Herbert Kolbe, et al., Appellants,v.Christine J. Tibbetts,, et al., Respondents.BriefN.Y.November 14, 2013 To be argued by: TERRY M. SUGRUE, ESQ. (Time Requested: 15 Minutes) Court of Appeals of the State of New York HERBERT KOLBE, LYNN NICHOLAS, JOANN SEEFELDT and PHYLLIS HARRIS, Plaintiffs-Appellants, - against - CHRISTINE J. TIBBETTS, as Superintendent of Schools of the Newfane Central School District, JAMES REINEKE, as President of the Newfane Board of Education, NEWFANE BOARD OF EDUCATION and NEWFANE CENTRAL SCHOOL DISTRICT, Defendants-Appellants. Niagara County Clerk’s Index No. 143032 Appellate Division-Fourth Department Docket No. CA 12-00171 REPLY BRIEF FOR PLAINTIFFS-APPELLANTS REDEN & O’DONNELL, LLP Joseph E. O’Donnell, Esq. Attorneys for Plaintiffs-Appellants 135 Delaware Avenue, Suite 410 Buffalo, New York 14202 Tel: (716) 856-0277 Fax: (716) 843-8698 Terry M. Sugrue, Esq., Of Counsel Date Completed: June 13, 2013 APL-2013-00035 i TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I DEFENDANTS HAVE NOT DISPUTED THAT THE WORD PLACEMENT, SENTENCE STRUCTURE, PUNCTUATION AND CONTEXT OF SECTION 6.5.3'S “COVERAGE PROVIDED” CLAUSE UNAMBIGUOUSLY DEMONSTRATE THAT “THE COVERAGE WHICH IS IN EFFECT FOR THE UNIT” IS QUALIFIED BY “AT SUCH TIME AS THE EMPLOYEE RETIRES;” THEREBY ESTABLISHING THAT THE COVERAGE PROVIDED TO RETIREES SHALL BE THE SAME COVERAGE AS WAS IN EFFECT WHEN THE EMPLOYEES RETIRED . . . . . . . . . . . . . . . . 2 POINT II DEFENDANTS HAVE NOT DISPUTED THAT THE “COVERAGE PROVIDED” CLAUSE OF SECTION 6.5.3 CONTINUES TO OPERATE DURING RETIREMENT FOR THE SAME PERIOD OF TIME THAT THE REST OF SECTION 6.5.3 OPERATES: UNTIL THE EMPLOYEE REACHES AGE 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 POINT III DEFENDANTS FAILED TO ADEQUATELY REBUT THAT SECTION 6.5.3'S USE OF THE TERM “COVERAGE” REFERS TO THE HEALTH INSURANCE COVERAGE AFFORDED TO UNIT EMPLOYEES BY THE DISTRICT’S PLANS . . . . . . . . . . . . . . . . . . . . . 4 A. Defendants’ Assertion That “Coverage” In Section 6.5.3 Means “Premium-Payment Mechanism” Is Without Merit . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Defendants’ Argument That The Court Should Ignore Textual Evidence That “Coverage” For Unit Employees Means The Health Insurance Coverage Afforded By The District’s “Plans” Is Without Merit And Disingenuous . . . . . . . . . . . . . . . . . . . . 6 C. Defendants’ Argument That The Court Should Ignore Extrinsic Evidence (i.e., Prior Collective Bargaining Agreements And Bargaining Proposals) Demonstrating That “Coverage” Refers To Health Insurance Coverage Misconstrues The Law And Is Without Merit . . . . . . . . . . . . . . . . . . . . 9 ii POINT IV DEFENDANTS HAVE NOT DISPUTED THAT THE HEALTH INSURANCE COVERAGE AFFORDED TO UNIT EMPLOYEES BY THE DISTRICT’S HEALTH INSURANCE PLANS INCLUDES SPECIFIC CO-PAY AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT V A RETIREE’S RIGHT TO THE COVERAGE IN EFFECT WHEN THE EMPLOYEE RETIRED AFFORDED BY SECTION 6.5.3 IS NOT EXTINGUISHED BY SECTION 6.4.6 . . . . . . . . . . . . . 16 POINT VI NEW YORK STATE LAW DOES NOT PERMIT SCHOOL DISTRICTS TO UNILATERALLY REDUCE OR ELIMINATE CONTRACTUALLY VESTED RETIREE HEALTH INSURANCE BENEFITS . . . . . . . . . . . 19 A. The Retiree Health Insurance Moratorium Provides A Minimum Level Of Benefits That May Be Enhanced By Contract . . . . . . . . . . . . . . . . . . . . . 19 B. After The Moratorium Was Originally Enacted Employees Gained The Right To Require Public Employers To Bargain Over Health Insurance Benefits For Employees Retiring On Or After The Effective Date Of The Collective Bargaining Agreement . . . . 21 C. The Task Force on Health Insurance For Retired Education Employees, Who Recommended The Moratorium Legislation In The First Place, Examined The Implications Of PERB’s Cohoes Decision Permitting Contractually Unalterable Retirement Benefits Extending Past The Expiration Of The Contract, And Made Several Recommendations To Address Them. None Of Those Recommendations Were Adopted . . . . . . . 22 D. The Retiree Health Insurance Moratorium Was Never Intended To And Does Not Permit The Alteration Of Contractually Vested Retiree Health Insurance Benefits . . . . . . . . . . . . . . . . . . . . . 25 POINT VII THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO PLAINTIFFS AND EXERCISED ITS DISCRETION IN ORDERING AN APPROPRIATE REMEDY . . . . . . . . . . . . . . . . . . . 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 32 iii TABLE OF CASES AND AUTHORITIES Cases A.H.A. General Construction, Inc. v. NYC Housing Auth., 92 N.Y.2d 20 (1998) . . . . . . . . . . . . . . . . . . 11 Corhill Corp. v. S.D. Plants, Inc., 9 N.Y.2d 595 (1961) . . . . . . . . . . . . . . . . . . 16 Dailey v. City of New York, 170 A.D. 267, 276-77 (1 Dept. 1915), st affd 218 N.Y. 665 . . . . . . . . . . . . . . . 29, 30, 31 Della Rocco v. City of Schenectady, 252 A.D.2d 82 (3d Dept. 1998) . . . . . . . . . . . . . 27 DiGiulio v. City of Buffalo, 237 A.D.2d 938 (4 Dept. 1997) . . . . . . . . . . . .th 13 Eighth Ave. Coach Corp. v. City of New York, 286 N.Y. 84 (1941) . . . . . . . . . . . . . . . . . . . . 8 Greenfield v. Philles Records, Inc., 98 N.Y.2d 562 (2002) . . . . . . . . . . . . . . . . . 9, 17 Matter of Aeneas McDonald Police Benevolent Assoc. v. City of Geneva, 92 N.Y.2d 326 (1998) . . . . . . . . 20, 22 Messmer v. Xerox Corp., 139 F.Supp.2d 398 (W.D.N.Y. 2001) . . . . . . . . . 20, 27 Reiss v. Financial Performance Corp., 97 N.Y.2d 195 (2001) . . . . . . . . . . . . . . . . . . 15 Sammons v. City of Gloversville, 175 N.Y. 346 (1903) . . . . . . . . . . . . . . . . 30, 31 Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409 (2001) . . . . . . . . . . . . . . . . . . 29 Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186 (1986) . . . . . . . . . . . . . . . . . . 29 Walla Walla v. Walla Walla Water Co., 172 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . 30 W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157 (1990) . . . . . . . . . . . . . . . . 11, 12 iv Other Authorities Chapter 729 of the Laws of 1994 . . . . . . . . . . . . . 21, 23 Chapter 30 of the 2009 Laws . . . . . . . . . . . 19, 20, 21, 28 Chapter 504, Pt. B, §14 of the Laws of 2009 . . . . . . . . . 23 City of Cohoes, 27 PERB ¶ 4529 (1994) . . . . . . . . . . . 21 City of Cohoes, 27 PERB ¶ 3058 (1994) . . . . 22, 23, 24, 25, 26 Education Law 3813 . . . . . . . . . . . . . . . . . . . . . 31 Restatement of Contracts [Second] §360, Comment a . . . . 30, 31 58 N.Y.Jur.2d Evidence and Witnesses § 587 . . . . . . . . . 12 1 ARGUMENT The essential facts are undisputed in this matter. Plaintiffs are former employees of the Newfane Central School District and were once represented by the Civil Service Employees Association, Inc. (“CSEA”). When Plaintiffs retired, they were granted certain retirement health insurance benefits pursuant to the collective bargaining agreements in force between the District and CSEA. Said benefits provided, in relevant part, that “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.” On January 2, 2010, the Defendants made certain changes to Plaintiffs contractual retirement health insurance benefits, causing Plaintiffs to pay increased co-pays for prescription drugs for which they were not previously liable. Accordingly, for the reasons contained in the Appellants’ brief as well as the instant Reply brief, Plaintiffs are not receiving the same health insurance coverage (i.e., plan) that the unit received when Plaintiffs retired. Moreover, as discussed below, Defendants other defenses are without merit. As was thoroughly explained in the Plaintiffs-Appellants’1 brief (pg. 16-21), by rearranging the word order chosen by the parties (i.e., by moving “at such time as the employee retires” to the front of its analysis instead of at the end where the parties (continued...) 2 POINT I DEFENDANTS HAVE NOT DISPUTED THAT THE WORD PLACEMENT, SENTENCE STRUCTURE, PUNCTUATION AND CONTEXT OF SECTION 6.5.3'S “COVERAGE PROVIDED” CLAUSE UNAMBIGUOUSLY DEMONSTRATE THAT “THE COVERAGE WHICH IS IN EFFECT FOR THE UNIT” IS QUALIFIED BY “AT SUCH TIME AS THE EMPLOYEE RETIRES;” THEREBY ESTABLISHING THAT THE COVERAGE PROVIDED TO RETIREES SHALL BE THE SAME COVERAGE AS WAS IN EFFECT WHEN THE EMPLOYEES RETIRED. Momentarily putting aside the meaning of the word “coverage,” as used in the collective bargaining agreements, the Defendants’ brief to this Court is revealing about what they did not dispute. Defendants do not claim that the language in collective bargaining agreement Section 6.5.3 which states that “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires” means employees can obtain coverage other than what was “in effect for the unit at such time as the employee retires.” As the use of the term “shall” clearly and unambiguously demonstrates, Section 6.5.3 provides no right to subsequently change “coverage” to something other than what was in effect for the unit when the employee retires. Accordingly, whatever coverage means, there has been no dispute between the parties that Section 6.5.3 fixes it to the same coverage that was in effect for the unit when the employee retires -- which is what it clearly and unambiguously requires. 1 (...continued)1 had placed it), the Appellate Division erroneously concluded that after “the time of his or her retirement” Section 6.5.3 does permit retirees to receive coverage other than what was “in effect for the unit at such time as the employee retires.” 3 POINT II DEFENDANTS HAVE NOT DISPUTED THAT THE “COVERAGE PROVIDED” CLAUSE OF SECTION 6.5.3 CONTINUES TO OPERATE DURING RETIREMENT FOR THE SAME PERIOD OF TIME THAT THE REST OF SECTION 6.5.3 OPERATES: UNTIL THE EMPLOYEE REACHES AGE 70. Again, momentarily putting aside the meaning of the word “coverage,” as used in the collective bargaining agreements, the Defendants’ brief to this Court is revealing about what they did not dispute. Defendants do not dispute that the language in Section 6.5.3 that the “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires” means that the coverage is provided for the same period of time that the rest of Section 6.5.3 operates. Consequently, since Section 6.5.3 is operable until the eligible employee reaches age 70, then the coverage sentence at the end of Section 6.5.3 is also operable until the employee reaches age 70. 4 POINT III DEFENDANTS FAILED TO ADEQUATELY REBUT THAT SECTION 6.5.3'S USE OF THE TERM “COVERAGE” REFERS TO THE HEALTH INSURANCE COVERAGE AFFORDED TO UNIT EMPLOYEES BY THE DISTRICT’S PLANS. The central dispute in this appeal is what “coverage” means. Does it refer to “premium-payment mechanism” (as the Defendants assert) or does it refer to the health insurance coverage afforded to unit employees by the District’s plans (as the Plaintiffs demonstrated). A. Defendants’ Assertion That “Coverage” In Section 6.5.3 Means “Premium-Payment Mechanism” Is Without Merit. There is no evidence to support the Defendants’ proffered definition of the word “coverage” as used in Section 6.5.3. Defendants merely point to the placement of the “coverage provided” sentence at the end of Section 6.5.3 and assert that it must apply to a “premium-payment mechanism” similar to the prior sentence involving benefits for a surviving spouse. However, this argument is without merit. The two sentences at the end of Section 6.5.3 state as follows: “...In the event of the retiree’s death, this benefit shall transfer to the surviving spouse. The coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.” (R.327). As the dissenting justices at the Appellate Division pointed out, “[i]n Section 6.5.3, the word ‘benefit’ is used to describe the sick-leave accrual and the word ‘coverage’ is used to describe the particular plan, or health insurance.” (R.7). Defendants have no While Plaintiffs pointed out to the Court that the2 majority implicitly rejected Defendants “coverage” equals “premium- payment mechanism” argument (Plaintiffs’ Brief, pg. 11), Defendants did not dispute this conclusion. See, footnote 1. 3 When this case was before the Trial Court, Defendants did4 not dispute the meaning of “coverage” by making their “premium- payment mechanism” argument, so the Trial Court did not have the chance to reject this assertion. 5 answer to this obvious problem with their analysis. In fact, unlike the analysis demonstrated by Plaintiffs, infra, Defendants cannot point to any other part of the cba where “coverage” supposedly means “premium-payment mechanism.” Moreover, while the Appellate Division majority reversed, it is clear that they implicitly rejected the Defendants’ “premium- payment mechanism” argument too. Notably, the majority2 interpreted the “coverage provided” language of Section 6.5.3 (not Section 6.4.6) to mean that upon retirement, retirees were entitled to the coverage that was in effect for the bargaining unit, to wit: “The unambiguous language in section 6.5.3 provides that, at the time of his or her retirement, the retiree is entitled to the same coverage that is provided to the bargaining unit.” 3 In fact, notwithstanding their erroneous rearrangement of the words “at such time as the employee retires,” the majority opinion also uses the word “coverage” in reference to “health insurance coverage” (R.5) and “health coverage” (R.6). At no point does the Appellate Division agree that Section 6.5.3's use of the term “coverage” meant “premium-payment mechanism.”4 Accordingly, the Defendants’ “coverage” equals “premium- payment mechanism” assertion is wholly without merit. The District’s health insurance plans for unit employee’s5 are defined in Section 6.4.2, entitled “Plan Descriptions,” which specifically includes co-pay amounts (R.323-24). It is undisputed that the co-pay amounts in the contractually defined health insurance plans were lower when the Plaintiffs retired than they are now. 6 B. Defendants’ Argument That The Court Should Ignore Textual Evidence That “Coverage” For Unit Employees Means The Health Insurance Coverage Afforded By The District’s “Plans” Is Without Merit And Disingenuous. In contrast to Defendants’ “premium-payment mechanism” argument, there is ample evidence (both textual and extrinsic) demonstrating that Section 6.5.3's use of the word “coverage” refers to the health insurance coverage afforded to unit employees by the District’s “plans.” 5 For example, in the “Health Insurance” section of the collective bargaining agreement (Section 6.4), it repeatedly uses the word “coverage” in relation to the District’s health insurance “plans” afforded to unit employees, to wit: 6.4.3 Funding A. For full-time employees who work a minimum of 10 months per year six or more hours per day. The District shall fully fund the “Choice Plan” described in paragraph 6.4.2A. The District will provide an employee coverage under “Plan 57,” as described in paragraph 6.4.2B hereof, provided the employee pays the difference in premium costs between that Plan and the Choice Plan, as described in paragraph 6.4.2A hereof (R.325)(emphasis added). 6.4.4 Duplicate Health Insurance A. This agreement prohibits an employee from enrolling in any health insurance plan if an employee or the employee’s spouse or dependents are covered by any one of the following three areas: ...NOTE: If an employee’s spouse has an HMO with single coverage elsewhere, the employee will be entitled to single coverage under the District’s plan. All other situations not covered by this See also, Appellants’ Brief, pg. 356 7 language shall be considered on a case-by-case basis. ...Where the employee or the employee’s spouse elects health coverage with another employer which provides equal or better benefits as compared to the District’s plan... (R.325)(emphasis added). 6.4.5 Right of Re-entry to District Health Program Every employee barred from enrollment in the District’s group insurance plan, by a voluntary or involuntary waiver, shall be assured of the opportunity to enter or re-enter the District’s plan if the disqualifying circumstances noted above are removed and the employee gives the District written notice of same. The exact date of coverage shall be the date of written notice to the District and will be determined by the carrier... (R.325- 26)(emphasis added). 6 The Defendants did not dispute that in every instance Section 6.4 of the agreement uses the term “coverage,” it refers to the health insurance coverage afforded to unit employees under the District’s plans. Instead, Defendants argued that those provisions were “unrelated” “because none of those provisions relate to retiree-healthcare benefits” (Respondents’ Brief, pg. 22). In other words, the Court should ignore the contract provisions detrimental to their argument because they concern the health insurance coverage for unit employees. This argument is both wholly without merit and disingenuous. The plain language of Section 6.5.3 expressly states that the “coverage” provided to retirees is based upon the coverage “unit” employees received when they retired (i.e., “the coverage provided shall be the coverage which is in effect for the unit at such time In fact, the cba, at Section 1.0.1(4), defines7 “Negotiating Unit” to mean employees (R.300). Moreover, the cba, at Section 1.0.1(8) defines “Employee” to mean a person holding a job in the negotiating unit (R.301). 8 as the employee retires”). Accordingly, one must look to what the7 “unit” -- that is, employees -- received when the employees retired in order to determine what coverage they are to receive under Section 6.5.3. The disingenuousness of Defendants’ argument is most prominently established by the fact that in the paragraph immediately prior to this argument, they acknowledged that “unit” means employees. They did so by defending the Appellate Division’s construction of Section 6.5.3, to wit: at the time of their retirement, retirees “receive the same benefits that are provided to the ‘bargaining unit’ - (that is, active employees).” (Respondents’ Brief, pg. 21)(emphasis added). Accordingly, far from being “unrelated,” looking at what “coverage” unit employees received at the time of plaintiffs’ retirement is the only logical place to look for an explanation of “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.” See, Eighth Ave. Coach Corp. v. City of New York, 286 N.Y. 84, 88 (1941)(a “contract must be read as a whole in order to determine its purpose and intent, and that single clauses cannot be construed by taking them out of their context and giving them an interpretation apart from the contract of which they are a part”). In light of this context, there is no reasonable basis to believe that Section 6.5.3's use of the term “coverage” refers to As the record demonstrates, the “coverage provided”8 sentence was always the last sentence of Section 6.5.3 -- after the conversion formula. It still is. The only differences in the (continued...) 9 something other than the health insurance coverage afforded to unit employees under the District’s plans. C. Defendants’ Argument That The Court Should Ignore Extrinsic Evidence (i.e., Prior Collective Bargaining Agreements And Bargaining Proposals) Demonstrating That “Coverage” Refers To Health Insurance Coverage Misconstrues The Law And Is Without Merit. While Plaintiffs have demonstrated that “coverage” clearly and unambiguously refers to the health insurance coverage afforded to unit employees under the District’s plans based solely on the four corners of the contract, that is not the only evidence offered in support of the Plaintiffs’ motion. In the event that the Defendants’ alternative interpretation -- that unlike every other time Article 6 uses the term “coverage,” only Section 6.5.3's use of the term “coverage” does not refer to health insurance coverage but instead means “premium-payment mechanism” -- is plausible (it is not), then that would justify examining extrinsic evidence. See, Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). As demonstrated in the Appellants’ brief (pg. 36-39), prior to the contribution formula’s modification in 1996, Section 6.5.3's formula was specific that the contribution was for “health insurance coverage” and that the “coverage” would be the same as it was for the “unit” when the person was still employed: “...in excess of 60 days at the rate of one year of health insurance coverage for each 30 days over 60, prorated. The coverage provided shall be the coverage which is in effect for the unit at such time as it is provided to the employee.” (R.104, 140). 8 (...continued)8 placement of the “coverage provided” sentence are the detailed explanations of “pro-rating” and the “surviving spouse” sentence. Pre-1996, “prorated” was simply the last word before the “coverage provided” sentence (R.104, 140). Now, post-1996, “pro- rating” is explained in two paragraphs before the “coverage provided” sentence (R.327). Pre-1996, there was no “surviving spouse” clause in Section 6.5.3. It was included for the first time following the Defendants’ 1996 proposal (R.199). Plaintiffs also respectfully direct the Court’s attention9 to the numerous 1996 collective bargaining proposals which demonstrate that Section 6.5.3's use of the term “coverage” refers to health insurance coverage (Plaintiffs’ Brief, pg. 37-39). In addition, Plaintiffs respectfully direct the Court’s attention to the prior collective bargaining agreement language and proposals demonstrating the “coverage” that unit employees received was the health insurance “plans” offered by the District (Plaintiffs’ Brief, pg. 40-43). 10 The “coverage” in the last sentence of Section 6.5.3 obviously referred to the “health insurance coverage” in the immediately preceding sentence -- used only eight words earlier. 9 When Defendants disingenuously ask this Court to believe that the “coverage provided” sentence at the end of Section 6.5.3 “does not concern healthcare benefits” (Respondents’ Brief, pg. 18), they fail to mention or explain this clear and unambiguous language (i.e., “health insurance coverage”). Defendants also fail to explain how their subsequent inclusion of a “surviving spouse” clause in their 1996 proposal (R.199) supposedly changed the meaning of Section 6.5.3's “coverage” sentence from “health insurance coverage” to “premium-payment mechanism.” Instead of disputing this clear cba language (or their own use of the term “coverage” to refer to health insurance coverage afforded to the unit by the District’s “plans” in their own bargaining proposals (R.198-99)), Defendants argue that the Court For example, the Trial Court correctly found that “the10 contract language is unequivocal” thereby rendering the additional evidence “impermissible parol evidence and thus, [was] not [] considered by [the] Court” (R.24). 11 must not consider this evidence because of a “merger clause” (Respondents’ Brief, pg. 26). Defendants’ argument misapplies the parole evidence rule and is wholly without merit. The District can not have it both ways. On the one hand, it can accept that for “unit” employees, the parties’ cba used “coverage” to refer to the health insurance coverage under the District’s plans (e.g., Section 6.4.3's use of “coverage” as the health insurance “plans” in 6.4.2A and 6.4.2B -- which the contract specifies includes co-pays) and that Section 6.5.3's reference to the “coverage” “in effect for the unit” refers to what unit employees received. This would make the term “coverage” clear and unambiguous; therefore, precluding extrinsic evidence. 10 On the other hand, the District can try to argue that “the CBAs do not define coverage” (Respondents’ Brief, pg. 22). However, if the term “coverage” is not defined, then it is not clear and unambiguous, thereby permitting the use of extrinsic evidence to help define what the agreement means. In arguing that the “merger clause” renders the extrinsic evidence “inadmissible,” Defendants misconstrue the parol evidence rule. While “extrinsic evidence [cannot] be introduced to alter, vary or contradict the clear and unambiguous terms of an integrated agreement” (See, A.H.A. General Construction, Inc. v. NYC Housing Auth., 92 N.Y.2d 20 (1998), citing W.W.W. Assocs. v. Giancontieri, As discussed in Plaintiffs Brief (pg. 9), the only11 extrinsic evidence Defendants offered in connection with the summary judgment motions were affidavits from individuals who bargained on behalf of the District for the 2007-2012 cba stating (continued...) 12 77 N.Y.2d 157 (1990)), the rule does not apply where the language is unclear or ambiguous, to wit: “Evidence to explain an ambiguity, or to show the meaning of technical terms, is not regarded as an exception to the general rule prohibiting parole evidence to vary or contradict the terms of a written instrument because such evidence does not contradict or vary the written instrument but simply places the court in the position of the parties when they made the contract and enables it to appreciate the force of the words that they used in reducing it to writing. Because the purpose of admitting extrinsic evidence to the writing where doubt arises upon the face of the instrument as to its meaning is not to enable the court to hear what the parties said but to enable it to understand what they wrote as they understood it at the time, such evidence is explanatory and admissible only as consistent with the terms of the contract. While parole evidence will not be allowed to change a ‘plain meaning,’ it may be useful to eliminate a doubtful one since written words may have more than one meaning.” 58 N.Y.Jur.2d Evidence and Witnesses § 587. Moreover, contrary to the Defendants’ assertions, there is no contrary extrinsic evidence rebutting the evidence that “coverage” under Section 6.5.3 refers to the health insurance coverage under the District’s plans. While the Defendants assert that Plaintiff Kolbe’s understanding of the meaning of the agreements “is not probative” -- even though, unlike all of the Defendants’ affidavits, Mr. Kolbe actually participated in the collective bargaining negotiations when the at-issue language of Section 6.5.3 was drafted, discussed and agreed upon -- Defendants pointedly fail to hold themselves to the same standard. Contrary to the Defendants’ assertions, their uncommunicated and subjective belief about what the language allows, is not probative evidence. See,11 (...continued)11 that during their bargaining with CSEA, the District did not discuss whether the health insurance changes would affect employees who were already retired (and, thus, were no longer represented by CSEA) (R.215, ¶16, R.339, ¶3-7, R.342, ¶4-7). In fact, Section 6.4.3 removes all doubt. Section 6.4.312 provides that the “coverage” afforded to unit employees is the health insurance “plans” described in Section 6.4.2, to wit: (continued...) 13 DiGiulio v. City of Buffalo, 237 A.D.2d 938, 939 (4 Dept.th 1997)(the “unilateral expression of one party’s postcontractual subjective understanding of the terms of the agreement...[is] not probative as an aid to the interpretation of the contract”). Accordingly, the Defendants have submitted no conflicting extrinsic evidence requiring a remand. POINT IV DEFENDANTS HAVE NOT DISPUTED THAT THE HEALTH INSURANCE COVERAGE AFFORDED TO UNIT EMPLOYEES BY THE DISTRICT’S HEALTH INSURANCE PLANS INCLUDES SPECIFIC CO-PAY AMOUNTS. The next part of the analysis is: (1) what are the District’s health insurance “plans” for the unit; (2) whether the District’s health insurance “plans” specified certain prescription “co-pay” amounts for the unit when the Plaintiffs retired; and (3) whether the Plaintiffs are now paying higher prescription co-pay amounts than the plans that were in effect for the unit when the Plaintiffs retired. The Defendants do not dispute that Section 6.4.2, entitled “Plan Descriptions,” contains the District’s health insurance “plans” referred to in the cba. Nor do Defendants dispute that12 (...continued)12 “The District will provide an employee coverage under ‘Plan 57', as described in paragraph 6.4.2B hereof, provided the employee pays the difference in premium cost between that Plan and the Choice Plan, as described in paragraph 6.4.2A hereof.” (R.325)(emphasis added). 14 the “plans” expressly specify prescription drug co-pay amounts and that the contractually specified prescription co-pay amounts were lower when Plaintiffs retired than they are now. In fact, Defendants plainly stated these facts in their own brief to this Court (Respondents’ Brief, pg.6-8). However, contrary to the Defendants’ arguments, referencing the “plans” in the cba’s that were in effect when Plaintiffs retired is not impermissible parol evidence. While Section 6.5.3 of the current cba continues the retirees’ right to the coverage that was in effect for the unit when they retired (as demonstrated above, that coverage means the health insurance coverage afforded to unit employees by the District’s plans), the current collective bargaining agreement does not specify what coverage (i.e., plan) was actually in effect when the Plaintiffs retired. Accordingly, reviewing parol evidence in the form of the prior collective bargaining agreements is necessary to appreciate the force of the words when the parties’ wrote the agreement. While Defendants argue that coverage is not “synonymous” with co-pay rates and there is no evidence that coverage “means defined prescription co-pay rates” (Respondents’ Brief, pg. 18), these arguments are without merit. The Plaintiffs do not argue that the words “coverage” and “co-pays” have the same meaning. Rather, Plaintiffs have demonstrated that the “coverage” provided to 15 retirees through Section 6.5.3 is the same coverage (i.e., plan) that was afforded to unit employees when the plaintiffs retired, including the contractually specified prescription drug co-pay amounts. In summary, Section 6.5.3 measures the coverage provided to retirees by the coverage that was “in effect for the unit” (Point IIIB, supra). “Unit” means employees (Section 1.0.1(4)). Section 6.5.3 specifies the coverage provided is what the unit received when the employee retires (i.e., “at such time as the employee retires”) (Point I, supra). The cba, at Sections 6.4.3, 6.4.4, and 6.4.5, provides that the coverage afforded to unit “employees” is the health insurance “plans” offered by the District (Point IIIB, supra). The “plans” are defined in Section 6.4.2 (Point IV, supra) and include the “co-pays” expressly set forth as part of the plans (Point IV, supra). Therefore, it necessarily follows, that Section 6.5.3's “coverage” provides retires with the health insurance “plans,” including the co-pay amounts expressly specified therein, that were in effect when the plaintiffs retired. See, Reiss v. Financial Performance Corp., 97 N.Y.2d 195 (2001)(Courts may not “by construction and or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing”). Moreover, since the coverage provided by Section 6.5.3 “shall be” the coverage that was in effect when the employees retired (Point I, supra) and such coverage lasts as long as the benefit afforded by Section 6.5.3 does (Point II, supra), then the District If the parties had intended that the level of coverage13 would always be whatever the current unit employees had, they would not have used the words “which is in effect for the unit at such time as the employee retires” at all. See, Corhill Corp. v. S.D. Plants, Inc., 9 N.Y.2d 595, 599 (1961)(“It is a cardinal rule of construction that a court should not adopt an interpretation which will operate to leave a provision of a contract...without force and effect”). 16 is prohibited from changing the “co-pay” amounts specified in the “plans” that were “in effect” when the Plaintiffs retired, “until the employee reaches age 70.”13 POINT V A RETIREE’S RIGHT TO THE COVERAGE IN EFFECT WHEN THE EMPLOYEE RETIRED AFFORDED BY SECTION 6.5.3 IS NOT EXTINGUISHED BY SECTION 6.4.6. Since it has been demonstrated that Section 6.5.3 requires that retirees receive the same coverage that was in effect for the unit when they retired, and that it must be maintained until the employee reaches age 70, and that coverage refers to the District’s “plans,” which include the contractually specified co-pay amounts, then the last remaining contractual interpretation issue is whether Section 6.4.6's opportunity to “continue” group health insurance cancels out the additional right to specific “coverage” afforded to certain eligible employees for a limited time by Section 6.5.3. In this case, both parties agree that Section 6.4.6 does not cancel out the rights afforded by Section 6.5.3. For example, even Defendants argue that Paragraphs 6.4.6 and 6.5.3 “serve separate and unique functions” (Respondents’ Brief, pg. 17). The Plaintiffs agree that Section 6.5.3 and Section 6.4.6 provide separate and complimentary protections (Appellants’ Brief, pg. 29-34). 17 Among other things, Plaintiffs demonstrated that the two provisions apply to different sets of employees (Appellants’ Brief, pg. 29-30). Section 6.4.6 is more general, applying to all employees. Section 6.5.3 is more specific, applying to only certain eligible full-time employees. Thus, for those employees not eligible for Section 6.5.3 benefits, the ability to purchase health insurance at a “group” rate under Section 6.4.6 is a significant benefit. Moreover, Plaintiffs demonstrated that the different periods of time that the two provisions operate also work to compliment one another (Appellants’ Brief, pg. 30-32). For example, when the employee reaches age 70, District-paid health insurance “coverage” expires for those full-time employees who are eligible under Section 6.5.3. However, those retirees are still provided access to purchase, on their own, affordable health insurance at a “group” rate (which is significantly less expensive than at an individual rate) under Section 6.4.6, thereby providing such retirees with significant savings in the purchase of health insurance even after Section 6.5.3 expires. Further, in spite of the above, if the Court finds the language ambiguous as to whether the two provisions provide complimentary coverage, then that would justify examining the extrinsic evidence. See, Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). The prior collective bargaining agreements demonstrate that Section 6.5.3 and Section 6.4.6 historically provided different benefits (Appellants’ Brief, pg. 33-34). For example, prior to 1994, Section 6.4.6 only permitted retirees to 18 pay for the “Hospitalization plan” of the District (R.103). However, at that same time, Section 6.5.3 expressly entitled eligible retirees to District-paid “health insurance coverage” (R.104). Clearly, the parties crafted Sections 6.5.3 and 6.4.6 to bestow different and complimentary protections upon retirees. Defendants did not dispute the specifics of any of this analysis. Instead, Defendants acted as though it did not exist and simply argued that if the Plaintiffs’ interpretation of complementary rights was correct, then “Paragraph 6.4.6 would be rendered meaningless” (Respondents’ Brief, pg. 17). However, as demonstrated above, Plaintiffs’ interpretation does not render Section 6.4.6 meaningless. Rather, Plaintiffs’ interpretation provides the most plausible meaning to both sections, i.e., one that affords separate and complementary protections for retirees. At its core, Defendants’ argument simply boils down to its refusal to acknowledge that Section 6.5.3 has more than one part. Not only is there a ratio that converts sick leave accruals into health insurance premium payments (which Defendants acknowledge gives retirees “the means to pay” for health insurance), but the Section concludes with a sentence establishing what “coverage” is provided to retirees by the health insurance premiums purchased. For all of the reasons stated above, as well as for the reasons in the Appellants’ first brief to this Court, it is clear that the retirees’ “coverage” under Section 6.5.3 is the health insurance “plan” in effect at the time each plaintiff retired, as described in Section 6.4.2, including the co-pay amounts specified therein. 19 POINT VI NEW YORK STATE LAW DOES NOT PERMIT SCHOOL DISTRICTS TO UNILATERALLY REDUCE OR ELIMINATE CONTRACTUALLY VESTED RETIREE HEALTH INSURANCE BENEFITS. Contrary to Defendants’ argument, the New York State Legislature never allowed school districts to reduce or eliminate contractually vested retiree health benefits, even if the same changes were made with respect to current employees. Defendants’ reliance upon the retiree health insurance moratorium in Chapter 30 of the 2009 Laws is misplaced. A. The Retiree Health Insurance Moratorium Provides A Minimum Level Of Benefits That May Be Enhanced By Contract. Chapter 30 of the 2009 Laws provides as follows: “§1. From on and after June 30, 1994 until May 15, 2010, a school district...shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependants or the contributions such board of district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees.” (R.198) (emphasis added). The Defendants’ argument regarding the retiree health insurance moratorium is essentially as follows: the moratorium does not prohibit the Defendants from changing the retirees benefits to that of active employees, therefore, nothing can and the change to retiree benefits must be permitted. This argument is wholly without merit. The statute does not say anything about what it “permits”, it only describes what is “prohibited”. Other public employees were not as fortunate and did not14 receive any statutory protection against the reduction or elimination of voluntarily conferred health insurance benefits. See, Matter of Aeneas McDonald Police Benevolent Assoc. v. City of Geneva, 92 N.Y.2d 326 (1998). 20 Moreover, as the Trial Court correctly observed: Chapter 30 of the 2009 Laws of New York State contains no discussion or reference as to how it is meant to affect contractual rights; justifying an examination of the legislative history and intent regarding collective bargaining agreements (R.23) (emphasis added). The statutory history demonstrates that the moratorium was enacted to stop school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred upon school district retirees (R.372-86). 14 Thus, the retiree health insurance moratorium is a minimum statutory protection and operates like any other minimum protection which may be enhanced by contract. For example, under the Fair Labor Standards Act (“FLSA”) employment is “prohibited” unless the employer provides the employee with a minimum wage and an overtime payment for hours worked more than 40 per week. Although the statute requires a certain minimum payment, it does not prevent or eviscerate contractual commitments that provide greater benefits. Similarly, although health insurance benefits do not automatically vest under the ERISA statute, the limited statutory rights may be enhanced by contract. See, Messmer v. Xerox Corp., 139 F.Supp.2d 398, 402 (W.D.N.Y. 2001) (“Certainly an employer may contractually limit its ability to modify a welfare plan, or bind itself not to discontinue or reduce existing welfare benefits, but the [ERISA] imposes no such obligation. In the absence of such a 21 contractual promise, therefore, welfare benefits simply do not vest.”). As the Trial Court stated, the moratorium acts in the same way: “statutes such as Chapter 30 or ERISA, dealing with employee rights and benefits, do not limit districts’ or employees’ ability to contract for more benefits beyond what is statutorily prescribed.” (R.24). In fact, the retiree health insurance moratorium does not even mention contractual benefits. Nor does the moratorium expressly or implicitly “permit” a school district to abrogate contractual commitments to retires. B. After The Moratorium Was Originally Enacted Employees Gained The Right To Require Public Employers To Bargain Over Health Insurance Benefits For Employees Retiring On Or After The Effective Date Of The Collective Bargaining Agreement. Chapter 30 of the 2009 Laws had its origins in a similar provision contained in Chapter 729 of the Laws of 1994 (R.372). At that time, most school district retirees did not have contractually vested health insurance benefits because the Public Employment Relations Board (“PERB”) had held in a line of cases that such benefits were only mandatorily negotiable for employees who retire during the life of the collective bargaining agreement extending those benefits and only if they did not extend beyond the life of the collective bargaining agreement. See, PERB Director’s Decision in City of Cohoes, 27 PERB ¶ 4529 (1994). As a result, most retiree health benefits were only voluntarily provided by school See, Matter of Aeneas McDonald Police Benevolent Assoc.15 v. City of Geneva, 92 N.Y.2d 326 (1998). 22 district “policy” (R.374), which absent a contractual commitment stating otherwise could be unilaterally rescinded. 15 On September 30, 1994, in City of Cohoes, 27 PERB ¶ 3058, PERB receded from the above-referenced line of cases and held, for the first time, that a demand for health insurance benefits for the life of employees retiring on or after the effective date of the agreement was a mandatory subject of negotiation. PERB noted the significance of its decision: “Because the union is not the representative of retirees, it has no bargaining rights or obligations on behalf of retirees. Similarly, the employer could not compel the union to negotiate on their behalf and there are questions under Pittsburgh Glass...as to the parties’ right to even bargain voluntarily on behalf of retirees, at least to the extent the bargaining would effect a change in retiree benefits which was unacceptable to them. Therefore, the demand once negotiated might well be insulated from any subsequent negotiation by the parties” (emphasis added). This was a significant change, as it provided future retirees with a means to obtain life-long contractually binding retiree health insurance benefits. C. The Task Force on Health Insurance For Retired Education Employees, Who Recommended The Moratorium Legislation In The First Place, Examined The Implications Of PERB’s Cohoes Decision Permitting Contractually Unalterable Retirement Benefits Extending Past The Expiration Of The Contract, And Made Several Recommendations To Address Them. None Of Those Recommendations Were Adopted. Prior to the health insurance moratorium’s enactment, then- Governor Mario Cuomo created a Temporary Task Force on Health Insurance For Retired Education Employees. The moratorium was 23 based on an interim recommendation from the Task Force (R.373). It was intended to “limit the risk of benefit reductions to educational retirees until the Temporary Task Force has made its final recommendations” Id. After enactment of the moratorium, the Task Force issued its final report (R.376). The Final Report of the Task Force is an essential element of the legislative history for Chapter 729 of the Laws of 1994. In it, the Task Force thoroughly examined the consequences of the Public Employment Relations Board’s decision in City of Cohoes, 27 PERB ¶ 3058 (1994), which changed the landscape of retiree health insurance benefits by holding that a demand for health insurance benefits for the life of employees retiring on or after the effective date of the agreement was a mandatory subject of negotiations. Since the Cohoes decision was decided while the Task Force was deliberating, the Task Force made several specific recommendations to address it. However, as discussed below, none of the recommendations to address Cohoes were adopted by the Legislature when it made the retiree health insurance moratorium permanent (L.2009, Ch. 504, Pt. B, §14)(R.386). In its findings and conclusions, the Task Force noted, in relevant part, the following about Cohoes: Cohoes...conclud[es] that the duration of a health insurance benefit for a present employee after retirement is not material to its negotiability. Simply stated, present employees through their employee organization can negotiate a level of benefit that potentially may never be able to be altered and may exist for the life of each present employee upon retirement. (R.382) (emphasis added). The Task Force considered retiree health benefits that could not be altered a “conundrum”. The Task Force proposed several 24 recommendations to the Legislature addressing the “Cohoes conundrum”. For example, the Task Force proposed changing the retiree health insurance moratorium to make it apply to contractually vested retiree health benefits: (2) Make permanent the temporary legislation while providing a resolution of the Cohoes conundrum by making it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree’s health benefits can be under the present temporary legislation; i.e., once retired a retiree’s health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees. This alternative does not impose a mandate on school districts. It has the net effect of providing a mechanism to reduce health insurance costs for retirees without unilaterally selecting a group which otherwise has no representation under the Taylor Law or other legal protection. The school district would have the ability to set its costs for employees and retirees and offset those costs through the negotiation of other benefits, such as salary or other fringes with present employees and extend any changes to the retirees. (R.383) (emphasis added). The Legislature never changed the retiree health insurance moratorium to adopt this proposed change (R.386). Another of the Task Force’s recommendations called for allowing the retiree health insurance moratorium to expire, resulting in some current retirees (without any statutory or contractual protection) losing health insurance while other future retirees, with contractually vested Cohoes benefits, would be able to keep it: 25 (3) Let the temporary legislation expire with no action, permitting school districts to continue to unilaterally diminish school retirees’ health benefits. This will lead to an unfair result and create many different classes of retirees if there are negotiated Cohoes agreements. School districts would have to refuse to negotiate a Cohoes provision because it possibly could never unilaterally affect those retirees or a legal mechanism would have to be created which would permit such a change after retirement. Not to address this question now (perhaps even for all retirees) leaves the open questions contained in the Cohoes decision for future litigation, resolution and unanticipated cost to the school districts. (R.383) (emphasis added). The Legislature never allowed the retiree health insurance moratorium to expire (R.361, ¶27; R.386). D. The Retiree Health Insurance Moratorium Was Never Intended To And Does Not Permit The Alteration Of Contractually Vested Retiree Health Insurance Benefits. In view of the language of the statute, its legislative history (including the Task Force’s final report), and the timing of PERB’s subsequent decision in City of Cohoes 27 PERB ¶ 3058 (1994) (making a demand for retiree healthcare extending past the expiration of the cba into a mandatory subject of negotiation), the moratorium was clearly aimed at protecting retiree health benefits that were not already contractually guaranteed and legally protected under Cohoes. It was meant to partially shield retirees from a school district’s decision to reduce or eliminate voluntary retiree health benefits. It was not meant to be used by a school district as a sword against retirees to alter vested retiree health benefits provided by contract. 26 The Task Force’s report makes clear that which the Public Employment Relations Board’s decision in City of Cohoes, 27 PERB ¶ 3058 (1994), already showed. PERB’s Cohoes decision enhanced future retirees’ rights by making contractual retiree health benefits a mandatory subject of negotiations unalterable for employees upon their retirement (such contractual rights did not exist when the moratorium was originally enacted). Indeed, the majority of the Task Force’s report concerned the “Cohoes conundrum”, including proposed solutions to that very issue in four (4) out of its six (6) recommendations (R.383-84). The Defendants’ position that school districts can reduce or eliminate collectively-bargained healthcare benefits for those already retired, provided the same modifications are made with respect to current employees, attempts to effectuate the Task Force’s second recommendation -- without the Legislature ever changing the law to adopt it! Clearly, Defendants seek to obtain from the Courts that which the Legislature refused to give them. Unlike, the Task Force’s second recommendation, the moratorium only speaks to what districts are “prohibited” from doing, not what districts are “permitted” to do. Accordingly, contrary to Defendants’ assertions, the moratorium is not an affirmative grant of right to school districts to abrogate contractually vested retiree health benefits. Moreover, contrary to the Defendants’ implication (Respondents’ Brief pg. 36), the contractual commitment (pursuant to Section 6.5.3) to continue providing eligible retirees (until age 70) with “the coverage that was in effect for the unit at such 27 time as the employee retires” has not expired. As the Trial Court astutely observed: Notably, plaintiffs may rely on the current contract, as well as prior agreements, given that all contain the exact same language; to wit, “the coverage provided shall be the coverage which is in effect for the unit at such time as the employees retires.” (Emphasis added) Reading this plain, unambiguous language, plaintiffs understandably referred back to the co-pay amounts they paid when they retired. [Bold emphasis in original Memorandum Decision] (R.23). The significance of “using language in each and every contract which fixed their rights to coverage as of the time they retired” is that it “insulate[s] retirees from losing important insurance rights during subsequent negotiations.” See, Della Rocco v. City of Schenectady, 252 A.D.2d 82 (3d Dept. 1998). Finally, although the Appellate Division did not address the moratorium issue (having decided the case on other grounds), the Defendants’ argument fails to even acknowledge, much less rebut, the thoughtful analysis offered by the Trial Court, to wit: Taken as a whole, as explained in plaintiffs’ and defendants’ papers...it is clear to this Court that the statute only proscribes a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law...statutes such as Chapter 30 or ERISA, dealing with employee rights and benefits, do not limit districts’ or employees’ ability to contract for more benefits beyond what is statutorily prescribed. See, Messmer v. Xerox Corp., 139 F.Supp.2d 398, 402 (WDNY, 2001)[“Certainly, an employer may contractually limit its ability to modify a welfare plan, but ERISA imposes no such obligation. In the absence of such a contractual promise, therefore, welfare benefits simply do not vest.”(Emphasis added)]. Another analogy could be drawn to minimum wage laws which proscribe employers from paying below a certain wage. Clearly, no one could credibly argue that such statutes give employers the right to only pay the minimum wage and ignore contractual rates of pay. (R.23-24) (emphasis added, bold in original Memorandum Decision). 28 In view of the above, Defendants’ reliance on Chapter 30 of the 2009 Laws is completely without merit. POINT VII THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO PLAINTIFFS AND EXERCISED ITS DISCRETION IN ORDERING AN APPROPRIATE REMEDY. In this case, the Trial Court properly granted summary judgment finding that the Defendants are contractually obligated to maintain health insurance coverage equivalent to that in effect at the time each plaintiff retiree retired. That is the threshold issue in this case. With respect to remedy, the Trial Court properly understood the continuing nature of the contractual violation, to wit: “We will not know a dollar amount of damages until defendants repair the breach and each plaintiff submits proof of what he or she paid in co-payments. The ongoing nature of the alleged breach does not preclude this Court from awarding summary judgment.” (R.25). Accordingly, the Trial Court ordered the Defendants to reinstate the appropriate health insurance coverage and ordered Defendants to account and pay to each plaintiff retiree for all expenditures made by each plaintiff retiree, in excess of what each plaintiff was obligated to pay under the terms of the coverage in effect at the time each retired (R.19, 25). Defendants assert that the Trial Court improperly ordered specific performance to fix the underlying contractual violation. This argument is without merit. Specific performance is an equitable remedy whereby the court, by its decree, compels a party to do precisely what he or she ought to have done without being 29 coerced. It is an equitable remedy for a breach of contract, rather than being a separate cause of action; that is, it is an alternative to the award of damages as a means of enforcing the contract. “The decision whether or not to award specific performance is one that rests in the sound discretion of the trial court.” Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409 (2001). In fact, contrary to Defendants arguments, the mere availability of a remedy at law is not sufficient to bar the plaintiff’s right of action for specific performance of a contract. “In order to deny one the relief which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate, and as certain, prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity.” Dailey v. City of New York, 170 A.D. 267, 276-77 (1 Dept. 1915), affd 218 N.Y. 665,st cited with approval by, Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186 (1986). Among the factors considered for evaluating whether the remedy of damages is “adequate” and “as complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity” is the continuing nature of a violation, to wit: “Principal factors. Under the rule stated in § 359, specific performance or an injunction will not be ordered if damages would be adequate to protect the injured party’s expectation interest. This Section lists the principal factors that enter into a decision as to the adequacy of damages. The enumeration does not purport to be exclusive of other factors. A court may also consider, for example, the probability that full compensation cannot be had without multiple litigation, although this 30 is an unusual circumstance in contract cases.” See, Restatement of Contracts [Second] §360, Comment a. “Where irreparable injury is threatened, or the damage be of such a nature that it cannot be adequately compensated by an action at law, or is such as, from its continuance, to occasion a constantly recurring grievance, the party is not ousted of his remedy by injunction.” See, Dailey v. City of New York, 170 A.D. 267, affd 218 N.Y. 665, citing, Walla Walla v. Walla Walla Water Co., 172 U.S. 1. “A court of equity will take cognizance of an action based upon continued and continuing invasions of property rights and gaining jurisdiction, upon the established facts of the case, to restrain their further continuance, and thus to prevent a multiplicity of suits, in successive actions for the injuries, award, as incidental to its decree, such damages as have occurred...Acquiring jurisdiction for one purpose, it will retain it for all purposes and adjust, as between the litigants, all matters involved in their dispute.” Sammons v. City of Gloversville, 175 N.Y. 346 (1903). In this case, the Complaint makes specific and uncontested allegations of fact showing that the Defendants changed the contractually required prescription drug co-pay amounts from $0-$5 to $7/$15/$35 (R.31-33). Therefore, each time a Plaintiff purchases any prescription drug, it would be more expensive than what was in effect for the unit when the Plaintiff retired. The differences in the co-payments could range from as low as $2 to as much as $35, per prescription. There are many variables in determining future damages including, but not limited to, (1) whether the health of the plaintiffs require prescription drugs; (2) for how long; (3) how many prescriptions are purchased; (4) which prescriptions are purchased (including whether any changes are required); and (5) the cost (i.e., tier) of each prescription. As is self-evident, a calculation of damages is an on-going amount and a factual determination of the full damages amount can only be ascertained after Defendants cease their violation of the 31 collective bargaining agreements and reinstate the applicable retiree health insurance coverage in effect on the date of the Plaintiffs’ retirement. As such, permitting the Defendants to continue breaching the contract would “occasion a constantly recurring grievance” and in order to obtain full compensation, multiple ligation would ensue every year because the statute of limitations for a cause of action against a school district is limited to one year. See, Education Law 3813. Accordingly, the result sought by Defendants, which, in reality, calls for perennial litigation for damages sustained would not be “adequate” and certainly not be as “prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity,” i.e., specific performance. See, Restatement of Contracts [Second] §360, Comment a; Dailey v. City of New York, 170 A.D. 267, affd 218 N.Y. 665; Sammons v. City of Gloversville, 175 N.Y. 346 (1903). In any event, Defendants’ damages argument does not affect the Trial Court’s threshold determination on the contractual issue that the Defendants are contractually obligated to maintain the health insurance coverage in effect at the time each plaintiff retired. If the Court finds that the remedy directed by the Trial Court is premature or inappropriate, then it is respectfully suggested that the Court modify the Trial Court’s decision and affirm partial summary judgment on liability and remand the damages component of the case back to the Trial Court for discovery and an opportunity for further development of the record on this issue of fact. 32 CONCLUSION For all of the foregoing reasons, we respectfully request that the Court reverse the Appellate Division’s order granting summary judgment to the Defendants and (1) reinstate the Trial Court’s judgment and order; or, in the alternative, (2) declare that the collective bargaining agreement language requires the Defendants to maintain the same coverage in effect when the plaintiffs retired, until they reach age 70, and remand to the Appellate Division for a determination on Defendants’ remaining affirmative defenses; or in the alternative, (3) if the Court finds that the language is ambiguous, remand to the Trial Court for the consideration of further extrinsic evidence and/or a decision by a trier of fact, together with such other and further relief as this Court may deem just and proper. Dated: Buffalo, New York Respectfully submitted, June 13, 2013 REDEN & O’DONNELL, LLP Joseph E. O’Donnell, Esq. Terry M. Sugrue, Esq. Attorneys for Plaintiffs- Appellants 135 Delaware Avenue, Suite 410 Buffalo, New York 14202 Telephone: (716) 856-0277 Facsimile: (176) 843-8698