Friday, March 12, 2010


In October 27 blog, I posted the following:

"Employee is a union member who is terminated. The union requests an arbitration and has an attorney for employee. In the meanwhile, employee has applied for unemployment insurance benefits and is denied for either misconduct or voluntary separation, etc. A hearing is requested by employee but the hearing is scheduled before the arbitration. Should the employee go ahead with the hearing prior to the arbitration? My initial suggestion would be to adjourn the hearing until the arbitration lawyer is at least consulted with. You would want to make sure with your arbitration attorney that nothing you do or say in the unemployment insurance hearing conflicts with your rights under the pending arbitration - or issues like collateral estoppel, res judicata, etc. But on the other hand, you are not receiving any money. I would like to hear from others on this."

I did hear from other attorneys from other legal groups but there was no consensus of opinion. The other day, however, I found the following case which I quote in part:

"PELZER v. TRANSEL ELEVATOR, 41 A.D.3d 379, 839 N.Y.S.2d 84[1st Dept 2007]

Because the doctrine of collateral estoppel is applicable to the quasi-judicial determinations of administrative agencies such as the Unemployment Insurance Appeal Board, such determinations become binding in a subsequent legal action for purposes of issue preclusion (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]).However,"[s]ince administrative agencies are normally charged with making determinations based on unique, and often times complex,statutes and regulations which apply specifically to them, care must be taken in identifying the precise issue necessarily decided in the first proceeding and comparing it to the issue involved in the second proceeding" (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987])."

In this case, the issue was whether a finding of employee misconduct could be used in a subsequent negligence action against the employer by the employee, the court holding that a finding of misconduct would not defeat the employee's action for negligence by summary judgment and that the issue of negligence, viz., proximate cause, etc., was not determined in the Unemployment Insurance Hearing.

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