| Matter of Westchester County Correction Officers Benevolent Assn.,Inc. v County of Westchester |
| 2010 NY Slip Op 02572 [71 AD3d 1040] |
| March 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Westchester County Correction OfficersBenevolent Association, Inc., et al., Respondents, v County of Westchester et al.,Appellants. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Warren J. Roth andRyan K. Allen of counsel), for respondents.
In a proceeding, inter alia, pursuant to CPLR 7803 (1), (2) and (3), to, among other things,compel the County of Westchester and the Westchester County Department of Correction tocomply with the terms of a collective bargaining agreement, the County of Westchester and theWestchester County Department of Correction appeal, (1), as limited by their brief, from somuch of an order of the Supreme Court, Westchester County (Cohen, J.), entered August 11,2008, as denied those branches of their motion which were to dismiss the petition for failure toexhaust contractual and administrative remedies and on the ground that the proceeding wasimproperly commenced pursuant to CPLR article 78, and (2) from a judgment of the same courtentered February 9, 2009, which, inter alia, granted those branches of the petition which were todirect the County of Westchester and the Westchester County Department of Correction toreinstate the individual petitioners' accrued time which had been deducted while a finaldetermination on their respective statuses was pending and enjoined the County of Westchesterand the Westchester County Department of Correction from making such deductions inconnection with similarly-situated correction officers during the time the determinations on theirrespective statuses are pending.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the petitioners.
The appeal from the intermediate order must be dismissed since an order made in a CPLRarticle 78 proceeding is not appealable as of right (see CPLR 5701 [b] [1]), and anypossibility of taking a direct appeal therefrom terminated with the entry of final judgment in theproceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]).
The petitioner correction officers (hereinafter officers), employed by the County ofWestchester and the Westchester County Department of Corrections (hereinafter together theCounty), each sustained injuries in the line of duty and were out of work for a period of time dueto these injuries. The officers were awarded benefits during that time pursuant to GeneralMunicipal Law § 207-c. After [*2]an officer is awardedbenefits pursuant to that section, a municipality may have that officer periodically examined todetermine whether the officer is able to return to work. The officers were all evaluated by theCounty's independent medical examiner (hereinafter IME) and were determined to be able toreturn to work. Each officer contested the determination in accordance with the collectivebargaining agreement (hereinafter CBA), which resulted from negotiations between the officers'union, the Westchester County Correction Officers Benevolent Association (hereinafter COBA),and the County. Under the CBA, the officers had the option of having the IME's adversedeterminations reviewed by either a medical consultant or a hearing officer. The officers allchose to have the determinations reviewed by the medical consultant. The medical consultantfound that each of the officers was able to return to work, and had been able to return to work fora period of time prior to the date of the medical consultant's determination.
The petitioners challenge, inter alia, the placement by the County of the officers on so-called"job pending" status until a final determination was rendered either by the hearing officer ormedical consultant. Individuals placed on "job pending" status were to be paid only if they hadaccrued time, such as vacation or sick time, which was deducted by the County. In other words,individuals on "job pending" status were required to use their accrued vacation or sick time ifthey wanted to be paid during the pendency of their challenge to the IME's determination.According to the petitioners, if an individual had no accrued time, or exhausted that time, theindividual would not be paid. Thus, according to the petitioners, rather than continuing toprovide such officers with benefits pursuant to General Municipal Law § 207-c andretaining such officers on "line of duty" status until a final determination was reached, theCounty created a new status in violation of the CBA and in violation of lawful procedure.
On or about June 13, 2007, COBA filed grievances on behalf of the officers and "allsimilarly affected COBA members." However, instead of arbitrating the grievances, the officersand COBA commenced this proceeding pursuant to CPLR article 78 seeking, inter alia, tocompel the County to restore the officers' accrued time that had been deducted, and to enjoin theCounty from such deductions in the future.
"[A] written agreement that is complete, clear and unambiguous on its face must be enforcedaccording to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d562, 569 [2002]). Here, the unmistakable language of the collective bargaining agreementbetween the petitioners and the County provided that, in the event that a correction officer who isinjured in the line of duty disputes a finding by the medical examiner that he or she is able toreturn to work, the correction officer may then submit the dispute to a hearing officer orindependent medical consultant. The language from the CBA governing the parties' rights andresponsibilities while the dispute is pending and immediately thereafter reads, in relevant part, asfollows: "The Department agrees to retain all correction officers subject to such medical disputes. . . on full pay, line of duty status until such date as a decision is rendered by thehearing officer, or medical consultant. The parties agree, however, that if the Departmentprevails on the issue, the correction officer shall return to work. Should an employee fail to abideby the hearing officer or medical consulting service's determination . . . by failingto appear for . . . duty, the employee will be removed from the payroll."
This provision clearly and unambiguously provides for the retention of the officers under thecircumstances at issue here "on full pay, line of duty status" while their challenges were pending.It does not contemplate the reclassification of officers who challenge the findings of medicalexaminers while those challenges are pending, nor does it authorize the County to deductaccrued time the officers may have, if any, during that time, and, once such accrued time isexhausted, to not pay the officers at all.
Moreover, the Court of Appeals recently determined that "[a] municipality is not permittedto recoup section 207-c payments where, as here, the officer avails himself [or herself] ofdue process protections by challenging the medical examiner's determination because such achallenge cannot be equated with a refusal to return to duty" (Matter of Park v Kapica, 8NY3d 302, 312 [2007]). While the municipality in Park sought to recoup paymentspursuant to General Municipal Law § 207-c, and here the County purports to undertake itsaction pursuant to, inter alia, the CBA, as discussed above, the language of the CBA clearlyprovides that, during the pendency of the officers' challenges to the findings of the IMEs, theyare to be retained "on full pay, line of duty status."[*3]
The County's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted those branches of the petition which wereto direct the County to reinstate the officers' accrued time and enjoined the County from makingsuch deductions in connection with similarly-situated correction officers during the time thedeterminations on their status are pending. Rivera, J.P., Angiolillo, Dickerson and Roman, JJ.,concur.