Tuesday, February 16, 2010


Finally, on the issue of what happens at a later union hearing on reinstatement or other hearing if the DOL first finds you innocent of misconduct we go to IN RE WHARTON v. N.Y.C. D.O.C., 0103493/2008 (8-12-2008), 2008 NY Slip Op 32289 (Sup. Ct. N.Y. August 12, 2008):

"Initially, this court finds that the DOC is not barred from arguing that it terminated petitioner in good faith, by virtue of the award petitioner obtained from the Department of Labor. New York Labor Law § 623 (2) declares that "[n]o finding of fact or law contained in a decision rendered pursuant to this article by a referee, the appeal board or a court shall preclude the litigation of any issue of fact or
law in any subsequent action or proceeding[.]"[fn1] Consequently, New York courts have uniformly held that determinations of the Department of Labor concerning unemployment insurance are "without preclusive effect in [an] action" (Wooten v. New
York City Dep't of Gen. Servs., 207 AD2d 754, 754 [1st Dept 1994]; see also Matter of Watson v Bratton, 243 AD2d 295, 295 [1st Dept 1997]; Matter of Rivoli v Stern, 160 AD2d 601, 601 [1st Dept 1990]). Therefore, the Department of Labor's determination is without preclusive effect herein."

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