Raphael v. Kaplan
This text of 2024 NY Slip Op 31047(U) (Raphael v. Kaplan) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Raphael v Kaplan 2024 NY Slip Op 31047(U) March 28, 2024 Supreme Court, New York County Docket Number: Index No. 158741/2023 Judge: Nicholas W. Moyne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158741/2023 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 03/28/2024
SUPREME COURT OF THE STATE OF. NEW YORK NEW YORK COUNTY PRESENT: HON. NICHOLAS W. MOYNE PART 41M Justice ---------------------.X INDEX NO. 158741 /2023 SAMUEL RAPHAEL MOTION DATE 09/03/2023 Petitioner, MOTION SEQ. NO. . 001 - V-
DEBORAH KAPLAN, DECISION + ORDER ON .MOTION Respondent. -------------~-------.X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, · · 10, 11, 12, 13, 14, 15, 16, 17,20,21,22,23,24,25,26,27,28,29, 30, 31,32,33,34,35, 36, 37,38, 39, 40,41,42,43,44,45,46,47,48 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
Upon the foregoing documents, it is
In this Article 78 proceeding, the petitioner challenges the termination of his
employment The respondent, Hon. Deborah Kaplan, the Deputy Chief Administrative Judge for
New York City Courts, opposes the motion.
Background
The petitioner, Samuel Raphael, is a former Court Revenue Assistant who worked in
Queens County Supreme Court. Petitioner's employment was covered by a collective bargaining
agreement ("CBA") (Exh. A, NYSCEF Doc. No. 3). On November 18, 2021, the petitioner was
placed on an involuntary leave of absence pursuant to Section 9.3(i)(2) of the Collective
Bargaining Agreement (see Exh. D, NYSCEF Doc. No. 6). By letter dated May 8, 2023, the
petitioner was informed that a second evaluation by the State's doctor determined that petitioner
is not fit to perform the duties of a Court Revenue Assistant, and that, since petitioner had been
out on an involuntary leave for over a year, he was terminated (see Exh. J, NYSCEF Doc. No.
158741/2023 RAPHAEL, SAMUEL vs. KAPLAN, DEBORAH Page 1 of4 Motion No. 001
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12). On or about May 12, 2022, November 7, 2022, May 15, 2023 and June 26, 2023,
petitioner's counsel sent respondent letters requesting an appeal. No appeal was granted, and the
instant proceeding was commenced.
The petitioner failed to timely exhaust his administrative remedies
"An aggrieved union member whose employment is subject to a collective bargaining
agreement between the union and the employer must first avail himself of the grievance
procedure set forth in the agreement before he can commence an action seeking relief under
CPLR article 78" (Katz v Carranza, 187 AD3d 470 (1st Dept 2020]). It is not arbitrary or
capricious to reject a belated request for an appeal (see Siegel v Bd. of Educ. of City School Dist. .
of City ofNew York, 58 AD3d 474, 474-75 [1st Dept 2009] ["The court properly held that
respondents did not act arbitrarily and capriciously when rejecting petitioner's belated request for
a hearing"]). It is undisputed that the petitioner was a union member subject to a collective
bargaining agreement. Pursuant to CBA § 9.3(i)(6)(a), if a person elects to appeal being placed
on leave pursuant to CBA §§ 9.3(i)(2) or 9.3(i)(3) or terminated pursuant to CBA § 9.3(i)(4),
they must file a written request for a hearing with the Deputy Chief Administrative Judge within
ten workdays from service of the notice of the determination to be reviewed. Petitioner received
the letter which placed him on involuntary leave, and informed him of the right to appeal such
involuntary, leave on November 18, 2021 (see Petition ,r 17, NYSCEF Doc. No.!). Therefore,
the plaintiffs first request for an appeal, on May 12, 2022, and all subsequent requests to appeal,
were untimely,
Petitioner's contention that it would be illogical to file for an appeal within ten workdays
of this initial notice because the psychological examination of the petitioner had not yet been
conducted is·unavailing. The CBA provides protections for the employee pending the hearing on
158741/2023 RAPHAEL, SAMUEL vs. KAPLAN, DEBORAH Page 2 of 4 Motion No. 001
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appeal. Specifically, CBA § 9.3(i)(6)(b) provides that, upon receipt of the request for an appeal,
"imposition of the leave or termination shall be held in abeyance until a final determination is
made by the Deputy Chief Administrative Judge (New York City Courts) as provided in Section
9.3(i)(6)(c)." CBA § 9.3(i)(6)(b) additionally provides that upon receipt of the request for app7al
the Deputy Chief Administrative Judge shall supply to the employee or his/her personal
physician or authorized representative, copies of all diagnoses, test results, observations and
other data supporting the determination. Therefore, had petitioner filed his request for an appeal
within ten workdays of November 18, 2021, his leave would have been held in abeyance pending
a hearing on the appeal. The hearing on appeal would have happened after the psychological and
physical examinations of the plaintiff(see 12/20/2023 Tr. at p. 9-10).
The petitioner's argument that he had the right to appeal his termination, and such request
to appeal his termination was timely served on the respondent is also unavailing. The,respondent
correctly indicates that the petitioner's termination was pursuant to CBA § 9.3(i)(3), which is not
a job action for which the CBA provides a right to appeal (see Kaplan Aff. ,i 38, NYSCEF Doc.
No. 26). Petitioner contends that the termination provision of CBA § 9 .3(i)(3), which states "An
employee placed on leave pursuant to this subsection who is not reinstated within one year after
the date of commencement of such leave, may be terminated by the Deputy Chief Administrative
Judge (New York City Courts) and his/her position may be filled by a permanent appointment," ·
only applies to employees who are temporarily disabled and placed on leave pursuant to the
leave provision of CBA § 9 .1 (i)(3 ), not to employees placed on leave pursuant to CBA §
9.3(i)(2). However, CBA § 9.3(i)(3) states an "employee placed on leave pursuant to this
subsection" (emphasis added). Contrary to petitioner's contention, a simple examination of the
structure of the CBA shows that the subsection is all ofCBA § 9.3(i), not just§ 9.3(i)(3)-which [* 3] 3 of 4 15874112023 RAPHAEL, SAMUEL vs. KAPLAN, DEBORAH Page 3of 4 INDEX NO. 158741/2023 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 03/28/2024
would be a sub-subsection. The CBA is broken down into Articles (i.e., Article 9), Sections (i.e.,
Section 9.3), Subsections (i.e., 9.3[i]), and then further into sub-subsections (i.e., 9.3[i][2] or
9.3[i][3]), and then into sub-sub-subsections, etc. Therefore, the CBA allows the respondent to
terminate the petitioner, pursuant to CBA § 9.3(i)(3) as an employee placed on leave and not .
reinstated within one year. Termination pursuant to CBA § 9.3(i)(3) is not one of the actions
subject to appeal pursuant to CBA § 9.3(i)(6). Accordingly, the respondent's placement of
plaintiff on involuntary leave, subsequent termination, and denials of appeal were not arbitrary
and capricious. Therefore, the petition must be denied.
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2024 NY Slip Op 31047(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/raphael-v-kaplan-nysupctnewyork-2024.