [of fugitive disentitlement] include: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the nonfugitive party”… . By posting an undertaking in the amount of the child support arrears, we conclude that respondent has demonstrated that he is not flouting the judicial process and has provided a means of enforcement of the court’s order determining the amount of child support arrears in the event that the court’s determination is unchanged (see Family Ct Act § 471; CPLR 2502 [c]). We conclude that the fugitive disentitlement theory no longer applies to respondent … , and thus we reverse the order insofar as appealed from and remit the matter to Family Court to determine respondent’s application to vacate the orders entered on his default and the warrant for his arrest. Matter of Shehatou v Louka, 2015 NY Slip Op 00086, 4th Dept 1-2-15

 

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Because the Habeas Corpus Petition Sought the Transfer of Kiko, A Chimpanzee, to Another Facility, Rather than Immediate Release, the Petition Must Be Denied, Regardless of Whether Kiko is Deemed a Person for Purposes of the Writ

The Fourth Department determined that a habeas corpus petition seeking the transfer of a chimpanzee, Kiko, to a facility with better conditions could not be granted, even if Kiko is deemed a person, because the petition did not seek Kiko’s immediate release:

Regardless of whether we agree with petitioner’s claim that Kiko is a person within the statutory and common-law definition of the writ, ” habeas corpus relief nonetheless is unavailable as [that] claim[], even if meritorious, would not entitle [Kiko] to immediate release’ ” … . It is well settled that a habeas corpus proceeding must be dismissed where the subject of the petition is not entitled to immediate release from custody … . Here, petitioner does not seek Kiko’s immediate release, nor does petitioner allege that Kiko’s continued detention is unlawful. Rather, petitioner seeks to have Kiko placed in a different facility that petitioner deems more appropriate. Matter of Nonhuman Rights Project Inc v Presti, 2015 NY Slip Op 00085, 4th Dept 1-2-15

 

Contract Could Potentially Be Performed Within a Year—Dismissal on Statute of Fraud Grounds Properly Denied

The Fourth Department affirmed the denial of defendant’s motion to dismiss the complaint on the ground that the oral agreement violated the statute of frauds.  The court determined the contract was capable of being performed within a year:

“As long as [an] agreement may be fairly and reasonably interpreted’ such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … . Here, although the parties’ original agreement provided that the purchase price would be paid in monthly installments over a period of five years, the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. Thus, because plaintiff could have fully performed the alleged agreement within the first year by paying defendant such a lump sum, defendant did not meet her burden of establishing that the statute of frauds renders the agreement void and unenforceable … . Stevens v Perrigo, 2014 NY Slip Op 08195, 4th Dept 11-21-14

 

Defendant Not Given Adequate Time to Decide Whether to Testify Before the Grand Jury—Conviction Reversed

In reversing defendant’s conviction, the Fourth Department determined defendant was not given adequate time to decide whether he wished to testify before the grand jury:

We agree with defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testify before the grand jury. The prosecutor notified defendant and his counsel at the arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict defendant, he was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of defendant’s intent to testify. The prosecutor offered defendant the opportunity to testify before the grand jury before it filed the indictment, but refused defendant’s request to testify before a different grand jury.

We agree with defendant that he was not given “reasonable time to exercise his right to appear as a witness” before the grand jury (CPL 190.50 [5] [a]). “CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” … . Under “the particular facts” of this case (id. ), including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation, we conclude that defendant did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury … . People v Hymes, 2014 NY Slip Op 08202, 4th Dept 11-21-14

 

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The “Special Facts” Exception to the Retroactive Applicability of a Statute Does Not Apply/A Statute Cannot Be Interpreted to Render Language Superfluous/A Municipality Cannot Challenge the Constitutionality of a State Statute/Lack of Capacity to Sue Does Not Deprive the Court of Jurisdiction

The Fourth Department determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called “Overburden expenses”) incurred prior to 2006, when the medicaid “Cap Statute” was enacted.  The court dealt with several issues, including:  (1) the retroactive effect of the 2012 amendment; (2) the effect of the amendment cannot be avoided under the “special facts” exception; (3) the amendment cannot be interpreted to render language superfluous; (4) municipalities cannot challenge the constitutionality of statutes; and (4) the lack of the capacity to sue, unlike standing, does not go to the jurisdiction of the court:

Section 61 clearly states that no further claims for reimbursement of overburden expenditures will be paid, notwithstanding Social Services Law § 368-h. Thus, the unequivocal wording of section 61 retroactively extinguishes petitioner’s right to submit claims for reimbursement of overburden expenditures made prior to 2006. “The retroactivity of a statute which is expressly retroactive, as here, will generally be defeated only if such retroactivity would violate due process or some other specific constitutional precept” … .

Here, however, in granting the cross motion, Supreme Court ordered that petitioner’s claims be “treated under Social Services Law § 368-a as [they] existed at the time that Petitioner incurred the Overburden expenses on Respondents’ behalf, pursuant to the special facts exception.” We agree with respondents that the special facts exception does not apply in this situation. Insofar as relevant here, that exception provides that “a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on [a claim] until after the law had been amended to authorize denial of the” claim … . There is no indication that resolution of the claims at issue was delayed until section 61 was enacted. * * *

It is well settled that, in interpreting a statute, a court ” must assume that the Legislature did not deliberately place a phrase in the statute that was intended to serve no purpose’ ” …, and must avoid an interpretation that ” result[s] in the nullification of one part of [a statute] by another’ ” … . Thus, “[a] construction that would render a provision superfluous is to be avoided” … . * * *

In its cross motion for summary judgment, petitioner sought, inter alia, judgment declaring that section 61 is unconstitutional because the statute deprived petitioner of due process by removing its vested rights. “[T]he traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies–—counties, towns and school districts—–are merely subdivisions of the State, created by the State for the convenient carrying out of the State’s governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants” … .

It is equally well settled, however, that “[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived” … . Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14

 

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Late Motion to Amend Answer Should Not Have Been Granted/Violation of Vehicle and Traffic Law Established Negligence as a Matter of Law/Striking of Affirmative Defense Based on Brake Failure Proper Because Brakes Were Replaced (Spoliation of Evidence)/Fact that Defendant-Driver’s Negligence Was Sole Proximate Cause of the Accident As a Matter of Law Did Not Preclude Comparative Negligence Affirmative Defense

The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus.  The Fourth Department determined defendants’ late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver’s violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff’s part should not have been dismissed:

We agree with plaintiff that Supreme Court abused its discretion in granting defendants’ cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion … . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation … . After the accident, Cerrone replaced the payloader’s allegedly defective brake calipers and discarded the old calipers. * * *

Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Here, plaintiff met her initial burden on the motion by establishing as a matter of law that ” the sole proximate cause of the accident was [Freeman]’s failure to yield the right of way’ ” to the school bus in violation of section 1143 … . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot … . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident … . * * *

…T]he court erred in dismissing their affirmative defense of plaintiff’s culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, “[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages.” The statute encompasses any culpable conduct that had a “substantial factor in causing the harm for which recovery is sought” … . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants’ negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect … . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14

 

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Employer Not Required to Accommodate Employee with Epilepsy with Permanent Light-Duty Assignment

The Fourth Department determined petitioner’s employer, the Erie County Sheriff’s Office (ECSO), was not required to accommodate the petitioner, who has epilepsy, with permanent light duty employment:

“Pursuant to Executive Law § 296 (3) (b), employers are required to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined in relevant part as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner” (… see § 292 [21-e]). “In reviewing the determAdd Newination of SDHR’s Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence’ ” … .

Petitioner, a deputy sheriff assigned to the position of “inmate escort” at ECSO’s correctional facility, does not dispute that her epilepsy does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability … . Thus, petitioner also does not dispute that she cannot perform the essential functions of an “inmate escort” without presenting a direct threat to her own safety and others in the workplace (see 42 USC § 12113 [b]…). In order to accommodate her disability, however, petitioner ultimately requested assignment to a light-duty position. It is well settled that an employer is neither required to create a new light-duty position to accommodate a disability (see 9 NYCRR 466.11 [f] [6]…), nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities … . The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one … . Although ECSO maintained a “light-duty” program (Policy # 03-01-07, Light Duty Assignments), the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a “Transitional Duty Assignment (TDA)” until the employee is medically released to resume regular duties. The express intent of ECSO’s “policy is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation.” Petitioner’s epilepsy seizure disorder was described by her own treating physician as “long-term.” Thus, we conclude that there is no basis to disturb SDHR’s (State Division of Human Rights’) determination that petitioner’s disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Matter of Coles v New York State Div of Human Rights, 2014 NY Slip Op 07788, 4th Dept 11-14-14

Similar issue and result in Matter of County of Erie v New York State Div of Human Rights, 2014 NY Slip Op 07829, 4th Dept 11-14-14

 

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Complaint Did Not State Causes of Action for Replevin or Conversion Because the Specific Funds Involved Were Not Sufficiently Identified/Fraud Cause of Action Stated—Inference of Fraud Sufficiently Raised from Circumstances Alleged

The Fourth Department determined the complaint did not state causes of action for replevin and conversion, but did state a cause of action for fraud.  The motions to dismiss the replevin and conversion causes of action pursuant to CPLR 3211(a)(7) should therefore have been granted.  The basis of the complaint was the allegation that defendants embezzled as much as $4 million from an incapacitated person (Aida Corey):

Addressing first the replevin cause of action, we note that replevin is a remedy employed to recover a specific, identifiable item of personal property …, and “[o]rdinary currency, as a rule, is not subject to replevin” … . Unless the currency can be specifically identified, i.e., it consists of specific, identifiable bills or coins, replevin does not lie … . Here, the amended complaint alleges that the individual defendants “have used some or all of Aida Corey’s $4 million in cas[h] to purchase real and personal property and other tangible assets” and that they “have taken approximately $4 million of Aida Corey’s cash and/or personal property.” The sole focus of the parties, both in Supreme Court and on appeal, however, has been on the money allegedly taken by the … defendants, and we therefore deem abandoned any allegations by plaintiffs concerning personal property … . We thus conclude that the amended complaint fails to state a cause of action for replevin, because there is no “specifically identified” money that plaintiffs seek to recover … .

With respect to the plaintiff guardians’ cause of action for conversion, the amended complaint likewise alleges that the individual defendants “have taken approximately $4 million of Aida Corey’s cash and/or personal property,” but as with the replevin cause of action we conclude that plaintiffs have abandoned any allegations concerning personal property … . Money may be the subject of a cause of action for conversion only if “it can be identified and segregated as a chattel can be” …, i.e., “where there is a specific, identifiable fund” … . Contrary to the contentions of plaintiff guardians, the sums allegedly converted here do not constitute the type of specific, identifiable fund that would support a conversion cause of action … .

…[T]he court properly refused to dismiss the fraud cause of action against them. A fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages … . The allegations in the complaint must set forth the “basic facts constituting the fraud” …, to “inform a defendant of the complained-of incidents” … . The Court of Appeals has “cautioned that [CPLR] 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting the fraud” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [internal quotation marks omitted]). Here, much of the detail surrounding the alleged fraud is ” peculiarly within the knowledge’ ” of the … defendants …, and we agree with plaintiffs that an inference of fraud arises from the circumstances alleged in the amended complaint … . Heckl v Walsh, 2014 NY Slip Op 07787, 4th Dept 11-14-14

 

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