Labor and Employment Arbitrator: Court Awards Attorney Fees For Failure To Comply With FOIL

Friday, April 28, 2017

Court Awards Attorney Fees For Failure To Comply With FOIL

Competitive Enterprise Institute v. The Attorney General, ____Misc. 3d___, 2017 NY Slip Op 2713 (Albany Co. April 19, 2017), illustrates an important legal point; attorneys fees can be awarded for the failure to comply with the Freedom of Information Law (aka "FOIL"). As the court stated:

In determining an award of fees and costs in a FOIL proceeding, the Court is mindful "that the decision whether to award such fees is discretionary even when the statutory prerequisites have been established" (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1293 [3d Dept 2009]), that an "award of attorney's fees is intended to 'create a clear deterrent to unreasonable delays and denials of access[ and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL' " (Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 931 [2d Dept 2016], quoting New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 [3d Dept 2011], and that the award should be should be reasonable and take into consideration appropriate factors including "the time, effort and skill required; the difficulty of the questions presented; the responsibility involved; counsel's experience, ability and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation"(Shrauger v Shrauger, 146 AD2d 955, 956 [3d Dept 1989]).

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Mitchell H. Rubinstein's Accomplishments

Education

J.D. Hofstra University School of Law

B.S. Cornell University School of Industrial and Labor Relations

Presently

-Hearing Officer, N.Y.C. Office of Administrative Trials & Hearings (“OATH”)

-Hearing Officer, N.Y.S. Education Dep’t., Office of Adult Career & Continuing Educational Services-Vocational Rehabilitation (“ACCES-VR”)

-Public Arbitrator-FINRA

-Adjunct Professor of Law, New York Law School

Formerly

-Employment Attorney, Sapir, Schragin, LLP (represented individuals)

-Senior Counsel, New York State United Teachers (“NYSUT”) (represented unions and union members)

-Adjunct Professor of Law, St. John’s Law School

-Labor Attorney, Trans World Airlines (“TWA”) (represented employer)

-Labor Associate, Breed, Abbott & Morgan (represented employers)

-Labor Associate, Seyfarth, Shaw, Fairweather & Geraldson (represented employers)

Published Scholarship

LAW REVIEW ARTICLES

1. Employees, Employers and Quasi-Employers; An Analysis Of Employees & Employers Who Operate In The Borderland Of An Employer-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).

2. Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, 42 U. Mich. J.L. Reform 517 (2009) (lead article).

3. Obama’s Big Deal; The 2009 Federal Stimulus; Labor And Employment Law At The Cross Roads, 33 Rutgers L. Rec. 1 (2009) (lead article).

4. A Lawyer’s Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, 103 Nw. U. L. Rev. Colloquy 317 (2009).

5. Privacy Legal Issues In The Public Sector, 58th Ann. N.Y.U. Conf. on Lab., ch. 18, pp. 629-669 (Wolters Kluwer, Jonathan Remy Nash & Samuel Estreicher eds. 2010)(by invitation).

6. Sprint/United Co. v. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of “Me Too’ Evidence Of Discrimination. But Did It? 102 Nw. U. L. Rev. Colloquy 264 (2008)

6A. Reply To Professors David L. Gregory and Paul M. Secunda With Respect To The Significance Of Sprint/United Management Company v. Mendelsohn, 102 Nw. U. L. Rev. Colloquy 387 (2008).

7. Parents As Quasi-Therapists Under the Individuals With Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008).

8. Is a Labor Relations Evidentiary Privilege Developing?,29 Berkeley J. Emp. & Lab. L. 221 (2008).

9. Assignment of Labor Arbitration, 81 St. John’s L. Rev. 41 (2007).

10. Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 (2006).

11. Union Immunity From Suit In New York, 2 N.Y.U. J. L. & Bus 641 (Summer 2006) (lead article).

12. Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer) (lead article).

13. Advisory Arbitration Under New York Law: Does It Have A Place In Employment Law? 79 St. John’s L. Rev. 419 (Spring 2005).

14. A New York Court Recognizes A Labor Union Evidentiary Privilege, 9 The Labor Lawyer 595 (Fall 1993).

15. The Use of Predischarge Misconduct Discovered After An Employee’s Termination As A Defense In Employment Litigation, 24 Suffolk Univ. L. Rev. 1 (1990) (lead article).

16. The Affirmative Action Controversy, 3 Hofstra Lab. L. J. 111 (1985).

SHORTER PUBLICATIONS

1. A Peek at New York Defamation Law, 82 N.Y.S. Bar. J. 58 (Nov./Dec. 2010).

2. Attorney Labor Unions, 79 N.Y.S. Bar Journal 23 (Jan. 2007).

3. Public Sector Labor and Employment Law (2d Ed. 1998) (By Lefkowitz, Osterman & Townley).

4. Contributing Editor, Discipline And Discharge In Arbitration (BNA 1998)

5. Reciprocal Discovery In Teacher Discipline Proceeding Under Section 3020-a Of The Education Law, Vol. 23, No. 2, p. 23, Labor & Employment Newsletter (NYS Bar Ass’n. June 1998).

6. Labor Arbitration Under New York Law, 64 N.Y.S. Bar Journal 35 (Sept/Oct. 1992).

7. Refusal to Hire Overqualified Applicants May Age Discrimination, NYLJ, May 17, 1991 at 1

8. Don’t Burden The Employers, National Law Journal, Oct. 30, 1989, at 13, col. 1.

Labor and Employment Arbitrator

Friday, April 28, 2017

Court Awards Attorney Fees For Failure To Comply With FOIL

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