Opinion
402590/04.
Decided February 22, 2005.
Michael A. Cardozo Corporation Counsel of the City of New York Rippi Gill, Esq, New York, NY, Attorneys for Petitioner.
Alan M. Klinger, Esq. Strook Strook Lavan LLP New York, NY, Carol L. Gerstl, Esq. New York, NY, Attorneys for Respondent.
This decision was edited for publication.
This case deals with staffing of full-time Collaborative Team Teaching (CTT) classrooms. In a CTT classroom, both a general education teacher and a special education teacher work together, incorporating a range of modalities. The Board of Education of the City of York (BOE) created CTT as part of its "Special Education Services as Part of a Unified Delivery System," also known as the "New Continuum." The idea is that certain students with disabilities are deemed able to learn in general education classes. The New Continuum and the Individualized Education Program Manual (see petitioner's exhibits 2 3) govern the provisions of CTT.
Individualized Education Plans (IEPs) are documents unique to each student that detail the specific services a child is entitled to receive because of a disability. An IEP team, consisting of both a special education teacher and a general education teacher, a BOE representative, and the students parents, determine whether a student's IEP should contain CTT. CTT class rooms are available either full time or part time, depending on the child's needs.
The issue in the case arose during the 2000-2001 school year when the BOE ceased assigning two teachers to CTT classes when one of the regularly assigned teachers had a preparation period and was out of the classroom. Preparation periods are provided by the Collective Bargaining Agreement (CBA). The UFT filed several grievances pursuant to Article 20 of the CBA, which provides in relevant part:
All existing determinations, authorizations, by-laws, regulations, rules, rulings, resolutions, certifications, orders, directives, and other actions, made, issued or entered into by the Board of Education governing or affecting salary and working conditions of the employees in the bargaining unit shall continue in force during the term of this Agreement, except insofar as change is commanded by law.
The grievances were denied and subsequently consolidated into one grievance for the purposes of arbitration. Both parties agreed to arbitrate the dispute. The Arbitrator, Leonard R. Kershaw, conducted hearings on the grievances, and defined the issue as whether the BOE violated Article Twenty, unnumbered paragraph 3, in connection with coverage of full-time [CTT] classes during preparation periods?
The arbitrator issued an award in favor of the UFT, holding that the arrangement of providing instruction during preparation periods by a single teacher was "contrary to the CTT provisions of the New Continuum applicable to full-time CTT which the [BOE] was required to continue in force during the term of the collective agreement and, therefore, violated Article Twenty, unnumbered paragraph three, of the [CBA]."
The Award was delivered to the parties on May 19, 2004, and on August 13, 2004, the petitioner commenced this action. Rather than serving the UFT, however, petitioner mistakenly served the New York State United Teachers (NYSUT), an organization that has its New York City office in the same building as the UFT. On December 15, 2004, petitioner moved for an order extending its time to effect service of process pursuant to CPLR § 306-b, arguing that the petition was timely filed and served within the 15 days contemplated by CPLR § 306-b. It also argued the NYSUT had represented UFT in other matters and that NYSUT did not indicate to the process server that it did not represent UFT in this matter, that UFT received actual notice, that UFT's attorneys requested an adjournment of the return date and never informed petitioner that service was improper, and that respondent will not be prejudiced by late service.
Respondent countered that it is irrelevant that NYSUT had represented it in the past on other matters inasmuch as service of process must be made on a party, not on counsel. Only service of motions once an action has commenced may be served on counsel of record. CPLR § 2103(b). Furthermore, NYSUT has never been authorized to accept service of process for the UFT, nor was it obligated to inform the process server of that fact. Last, opposing counsel is not obligated to inform petitioner of their bad service, and counsel's appearance in this action on behalf of UFT did not confer jurisdiction where an objection to the Court's jurisdiction "has been asserted by motion or in the answer." CPLR § 320(b).
Extension of Time for Service of Process Pursuant to CPLR § 306-b
An application to vacate an arbitration award may be made within 90 days after its delivery. CPLR § 7511(a). Since this statute of limitations is less than four months, "service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." CPLR § 306-b.
Good cause and interest of justice "contemplate separate grounds and are defined by separate criteria for an extension of time to serve process." Alexander, Supplementary Practice Commentaries, McKinney's Consolidated Laws of New York, Book 7B, Pocket Part 2005, C306-b:3, p. 95, commenting on Leader v. Maroney, Ponzini Spencer, 97 NY2d 95 (2001). In Leader, the Court of Appeals held that good cause requires a threshold showing that plaintiff made a reasonably diligent effort to make timely service, 97 NY2d at 104, while "[t]he interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interest presented by the parties. Id. at 105. "[U]nder the interest of justice standard, a showing of reasonable diligence in attempting to effect service is not a 'gatekeeper.' It is simply one of many relevant factors to be considered by the court." Id. at 104. The Court went on to note that the legislative history behind the amendment "characterized the interest of justice standard as 'more flexible' than the good cause standard, specifically noting that '[s]ince the term 'good cause' does not include conduct usually characterized as 'law office failure,' proposed CPLR 306-b provides for an additional and broader standard, i.e., the 'interest of justice,' to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant' (Bill Jacket, L 1997, ch 476, at 14." "[T]he court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant." Id. at 105-06. In short, "[t]he statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative — the calculus of the court's decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served." Id. at 106 (emphasis added).
In Slate v. Schiavone Const. Co, 10 AD3d 1, lv. granted, 11 AD3d 1053 (1st Dept. 2004), the Court held that the expiration of the statute of limitations does not, in and if itself, constitute prejudice to defendant.
In the present case, the award was delivered to the parties on May 19, 2004, thus the 90 day statute of limitations for applying to vacate the award expired on August 17, 2004. Although petitioner complied with CPLR 7511(a) by purchasing an index number on August 13, 2004, it failed to comply with CPLR § 306-b by not serving respondent within 15 days of the expiration of the statute of limitations, that is by September 1, 2004.
Applying the various standards and factors discussed above, this Court declines to exercise its discretion and grant petitioner's request for an extension to effect service inasmuch as this Court is not "faced with the dismissal of a viable claim." Id. at 106. Rather, as further discussed below, petitioner's claims are not viable and lack merit. Accordingly, petitioner's motion for an order extending the time to effect service is denied. There is no purpose in granting the extension and then dismissing the petition. To be sure, as our esteemed Professor Siegel has pointed out in a different context, the better part of valor is for this Court to "cut to the chase" and give this petition its proper burial. Application to Vacate Arbitrator's Award and Cross-Motion to Dismiss Petition
Siegel's Practice Commentaries, McKinney's Consolidated Laws of New York, Book 7B (Interim Pocket Part 1997-1998) CPLR C3212:12 at 60-61(pre- Brill v. City of New York, 2 NY3d 648 (2004), commentary on the good cause requirement for an extension to file a summary judgment motion past 120 days).
Given the strong public policy of this State, which "prefers arbitration as a device for resolution of labor controversies and frowns upon judicial attempts to resolve such disputes," Board of Education, Bellmore-Merrick Central High School District v. Bellmore-Merrick United Secondary Teachers, Inc., 39 NY2d 167, 171 (1976), the Court of Appeals has held that "an arbitration award may be vacated [only] on three narrow grounds: it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." United Federation of Teachers, Local 2 v. Board of Education of the City of New York (Linda Feil), 1 NY3d 72, 79 (2003), citing Matter of Board of Educ. of Arlington Cent. School Dist. v. Arlington Teachers Assn., 78 NY2d 33, 37 (1991). Indeed, as the Court reaffirmed in Feil:
"[I]t is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute" ( Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v. Barni, 51 NY2d 894, 895 [1980]). This is true" even where 'the apparent, or even the plain, meaning of the words' of the contract has been disregarded" (Maross Constr. v. Central NY Regional Transp. Auth., 66 NY2d 341, 346 [1985] [citation omitted]). In Matter of New York State Correctional Officers Police Benevolent Assn. v. State of New York ( 94 NY2d 321 [1999]), we refused to disturb an award, cognizant of the fact that "[a] court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice" (id. at 326 [citations omitted and emphasis added]).
Id. at 83-84.
Petitioner has failed to show that the arbitrator's award violated a strong public policy. As respondent argues, petitioner's assertion that the award violates its "obligation to provide, and maintain, educational programs and services . . . to students with disabilities," has no merit inasmuch as none of the statutes or regulations cited by it set the number of teachers that are to be in a CTT class during preparation periods. Sprinzen v. Nomberg, 46 NY2d 623, 631 (1979) (courts may intervene in the arbitration process only when "public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided. . . . [T]he court must be able to examine an arbitration agreement or award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement."). Moreover, the award in no way interferes with the procedural mechanisms for developing an IEP, reevaluating it, or contesting it.
Petitioner cites The Individual With Disabilities Act (IDEA), 20 U.S.C §§ 1400, et seq. and New York Education Law §§ 4401-a 4404; 8 N.Y.C.R.R. §§ 200.2(b), 22.5(i) (k). It also refers in general terms to New York Civil Service Law §§ 200 et seq. (the Taylor Law).
Furthermore, the award was not irrational and clearly did not exceed the arbitrator's authority. Indeed, having failed to raise the issue of arbitrability before the arbitration, petitioner waived this claim. United Federation of Teachers, Local 2 v. Board of Education of the City of New York (Linda Feil), supra, 1 NY3d at 79; Commerce and Industry Insurance Company v. Nester, 90 NY2d 255, 261 (1977).
Conclusion
For the reasons stated above, it is
ORDERED that petitioner's motion for an order extending the time to effect service is DENIED; and it is further
ORDERED that the petition for an order vacating the arbitration award dated May 15, 2004, is DENIED; and it is further
ORDERED that respondent's cross-motion for a judgment dismissing the petition is GRANTED; and it is further
ORDERED that respondent's cross-motion for a Judgment confirming the May 15, 2004 Arbitration Award (incorporated by refernce) is GRANTED.
This constitutes the Decision, Judgment and Order of the Court.