Lynch v. New York City Employees' Retirement System

103 A.D.2d 695, 478 N.Y.S.2d 620, 1984 N.Y. App. Div. LEXIS 19306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1984
• Status: Published

Opinions

— Order, Supreme Court, New York County (William P. McCooe, J.), entered April 12,1983, which granted the petition of Gladys Lynch to invalidate and declare null and void a determination of the New York City Employees’ Retirement System (NYCERS) involuntarily retiring her on ordinary disability, and which directed the City of New York Human Resources Administration (HRA) to continue with the pending grievance proceeding in which Lynch challenged her dismissal, affirmed, without costs. 11 On July 18, 1980, petitioner was dismissed from her position as caseworker with HRA, effective the close of business that day. This was her second dismissal based on unsatisfactory behavior in the performance of her duties. Petitioner then invoked step III of the grievance procedure pursuant to the collective bargaining agreement between her union and HRA. After conference and review, the review officer denied the grievance. 1Í On April 8, 1981, at a time when petitioner had been discharged, the union filed on her behalf “a request for arbitration”. On April 21,1981, at an arbitration hearing, the parties entered into the following stipulation: “It is hereby stipulated and agreed by and between the attorneys for the above captioned parties that the arbitration scheduled before Mr. Thomas Crowly on this date is adjourned for the purpose of enabling Mrs. Gladys Lynch to submit herself to a psychiatrist of the City’s choosing for the purpose of obtaining an evaluation of her fitness to work. Pending submission of the psychiatrist’s evaluation, this arbitration shall be adjourned with the arbitrator retaining jurisdiction over the case. H “It is understood that this adjournment is without prejudice to the rights and remedies available to either party and that the psychiatrist’s report will be admissible in evidence should this arbitration proceed. It is further stipulated that Mrs. Lynch shall have the right to consult with a psychiatrist of her own 1 choosing and to enter his/her report into evidence at any further proceedings held pursuant to this arbitration.” H Pursuant to this stipulation, petitioner underwent a psychiatric examination by a city-designated psychiatrist. The psychiatrist recommended against her reinstatement. Petitioner’s own psychiatrist found to the contrary. H Lynch was subsequently notified, by undated letter from the commissioner, that she was being reinstated to inactive pay status to permit her to apply for disability retirement, as follows: f “As you know, following a Step II grievance appeal regarding charges preferred against you, the penalty of dismissal was affirmed. Accordingly, you were dismissed from your position of Caseworker with this Department effective close of business July 18,1980. H “Pursuant to your appeal, the Arbitrator has directed that you shall be returned to an inactive pay status as an employee in order for you to apply for disability retirement. f “Accordingly, you are being reinstated effective July 1,1981. Our Employee Benefits Section will forward the required information regarding retirement.” HThe letter contained a material misstatement. It stated that the arbitrator had directed that she be returned to an inactive pay status as an employee in order for her to apply for disability retirement. There was no such direction by the arbitrator. Whether the statement in the letter was inadvertent or deliberate is immaterial. The point is that the reinstatement on a limited basis was not at the direction of the arbitrator, but the voluntary action of HRA. 1 Petitioner declined to make an application for disability retirement. However, HRA made such application. It was pursuant to this application that petitioner was retired on ordinary disability. This was against petitioner’s will and without any basis in law. No legal foundation is shown for the authority exercised by HRA to reinstate petitioner for the sole purpose of providing an opportunity for a disability retirement proceeding. In the face of the stipulation, it is apparent that this action was taken against Lynch’s will. Accordingly, NYCERS was without jurisdiction or authority to proceed with the retirement application submitted by HRA. H The dissent suggests that the HRA retained the option to proceed in this manner in the stipulation provision “that this adjournment is without prejudice to the rights and remedies available to either party”. How this provision afforded HRA the right to proceed on the basis of a nonexistent arbitrator’s decision does not appear. Plainly the HRA action aborted Lynch’s chosen desire to proceed with arbitration. H As the dissent notes, CPLR 7803 provides: “The only questions that may be raised in a proceeding under this article are * * * 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion”. The unfounded limited involuntary reinstatement of Lynch by HRA violated these provisions. Hence, there was no jurisdiction for the retirement proceeding. H It is plain that at all times Lynch wished to pursue her arbitration proceeding seeking reinstatement. The fact that she was afforded an opportunity to submit her psychiatrist’s report to the Medical Board of the NYCERS, and apparently did so, did not constitute a waiver of her rights to proceed to arbitrate. The opportunity to contest the retirement proceeding is not a substitute for her right to proceed with arbitration. H It may well be that she will be unsuccessful in attaining reinstatement by way of arbitration, or that even if she is successful, a further proceeding to retire her for disability may be instituted. The stipulation preserved her rights, whatever the result. The stipulation did not invest respondents with the right unilaterally to proceed to compel her disability retirement. Nor does the law. Concur — Sullivan, J. P., Bloom and Fein, JJ.