Civil Serv. Emps. Ass'n v. Nassau Healthcare Corp.

• Decision Date: 18 November 2020
• Docket Number: 2018–04076,Index No. 610842/17
• Citation: Civil Serv. Emps. Ass'n v. Nassau Healthcare Corp., 188 A.D.3d 1043, 136 N.Y.S.3d 375 (N.Y. App. Div. 2020)
• Parties: In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, A.F.S.C.M.E. LOCAL 1000, A.F.L.-C.I.O. BY its LOCAL 830, etc., Respondent-Appellant, v. NASSAU HEALTHCARE CORPORATION, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1043

136 N.Y.S.3d 375

In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, A.F.S.C.M.E. LOCAL 1000, A.F.L.-C.I.O. BY its LOCAL 830, etc., Respondent-Appellant,

v.NASSAU HEALTHCARE CORPORATION, Appellant-Respondent.

2018–04076

Index No. 610842/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 25, 2020

November 18, 2020

Littler Mendelson P.C., Melville, N.Y. (Paul R. Piccigallo, Amy Ventry–Kagan, and Denise Barton Ward of counsel), for appellant-respondent.

Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for respondents-appellants.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to modify an arbitration award dated October 10, 2017, Nassau Healthcare Corporation appeals, and the petitioner cross-appeals, from an order of the Supreme Court, Nassau County(Anthony L. Parga, J.), entered February 27, 2018.The order, insofar as appealed from, in effect, granted that branch of the petition which was to confirm so much of the arbitration award as reinstated Annieamma Augustine, Sijimole Reji, and Martine Morland to their former positions, and denied that branch of the motion of Nassau Healthcare Corporation which was to vacate that portion of the award.The order, insofar as cross-appealed from, denied that branch of the petition which was to vacate so much of the arbitration award as imposed the penalty of reinstatement without back pay.

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the petition which was to confirm so much of the arbitration award as reinstated Annieamma Augustine, Sijimole Reji, and Martine Morland to their former positions is denied, and that branch of the motion of Nassau Healthcare Corporation which was to vacate that portion of the award is granted; and it is further,

ORDERED that the cross appeal is dismissed as academic in light of our determination on the appeal; and it is further,

ORDERED that one bill of costs is awarded to Nassau Healthcare Corporation payable by the petitioner.

Annieamma Augustine and Sijimole Reji, registered nurses, and Martine Morland, a nurse aide (hereinafter collectively the employees), were employed by Nassau Healthcare Corporation(hereinafter NHC) in the Nursing Ventilator Unit of the A. Holly Patterson Extended Care Facility (hereinafter AHP), a skilled nursing care facility.On December 29, 2015, the employees' employment was terminated by NHC based upon an incident that occurred on December 20, 2015, during which the employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.Pursuant to the parties' collective bargaining agreement, the employees' representative, Civil Service Employees Association, A.F.S.C.M.E. Local 1000, A.F.L.-C.I.O., by its Local 830 (hereinafter the Union), filed a grievance challenging the terminations and the matter ultimately proceeded to arbitration.The arbitration hearing took place over several dates between May 2016 and June 2017.The employees chose not to testify at the hearing.In September 2017, the employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide, in connection with the events of December 20, 2015.

Following the hearing, the arbitrator issued an award dated October 10, 2017, finding that NHC did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered.However, based on the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine itself in the resident's room, which did not necessarily signal an emergency, was audible to them at the nursing station.The arbitrator reinstated the employees to their former positions, but directed that they be reinstated without back pay.

On or about October 13, 2017, the Union, on behalf of the employees, commenced this proceeding pursuant to CPLR article 75 to confirm so much of the arbitrator's award as reinstated the employees to their former positions, and to vacate so much of the award as imposed the penalty of reinstatement without back pay.NHC moved, inter alia, to vacate so much of the award as reinstated the employees to their former positions.NHC argued, among other things, that following the indictments against the employees, in November 2017, the Office of Medicaid Inspector General(hereinafter OMIG) issued "exclusion letters" to the employees precluding them from being involved in any activity related to the furnishing of medical care, services, or supplies to Medicaid recipients.NHC argued that as a result of the...