Civil Serv. Empls. Assn., Inc. v Nassau Health Care Corp.
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Civil Serv. Empls. Assn., Inc. v Nassau Health Care Corp. 2012 NY Slip Op 31254(U) April 27, 2012 Supreme Court, Nassau County Docket Number: 10655/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice CIVIL SERVICE EMPLOYEES ASSOCIATION , INC. , LOCAL 1000 , A.F. L.- I.O. , by its LOCAL 830 Plaintiff TRIALIIAS PART 31 NASSAU COUNTY Index No. : 10655/09 Motion Seq. Nos. : 01 Motion Dates: 01/27/12 02/29/12 - against NASSAU HEALTH CARE CORPORATION Defendant. The followine papers have been read on these motions: Papers Numbered Notice of Motion (Seq. No. 01), Affidavit. Affirmation and Exhibits and Memorandum of Law Notice of Cross- Motion (Seq. No. 02) and Memorandum of Law and Exhibits Defendant' s Memorandum of Law in Further Support of its Motion (Seq. No. 01) and in Opposition to Plaintiffs Cross- Motion (Seq. No. 02) Plaintiffs Memorandum of Law in Further Support of Cross- Motion (Seq. No. 02) Upon the foregoing papers , it is ordered that the motions are decided as follows: Defendant moves (Seq. No. 01), pursuant to CPLR 3211 , for an order of this Cour granting summary judgment , dismissing plaintiff s Verified Complaint. Plaintiff opposes the motion and cross-moves (Seq. No. 02), pursuant to CPLR 3212 , for an order of this Cour 3211 as the statutory basis for relief; however , its papers indicate that it intends the motion to be one seeking Sumar Judgment under CPLR 3212. The moving defendant cites CPLR [* 2] granting summar judgment in its favor. Defendant opposes the cross-motion. The instant motion and cross-motion arise from a declaratory action commenced by plaintiff to confirm a June 2009 arbitration award of Arbitrator Michael S. Alonge , sustaining plaintiff s underlying class action grievances regarding the reinstatement rights of two employees , Sweta Parikh (" Parikh" ) and James Gilmarin (" Gilmarin Parikh was hired by defendant in September 1996 , for the position of Med Tech I , and was laid off in December 2003. She was a full time employee at the time she was laid off. In August 2006 , she was reappointed to the same position from a preferred list. Gilmarin was first employed by Nassau County Medical Center in April 1995. He was transferred to defendant facility in 1999 and laid off in Januar 2005. According to plaintiff Gilmarin was full time at the time he was laid off. In November 2005 , Gilmarin was reinstated from a preferred list to the same position as a par-time employee. He resigned from this partime position in April 2006 , and was reinstated to the same position as a full- time employee in February 2007. Defendant regarded the two employees , Parikh and Gilmartin , as " new" employees and under the Collective Bargaining Agreement (" CBA"), new employees receive health benefits after six months of service. Further , Parikh and Gilmartin , as " new" employees , were not entitled to the vacation leave entitlements and/or accruals that they previously received during their initial full- time tenure. In March 2007 , a class action grievance, alleging violations of certain sections of the CBA , was fied by plaintiff on behalf of Parikh and Gilmarin. Plaintiff alleged that defendant failed to credit Parikh and Gilmarin with the proper time accruals upon their reinstatement and [* 3] also failed to reinstate health insurance benefits to Parikh and Gilmartin upon their reinstatement. A hearing was conducted on April 22 , 2008 , June 25 , 2008 , and July 7 , 2008 , where Arbitrator Michael S. Alonge issued an advisory award in Januar 2009 sustaining the grievances. Plaintiff commenced the underlying action in June 2009 alleging a breach of contract and seeking declaratory relief. With respect to Parikh , defendant contends that the long-standing practice between the paries has been that employees who are rehired after being separated from employment for more than one year return as " new " employees. In Gilmarin s case , he retured within the year after par- time service. He did not receive health benefits as a par-time employee and , therefore , was not entitled to immediate restoration of such benefits upon his return to full-time status. Plaintiff argues that Civil Service ~ 81 applies to the dispute at bar , since the time of expiration of an employee s placement on a preferred list is four years. Because both Parikh and Gilmartin returned to service within that time period , the statute provides for the full restoration of benefits they enjoyed before they were separated from employment. With respect to Parkh , plaintiff argues that defendant is estopped from denying her such benefits as its Human Resources Vice- president represented that Parkh was entitled to full restoration of benefits and she relied on the representation to her detriment. Further , health benefits and other benefits have been long regarded as inclusive in an employee s wages and , if the statute provides for restoration of salary, such salar includes leave entitlement and health benefits. The standards for summar judgment are well settled. A Court may grant summar judgment where there is no genuine issue of a material fact , and the moving par is therefore [* 4] See Alvarez entitled to summar judgment as a matter oflaw. v. Prospect Hospital, 68 N. Y.2d 320 508 N. Y.S.2d 923 (1986). Thus , when faced with a sumar judgment motion , the Cour' task is not to weigh the evidence or to make the ultimate determination as to the truth of the See Miler matter; its task is to determine whether or not there exists a genuine issue for trial. Journal-News 211 A.D. 2d 626 620 N. Y.S.2d 500 (2d Dept. 1995). The burden on the pary moving for summar judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issue of fact. See Ayotte v. Gervasio 81 N. Y.2d 2d 463 1062 601 N. (1993). If this initial burden has not been met , the motion must be denied without regard to the suffciency of the opposing papers. See Alvarez v. Prospect Hospital, supra; Miceli v. Purex , 84 A.D.2d 562; 443 N. Y.S. 2d 269 (2d Dept. 1981). Once the this initial burden has been met by movant , the purden shifts to the par opposing the motion to submit evidentiar proof in admissible form , sufficient to create material issues of fact requiring a trial. In light of the foregoing, it is noted that defendant relies on the following provisions of the CBA , which state in relevant part: 6... Original Date of Employment' means (1) for employees who were employed by the NHCC on or before September 29 2000 the date on which an individual commenced working for the NHCC or the County... and thereafter , without a break in service of more than one year , became employed in a regular County- funded position whether or not such position was in the negotiating unit , or (2) for employees who commenced employment with NHCC after September 29 , 2000 , their first date of employment with NHCC... 15... Years of actual completed service ' means (1) for employees employed by NHCC on or before September 29 2000 , all public service from the original date of employment with NHCC... to the date of termination of such public services , or (2) for employees who commenced [* 5] employment with NHCC on or about September 20 , 2000 , their first date of employment with NHCC provided , however , that service interrpted for a period of one year or less shall not be deemed to be a termination; however such interruption shall not be credited as actual service to NHCC , unless otherwise required by law... See Plaintiffs Memorandum of Law Exhibit C. However, the CBA , also states in relevant par: the labor and non-competiive class , who have been laid off, shall be re- hired in accordiance with the plan set forth in Section 81 of the Civil Service Law, notwithstading that such section does not apply to them as matter of law, and fuher provided that the re- hiring rights under 14- 2 All persons in this section shall expire eighteen (18) months after the lay-off. See id. Civil Service Law ~ 81 provides in relevant par: 1. The head of any deparment , office or institution in which an employee is suspended... with the provisions of sections eighty and eighty-a ofthis title shall , upon such suspension... or demotion, furnish the state civil service department... a statement showing his name , title or position , date of appointment , and the date of and reason for suspension.... It shall be the duty of such civil service deparment or commission to place the name of such employee upon a preferred list... and to certify such list , as hereinafter provided , for fillng vacancies in the same jurisdictional class; first , in the same or similar position; second , in any position in a lower grade in line of promotion; and third , in any comparable position. Such preferred list shall be certified for fillng a vacancy in any such position before certification is made from any other list , including a promotion eligible list , notwithstanding the fact that none of the persons on such preferred list was suspended from or demoted in the deparment or suspension and demotion unit in which such vacancy exists. No other name shall be certified from any other list for any such position until such preferred list is exhausted. The eligibilty for reinstatement . of a person whose name appears on any such preferred list shall not continue for a period longer than four years from the date of separation.... (emphasis added) 6. A person reinstated from a preferred list to his former position or a similar position in the same grade shall receive at least the same salar such person was receiving at the time of suspension or demotion... [* 6] The purpose of the statute relating to reinstatement of civil service employees from a preferred list was to assure that an employee separated from civil service without fault, whether by abolition of position or because of disability, upon reinstatement to same or similar position from preferred list , would receive at least his former pay. See Civil Service Law ~ 31- Therefore , it is not irrational for an arbitrator to interpret salar as inclusive of health benefits and vacation accruals for puroses of reinstatement under the cirucmstances regarding Parikh and Gilmarin. As to defendant's contention that the paries have regarded similarly situated employees as " new" employees pursuant to a long standing past practice , it is well settled that past practice may be considered to discern the intent of the paries to a collective bargaining agreement where that agreement is ambiguous. (emphasis added) See Corsaro v. County of Nassau 210 A.D.2d 286 620 N. Y.S. 2d 75 (2d Dept 1994). However , in the instant matter, there is no claim of ambiguity by either par. It is noted that ifthe drafters ofthe CBA intended that employees, who are seperated from service and are then reinstated based on their placement on a preferred list , be treated as " new" employees upon reinstatement to service with defendant, they could have clearly provded for that within the CBA. Even if such language was ambiguous , defendant has the burden of proof to establish the relevant past practice by a preponderance of the evidence. D.2d 542 , See Matter of Benson v. Cuevas, 288 731 N. Y.S. 2d 816 (3d Dept. 2001). Defendant attempts to meet this burden solely by way of the Affidavit of Maureen Roarty, its Vice President for Human Resources. This is woefully insufficient and therefore unavailng to meet defendant' prima facie burden. [* 7] Additionally, the fudamental , neutral precept of contract interpretation is that agreements are construed in accord with the paries ' intent. The best evidence of what paries to a written agreement intend is what they say in their writing. Thus , a written agreement that is complete , clear and unambiguous on its face must be enforced according to the plain meaning of its ters. See Civil Service Employees Association, Inc. 786 N. Plainedge Union Free 12 A.D. 3d 395 S.2d 59 (2d Dept. 2004). v. As to whether Arbitrtrator Alonge exceeded his authority in the rendering of his decision he was guided by a prior arbitration decision In the Matter of Arbitration between County of Nassu and Civil Service Employees Association Local 830 Docket Nos. 48- , 116- 93 and 127- , submitted by plaintiff, in making his determination. He also applied the law as set forth in the Civil Service statutes. It is well settled law that a court may not vacate an arbitration award except in those limited situations where the award has been procured by fraud , corrption or misconduct , or is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator s power. Furher , the Cour of Appeals has even held that an arbitrator s award should not be vacated for errors oflaw and fact committed by the arbitrator. See Matter of Peterec- Tolino v. Commercial Electrical Contractors, Inc. 59 A.D. 3d 752 872 Y.S.2d 599 (3d Dept. 2009). Here , both Parikh and Gilmartin were full-time employees who had eared certain benefits under the CBA. They were not seperated by their own actions , but by a layoff governed ... [* 8] by Civil Service Law ~ 80. In furher support oftheir entitlement to fullrestoration of benefits Civil Service Law ~ 80-a , paragraph (2) provides in relevant par: A period of employment on a temporar or provisional basis immediately preceded and followed by permanent service in the classified service , shall not constitute an interruption of continuous service for the puroses of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction , or any period during which an employee is suspended from his position pursuant to this section , constitute an interrption of continuous service for the puroses of this section.... Based on the foregoing, it is also rational for Arbitrator Alonge to conclude that the essential purposes of the relevant Civil Service Law provisions are to ensure that the " layoff and rehiring of a laid off employee are as least disruptive as possible. In addition , according to the foregoing statutory provision , the fact that Gilmarin had an intervening par-time tenure does not negate his prior service. Finally, the cases relied upon by defendant Civil Service Employees Association, Inc. The Nassau Health CIO Index No. 013652- The Nassau Health CIO Index No. 15722/06 , , and Civil Service Employees Association, Inc. are distinguishable. The first case involved the issue as to whether a par- time employee is entitled to the same vacation leave as full- time employees and whether par- time service should be treated as actual completed service under the CBA for that purose. Here , the issue is Parikh and Gilmarin s restoration to the leave entitlement they would have enjoyed had their full- time service not been interrupted. As to the second case , the seminal issue to be determined by that Court was the applicability of past practice. There , the record clearly set out what the practice had been [* 9] between the paries in determining the definition and meaning of the language of a collective bargaining agreement. As already stated herein , the only evidence in the record before this Court , is the self-serving affidavit of defendant. v. See Jacques Richal Enterprises Inc. , 300 AD. 2d 45 751 N. Y.S. 2d 726 (1st Dept. 2002). prima facie Based on the foregoing, defendant has failed to meet its entitlement to summar judgment , while plaintiffs have met their burden entitling them to the declaratory relief sought. Accordingly, defendant's motion (Seq. No. 01), pursuant to CPLR ~ 3212 , for an order of this Cour granting sumar judgrnent , dismissing plaintiffs Complaint is hereby DENIED. Plaintiffs cross-motion (Seq. No. 02), pursuant to CPLR ~ 3212 , for an order of this Court granting summar judgment in its favor is hereby GRANTED. This constitutes the Decision and Order of this Cour. - DENISE L. SHER, A. ENTt;REO Dated: Mineola, New York April 27 , 2012 MAY 0 1 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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