DeRosa v. DysterDeRosa v. Dyster
We reject the City‘s contention that petitioner failed to exhaust her administrative remedies before commencing this proceeding. Although it is well established that a petitioner cannot maintain a
With respect to the merits of petitioner‘s claims, we conclude that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. Although the MOU permitted retirees to participate in the health care plan upon the same terms and conditions as employees, it did not contain a similar opt-out provisiоn for retirees. We reject petitioner‘s contention that the opt-out provision was a term or condition of the health care plan. The opt-out paragraph specifically states that qualified employees, not retirees, could elect to opt out of the health care plan. Pursuant to the clear and unambiguous terms of the MOU, the opt-out provision was not a term or condition of the health care plаn; it was an alternative to it. We therefore conclude that the court erred in determining that the City must provide petitioner with opt-out payments, as well as retroactive payments, in lieu of providing her with health insurance coverage.
We conclude, however, that the court properly determined that, as a retiree, petitioner was entitled to enroll in the health care plan at no cost to her.
All concur except Cаrni, J., who dissents and votes to reverse the judgment insofar as appealed from in accordance with the following memorandum.
Carni, J. (dissenting). I respectfully disagree with the conclusions of my colleagues that there were no administrative remedies available to petitioner prior to commencing this
On Septеmber 30, 2009, petitioner retired from her employment position with the City. Prior to retiring, petitioner received opt-out payments in lieu of health insurance coverage pursuant to the terms of the memorandum of understanding (MOU) datеd October 21, 2005 between the City and, inter alia, the union. After she retired, the City denied petitioner‘s request for either post-employment health insurance coverage or opt-out payments in lieu of such coverage.
It is well established that a petitioner cannot maintain a
It is well settled that there is no prohibition against using a CBA‘s grievance procedure to resolve retiree benefit disputes
The majority further concludes that petitioner was not aggrieved until after she retired and, because she was no longer an “employee” at that time, she could not have pursued a grievance before commencing this proceeding. However, petitioner has appended a document to her responding brief that unequivocally establishes that, aрproximately one month before she retired, she requested that the union pursue a grievance on her behalf so that she could receive opt-out payments in retirement. Thus, it is clear that petitioner knew before she retired that the City would not pay her opt-out payments in retirement, and we therefore conclude that she was aggrieved during the time of her employment. I recognize the general rule relied upon by the majority that wе may not consider matters dehors the record on appeal (see generally Matter of Hayes, 263 NY 219, 221 [1934], rearg denied 264 NY 459 [1934]). Inasmuch as petitioner submitted that document, however, she clearly does not deny its existence or claim that the text is inaccurаte or incomplete (see Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 299 [1974]). “The Court of Appeals has . . . recognized a narrow exception [to the general rule], which allows the consideration, on appeal, of reliable documents, the existenсe and accuracy of which are not disputed, even for the purposes of modifying or reversing the [judgment] under review” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Crawford, 35 NY2d at 299). Thus, in my view, we should not delay the resolution of this litigation by ignoring incontrovertible facts advanced by petitioner. Petitioner‘s claim accrued while she was still an “employee,” and thus her status as a retiree does not excuse her failure to utilize the CBA grievance procedure (see Dorme, 12 Misc 3d at 822).
Even if we were to ignore the undisputed facts establishing that petitioner was aggrieved during her employment, I respectfully disagree with my colleagues that, because petitioner is retired, she was not required to utilize the grievance procedure set forth in the CBA to rеsolve her claim for benefits under that agreement. “[W]here a [CBA] requires that a particular dispute be resolved pursuant to a grievance procedure, an employee‘s failure to grieve will constitute a failurе to exhaust, thereby precluding relief under