Nassau Educational Chapter of Civil Service Employees Ass'n, Inc. v. Great Neck Union Free School Dist.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE; GABRIELLI
• Citation: Nassau Educational Chapter of Civil Service Employees Ass'n, Inc. v. Great Neck Union Free School Dist., 454 N.Y.S.2d 67, 57 N.Y.2d 658, 439 N.E.2d 876 (N.Y. 1982)
• Decision Date: 02 July 1982
• Parties: , 439 N.E.2d 876, 6 Ed. Law Rep. 365 In the Matter of NASSAU EDUCATIONAL CHAPTER OF the CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., et al., Appellants, v. GREAT NECK UNION FREE SCHOOL DISTRICT, Respondent.

Page 67

454 N.Y.S.2d 67

57 N.Y.2d 658, 439 N.E.2d 876, 6 Ed.

Law Rep. 365

In the Matter of NASSAU EDUCATIONAL CHAPTER OF the CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., et al., Appellants, v. GREAT NECK UNION FREE SCHOOL DISTRICT, Respondent.

Court of Appeals of New York.

July 2, 1982.

Richard M. Gaba and Barry J. Peek, Mineola, for appellants.

Jerome H. Ehrlich, Garden City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 85 A.D.2d 733, 445 N.Y.S.2d 812, should be affirmed, with costs.

Although the Appellate Division's order recites that it is "on the law" rather than "on the law and the facts," CPLR 5612 (subd. ) permits us (contrary to prior practice see Rugg v. State of New York, 303 N.Y. 361, 102 N.E.2d 697) to look to "any order of the Appellate Division and to its opinion" to determine whether it resolved factual issues in reaching its conclusion (Second Preliminary Report, Advisory Committee on Practice and Procedure p. 362). The majority opinion below recites in relation to Special Term's holding that its "analysis of the facts leads us to the opposite conclusion." (85 A.D.2d, p. 734, 445 N.Y.S.2d 812.) Accordingly, the issue for our determination is which, between the view of the two courts below, the weight of the evidence supports.

Considering the record against the factors referred to in Matter of Westchester County Civ. Serv. Employees Assn. v. Cimino, 58 A.D.2d 869, 396 N.Y.S.2d 692, affd. 44 N.Y.2d 985, 408 N.Y.S.2d 501, 380 N.E.2d 327 and Matter of Conlin v. Aiello, 64 A.D.2d 921, 408 N.Y.S.2d 125, affd. 49 N.Y.2d 713, 425 N.Y.S.2d 803, 402 N.E.2d 142, we conclude that the weight of the evidence supports the conclusion reached by the Appellate Division majority. Neither the fact that the same duties are performed by the contractor's employees as were performed previously by the district's employees nor that the contract may be terminated on notice is determinative. Moreover, all of the Westchester criteria except supervision and control are unequivocally met and the good faith of the district is demonstrated by the savings in excess of $100,000 a year which, as the Trial Judge found, result from the district's use of Star personnel in place of its former guard employees.

Although because of the monitoring and communications system that protected the district's buildings there was a necessary interrelationship between work of Star's guards and that of the district's employees, the latter neither supervised nor controlled the former. As concerns supervision, although district personnel were used as message conduits...