Martinez v. MTA N.Y.C. Transit

Full title: In the Matter of the Application of HARLIN MARTINEZ, Petitioner, v. MTA…

Court: Supreme Court, New York County

Date published: Oct 18, 2022

2022 N.Y. Slip Op. 33578 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 651239/2020 Motion Seq. No. 001

10-18-2022

In the Matter of the Application of HARLIN MARTINEZ, Petitioner, v. MTA NEW YORK CITY TRANSIT, Respondent. For a Judgment Pursuant to Article 75 and 78 of the Civil Practice Law and Rules,

DEBRA A. JAMES, J.S.C

Unpublished opinion

MOTION DATE 12/10/2020

PRESENT: HON. DEBRA A. JAMES JUSTICE

DECISION+ ORDER ON MOTION

DEBRA A. JAMES, J.S.C

The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 18, 19, 21, 22, 23, 24, 25, 26, 28 were read on this motion to/for VACATE - AWARD.

ORDER

Upon the foregoing documents, it is

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs and disbursements to respondent.

DECISION

This court finds that respondent complied with the disciplinary procedures set forth in the collective bargaining agreement at bar (CAB), comprised of multiple steps, which culminated in final and binding arbitration. See Phillips v Manhattan and Bronx Surface Transit Operating Authority, 132 A.D.3d 149, 151 (1^st Dept 2015). Such procedures included the Step II meeting held on February 4, 2019, followed by final and binding arbitration, yielding the Opinion and Award dated

November 29, 2019 that terminated petitioner's employment as a Bus Maintainer. That such Step II meeting took place is evidenced by the Answer, which is verified by the Assistant Secretary of respondent, a person with knowledge, and states, at paragraph 106 that

"On November 5, 2018, petitioner's Step I hearing was held and the charges and penalty were sustained. Petitioner appealed the decision to Step II. The Step II hearing was held on February 4, 2019 and the charges and penalty were sustained. The Step II Decision was incorrectly identified as a Step III Decision. See Step I Decision, dated November 5, 2018, and Disciplinary Decision, dated February 4, 2019, annexed to the Verified Petition as Exhibit E."

Petitioner's signature on such Disciplinary Decision, which appears below the statement "I do not accept above decision after Step III Meeting and appeal to the Tripartite Arbitration Board" (NYSCEF Document Number 6), corroborates paragraph 106 of the Verified Answer.

With respect to petitioner's argument that he was entitled to a Tripartite Arbitration Board, once again respondent's Disciplinary Decision document form that referenced (see above) "the Tripartite Arbitration Board", which petitioner signed, does not conform with the collective bargaining agreement, as amended by CBA, December 16, 2002- December 15, 2005 Memorandum of Understanding, at ii, and A9, which eliminated the tripartite arbitration panel and substituted "a [single] neutral arbitrator" (NYSCEF Document Number 7, page 23 of 570).

Respondent should revise its document forms, having failed to make such updates, according to its own position, for almost twenty years. However, such failure does not rise to the level of respondent having violated the procedures under the subject CAB. Cf Brown v Popolizio, 166 A.D.2d 4 4 (1^st Dept 2 001) (de novo hearing granted where penalty imposed held to have been violative of agency's own rules and regulations).

The Notice of Examination for Bus Maintainers dated April 24, 2018, which petitioner appends as Exhibit C to his petition (NYSCEF Document No. 18), states in pertinent part "JOB DESCRIPTION Bus Maintainers - Group B * * * drive motor vehicles". Therefore, petitioner's contention that he was disciplined for being directed to carry out out-of-title work is belied by such document proffered by petitioner.

The Opinion and Award dated November 29, 2019 that terminated petitioner's employment as a Bus Maintainer was neither arbitrary, nor capricious, as it was grounded upon evidence before the arbitrator of petitioner's gross negligence in operating the tow truck with a damaged lift and his refusal to complete a report of the incident. Such determination was rational, "particularly in view of petitioner's disciplinary record, which included [two] prior [thirty (30) day] suspensions (Monahan v Doherty, 34 A.D.3d 346, 347 [1^st Dept 2006]), for major disciplinary infractions]"]), resulting in his being on a "final warning for gross misconduct" (NYSCEF Document Number 3, pp 7-8) .