FILED: ERIE COUNTY CLERK 01/29/2021 05:04 PM INDEX NO.

801275/2021
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/29/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE
----------------------------------------------------------------------X
In the Matter of the Application of Index No.
Date Purchased
BUFFALO TEACHERS FEDERATION, INC.,
VERIFIED PETITION
Petitioner,

- against -

BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF BUFFALO; CITY
SCHOOL DISTRICT OF THE CITY OF BUFFALO; and
KRINER CASH, as Superintendent of the City School
District of the City of Buffalo,

Respondents,

For an Order and Judgment Pursuant to Article 75 of the

Civil Practice Law and Rules.
----------------------------------------------------------------------X
Petitioner Buffalo Federation of Teachers, Inc. (“BTF”), by its attorney, Robert T. Reilly,

as and for its petition for an injunction in aid of arbitration against Respondents Board of Education

of the City School District of the City of Buffalo (“Board”), City School District of the City of

Buffalo (“District”), and Kriner Cash, as Superintendent of the City School District of the City of

Buffalo, respectfully alleges:

PRELIMINARY STATEMENT

1. The District opened the 2020-2021 school year without any in-person instruction

and severely limited the physical attendance of its employees because it could not provide a safe

and healthy school atmosphere during the COVID-19 pandemic. There can be no doubt that

Respondents knew their school facilities were not safe. Indeed, on December 9, 2020, when

addressing in-person instruction, Dr. Cash stated “I’m not sending our children and our staff into

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the mouth of the volcano…you’re going to have to override me on that. Not going to do it.” 1

At the same meeting, Respondents’ own Medical Director, Dr. Dennis Kuo, stated there is “just

way too much community spread right now…I think as a community we need to understand just

how much virus is out there. It is a lot and it is uncontrolled. It is also predicted to get worse

before it gets better.” 2

2. Nevertheless, without any explanation as to how those alarming circumstances

allegedly improved, Respondents decided that, beginning February 1, 2021, District schools would

be safe enough to require mandatory in-person attendance by all teachers and professional staff

and permit a phased-in approach in-person learning for students.

3. The right to a safe and healthy workplace is a basic fundamental right and is

guaranteed to BTF members by the collective bargaining agreement.

4. Yet, Respondents have refused to provide proof to BTF that any building

modifications or other precautionary health and safety measures have been made that would

sufficiently change their facilities from the self-described “volcano” of December 2020 to a safe

and healthy school environment by February 1, 2021.

5. BTF has requested health and safety information from Respondents on numerous

occasions to ensure students and its members would have a safe and healthy learning environment.

6. Despite their obligations to BTF, Respondents have refused to respond to BTF’s

information requests thereby undermining BTF’s ability to fulfill its obligation to protect the health

and welfare of its members and each members’ ability to protect the health and safety of District

1
https://buffalonews.com/news/local/education/too-much-community-spread-will-keep-buffalo-schools-closed-
through-january/article_e4fbf7f8-3ad9-11eb-80c0-7f36ad2d5ae0.html, last accessed January 28, 2021 (emphasis
added).
2
Id.
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students. Respondents also refused to allow BTF’s own health and safety experts to access District

facilities in order to conduct a thorough and meaningful safety review of the District’s buildings.

7. The inescapable conclusion is that Respondents are hiding the fact that District

facilities are not safe.

8. In response to Respondents’ repeated failure to fulfill their obligation to provide

requested health and safety information, the BTF filed a grievance under their collective

bargaining agreement (“CBA”) for, among other things, (1) violating Article VII, which requires

the Board to provide any and all information, statistics and records relevant to negotiations or

necessary for the proper administration or enforcement of the CBA, and (2) violating Article XI

for failure to provide safe and healthful conditions to carry out professional duties.

9. Since November 19, 2020, in the interest of safety and educational continuity for

students and staff—no BTF-represented employees have been required to physically report to

work at Respondents’ facilities.

10. The BTF commences this special proceeding under CPLR § 7502(c) for an

injunction in aid of arbitration to preserve the status quo ante set forth in Dr. Cash’s November 18,

2020 memorandum to all staff (“Cash Memorandum”), see Ex. “J”, infra, during the pendency of

the grievance to allow it to conduct meaningful review of the health and safety of District facilities.

As set forth in the annexed Affidavit containing the Report of Steven K. Fess, CIH, CSP, SMS,

FAIHA, the BTF’s request for information and access to physically examine buildings and

facilities, evaluate mechanical performance systems, examine filters, examine the condition of

infrastructure, and perform surface wipes and air sampling, are critical to providing a complete

assessment and factual review of the current status of any District facility regarding existing or

potential environmental health and safety issues.

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11. Moreover, the BTF requests a temporary restraining order to immediately enjoin

Respondents from disturbing the status quo ante set forth in the Cash Memorandum, the absence

of which would eviscerate BTF’s rights to information and to a safe and healthy workplace.

Indeed, the equities here tip decidedly in favor of BTF. BTF is simply asking the District, which

could have potentially avoided this crisis completely if it had met its obligation to provide the

requested information and access as it is, to continue to operate in the same manner it has been

doing for months. Contrarily, the BTF and its members will suffer irreparable harm if they are

forced to rush back to be physically present at work, many without any students present, without

first being able to verify a safe and healthy workplace.

JURISDICTION

12. This Court has jurisdiction to issue an order pursuant to CPLR Article 75 to grant

the relief requested herein.

VENUE

13. The basis for venue is that Respondents’ principal place of business is located

within Erie County.

PARTIES

14. Petitioner BTF is a domestic not-for-profit corporation organized and existing

under the laws of the State of New York, with its principal place of business located in Erie County.

BTF is an employee organization within the meaning of the Public Employees Fair Employment

Act, Civil Service Law §§ 200, et seq. (“Taylor Law”), and is the exclusive collective bargaining

representative of approximately 3,600 teachers and other educational professionals employed by

the District. Philip Rumore is the president of BTF.

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15. Respondent Board is a body corporate organized and existing pursuant to the laws

of the State of New York, is the governing body of the District, with its principal place of business

located in Erie County.

16. Respondent District is a city school district organized and existing pursuant to the

laws of the State of New York, with all the duties, powers, and responsibilities imposed by law.

17. Respondent Dr. Cash is the superintendent and chief executive officer of the

District, and has the duties, powers, and responsibilities imposed by law.

18. BTF and Respondent Board are parties to a collective bargaining agreement which

sets forth the terms and conditions of employment for BTF represented employees. A copy of the

collective bargaining agreement (“CBA”) is attached hereto as Exhibit “A”.

FACTS

a) COVID-19 Pandemic and Its Effects on the School System in New York

19. The United States remains gripped by the COVID-19 pandemic. The State of New

York has been under a continuous State disaster emergency since March 7, 2020. As of January

28, 2021, COVID-19 has killed over 427,000 people in the United States, including more than

32,900 New Yorkers. 3 These numbers increase daily.

20. The COVID-19 crisis in New York remains acute. The official New York State

website displays a large banner on every page declaring: “COVID-19 is still spreading, even as

the vaccine is here. Wear a mask, social distance and stay up to date on New York State’s

vaccination program.” 4

3
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. Last accessed January 29, 2021.
4
https://coronavirus.health.ny.gov/home. Last accessed January 29, 2021.

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21. COVID-19 is a severe, acute respiratory virus primarily spread from person to

person through respiratory droplets when an infected person coughs, sneezes, or talks. 5 COVID-

19’s dangers are compounded by transmission risk from asymptomatic and pre-symptomatic

infected persons. 6 It is understood that COVID-19 can be spread by human contact with surfaces

contaminated with droplets of the virus. 7

22. COVID-19 can infect anyone. People with certain underlying medical conditions,

however, are much more likely to become severely ill if they contract COVID-19, and may require

hospitalization, intensive care, or a ventilator to help them breathe, or they may even die. People

of any age with certain underlying medical conditions are at increased risk for severe illness and

death. For instance, according to the CDC, an individual having chronic kidney disease, at any

stage, is four times more likely to suffer a severe case than someone without this condition and a

person with multiple underlying conditions is five times more likely to suffer severe disease. 8

23. All schools in the State of New York, including those operated by Respondents,

were closed to in-person instruction from March 2020 to the end of the 2019-2020 school year

because of COVID-19.

24. Regarding the educational system, Governor Cuomo issued Executive Order 202.4,

which closed all schools for in-person instruction statewide; suspended the 180-day instructional

requirement and instructed school districts to create a plan for alternative education. Executive

Order 202.4 was extended on two-week basis until May 1, 2020, when Governor Cuomo issued

5
https://www.cdc.gov/coronavirus/2019-ncov/faq.html. Last accessed January 29, 2021.
6
https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html. Last accessed January 29,
2021.
7
Id.
8
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#chronic-
kidney-disease. Last accessed January 29, 2021.

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Executive Order 202.26 and closed schools for in-person instruction through the remainder of the

academic school year. Indeed, Respondents’ schools have had 100% remote learning since March

2020.

25. On August 7, 2020, Governor Cuomo permitted schools in the State to open for in

person instruction. 9 The Governor further ordered all school districts to post remote learning plans

online as well as plans for testing and tracing students and teachers for COVID-19. 10

26. Governor Cuomo unequivocally stated the public policy of the State is that teachers

must feel safe in order to return to the classroom. 11

27. In discussing potential reopening for in-person instruction, Governor Cuomo

stated: “Parents and teachers must feel safe and secure in each district’s plan to return to school.”12

Governor Cuomo further stated “teachers have to feel safe, they can’t teach if they don’t feel

safe” 13 and “you can’t order a teacher into a classroom.” 14

b) Buffalo Public Schools Open with 100% Remote Learning Because Its Schools Were
Not Safe to Accommodate In-Person Learning

28. Respondents acknowledged its facilities were not safe to permit in-person learning

for students and determined to open the 2020-2021 school year on a 100% remote instruction

model. The Board’s remote learning opening plan, entitled “Reopening Plan 100% Remote

Learning” is attached as Exhibit “B”.

9
https://www.governor.ny.gov/news/governor-cuomo-announces-based-each-regions-infection-rate-schools-across-
new-york-state-are. Last accessed January 29, 2021.
10
Id.
11
Id.
12
Id. (emphasis added).
13
https://www.nytimes.com/2020/08/07/nyregion/cuomo-schools-reopening.html. Last accessed January 29, 2021.
14
https://www.nbcnewyork.com/news/local/cuomo-expected-to-reveal-ny-schools-decision-but-says-its-ultimately-
not-up-to-him/2556237/. Last accessed January 29, 2021.
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29. On August 21, 2020, District representatives had a telephone conference with BTF

officers and staff.

30. During that conference, District Chief of Staff Dr. Darren Brown-Hall advised the

BTF that teachers and professional staff would be required to report to work the week of September

8, 2020, and required to be in the buildings at least two to three days a week. The District did not

explain why teachers would be required to be in the school buildings while all instruction would

be remote.

31. Although teachers would be required by the District to be physically present,

critical information regarding cleaning and disinfecting facilities, ventilation modifications,

screening protocol, testing, isolation protocol, social distancing, and so forth, for any school

buildings, had not been provided to BTF or its members.

32. District representatives advised they were “working to bring the ventilation systems

up to standards.” The District did not advise that the school buildings would actually be “up to

standards” by any particular date.

c) BTF’s Previous Request for Temporary Restraining Order and Injunction in Aid of
Arbitration Under Index No. 809577-2020

33. On August 31, 2020, BTF moved by order to show cause for a temporary

restraining order and injunction in aid of arbitration related to the previously mentioned health and

safety concerns.

34. By order dated October 7, 2020, the Honorable Frank A. Sedita, III, Supreme Court,

Erie County, denied the verified petition. 15

d) Current Information Demand and Grievance

15
BTF served and filed a Notice of Appeal to the Appellate Division, Fourth Department, from the October 7, 2020
order, which is still pending.
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35. On October 14, 2020, BTF President Philip Rumore submitted a request for

information to Respondents’ General Counsel, Nathanial Kuzma, Esq., for the following

information to allow the BTF to properly administer and enforce its CBA:

1. a. List of school buildings where at least MERV11-

rated filters are installed and the initial date of such installation (see
BPS Revised Reopening Plan, p. 49).

b. List of school buildings where they have not been

installed and the reasons therefor.

c. Copy of the records since September 8, 2020,

reflecting the changing of filters at each school building,
indicating the date and location of each filter changed.

2. Copy of records indicating repairs to windows to make them

openable in each school building.

3. Copy of log records as to cleaning/disinfecting of bathrooms

at each school building.

4. Copy of directives, instructions and like written documents

to maintenance workers regarding procedures and practices for the
cleaning and disinfecting at each school building.

5. The number of each of the following that have been and will
be provided to each school building:

a. Hand sanitizers, specifying type.

b. Facemasks.

c. N95 masks.

d. Eye protection, face shields and goggles, indicating

number of each.

e. Gloves.

6. Copy of daily cleaning logs for each school building since

September 8, 2020.

7. Copy of records reflecting when and where disinfectants are

applied in each school building since September 8, 2020.

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8. a. Copy of written material regarding building capacity

within each school building in general and within specific
instructional spaces.

b. Copy of written material provided from or in

conjunction with Canon Design regarding
building/classroom capacity.

9. Copy of written material detailing the availability of

drinking water in buildings (including drinking fountain/bottle
filling maintenance records and the availability of bottled water), as
well as testing performed on drinking water in the buildings.

10. Copy of communication plan for students,

parents/guardians, staff, and visitors that includes applicable
instructions, training, signage, and means of providing individuals
with information.

11. Copy of written protocol for daily temperature screening of

all students and staff, including who will be responsible for taking
temperature checks and transmitting data, and how that person or
persons will be chosen.

12. Copy of written protocol for students with temperature, signs

of illness, and/or a positive response to a questionnaire to be sent to
dedicated isolation area, including where each area in each building
will be located and who will supervise students in isolation areas,
and how that person will be chosen by the building principal.

13. Copy of written protocol to ensure all persons in school

buildings keep distance of at least 6 feet whenever possible,
including specifics regarding social distancing in classrooms,
hallways, offices and other spaces.

14. Copy of written protocol detailing how the district will

provide accommodations to all students and staff who are high risk
or live with a person at high risk.

A copy of BTF President Rumore’s Information Demand, dated October 14, 2020, is attached

hereto as Exhibit “C”.

36. BTF demanded the information requested be provided as soon as possible, but in

no event later than November 4, 2020. See Ex. “C”.

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37. Various District representatives have acknowledged receipt of BTF’s information

demand. Yet, to date, said demand has gone unanswered.

38. As a result, BTF served a verified notice of claim on Respondents alleging their

failure to respond to the information demand violated the Taylor Law. A copy of the verified

notice of claim, dated November 24, 2020, is attached hereto as Exhibit “D”.

39. On December 14, 2020, District attorney Shauna L. Strom e-mailed New York

State United Teachers (“NYSUT”) Labor Relations Specialist Robert Mueller, notifying him that

the District received a notice of claim related to Respondents’ failure to respond to the information

request and stated “Please be advised we are in the process of responding to your request/gathering

items to do the same.” A copy of the E-mail chain between Ms. Strom and Mr. Mueller between

December 14, 2020 and January 27, 2021 is attached hereto as Exhibit “E”.

40. Mr. Mueller contacted Ms. Strom on January 8, 2021, to inquire about the status of

BTF’s information request. Ms. Strom responded “I am still working on it. I’m asking you to

bear with us a little while longer.” See Ex. “E” at p. 2-3.

41. Respondents continued to refuse to respond to BTF’s information demand,

necessitating another e-mail from Mr. Mueller to Ms. Strom on January 19, 2021. In that e-mail,

Mr. Mueller stated “We still haven’t received this information from you. I’m going to have to

move forward with an Improper Practice charge on this unless you can provide the information by

tomorrow. Even if you are waiting on some of the information, we’d request that you send

everything you have collected thus far and update us on what you are still working on.” See Ex.

“E”, at p. 1-2.

42. After Respondents failed again to respond, Mr. Mueller notified Ms. Strom on

January 27, 2021 that BTF filed an improper practice charge with PERB regarding Respondents’

failure to respond to the information demand, but he could “withdraw the charge if [Ms. Strom

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were] able to provide the requested information by Friday [January 30, 2021]. See Ex. “E”, at p.

1. A copy of BTF’s Improper Practice Charge, dated January 26, 2021, is attached hereto as

Exhibit “F”.

43. Additionally, NYSUT Labor Relations Specialist Jenna S. Burke had a telephone

conversation with Respondents’ General Counsel, Nathaniel Kuzma on or about December 27,

2020. During that conversation, Mr. Kuzma asked Ms. Burke about arbitration of BTF’s health

and safety grievance at issue in the matter under Index No. 809577-2020. Ms. Burke responded

that providing the information requested in the October 14, 2020 information demand would likely

assist in getting a resolution. Mr. Kuzma responded that he did not have any information

responsive to BTF’s requests, and still needed to gather it from the District’s engineering and

custodial staff. See Burke Aff. at ¶¶ 9-12.

44. Despite all of the aforementioned assurances, neither Ms. Strom, Mr. Kuzma, nor

any other representative of Respondents provided information responsive to the October 14, 2020

information demand.

45. On January 22, 2021, BTF filed a grievance alleging, in part, a violation of Article

VII due to Respondents’ failure to respond to the October 14, 2020 information demand. A copy

of the January 22, 2021 grievance is attached hereto as Exhibit “G”.

46. On January 28, 2021, BTF President Rumore e-mailed Mr. Kuzma that BTF had

retained an industrial hygienist and requested Respondents permit BTF’s health and safety

professional unimpeded access to all District buildings in order to independently inspect their

COVID-19 related health and safety infrastructure. BTF President Rumore also stated that BTF’s

industrial hygienist was prepared to begin such inspections immediately. A copy of BTF President

Rumore’s e-mail to Mr. Kuzma, dated January 28, 2021, is attached as Exhibit “H”.

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47. Later that day, at a virtual labor management meeting, Mr. Kuzma rejected BTF’s

request to have their own industrial hygienist inspect the District’s facilities, stating in sum and

substance: “You’ve already made it clear that you are going to sue us, so no.”

48. On January 28, 2021, BTF filed an amended grievance to further include the

District’s refusal to allow BTF access to its schools to conduct a health and safety inspection in

furtherance of its demands for information. A copy of the January 28, 2021 Amended Grievance

is attached hereto as Exhibit “I”.

49. Due to a substantial backlog in the processing of BTF grievances and substantial

delays in grievances reaching arbitration, especially since the start of the Pandemic last March, it

is likely that this grievance will not reach the arbitration stage for one to three years. Rumore Aff.

at ¶¶ 23-26; Burke Aff. at ¶¶ 15-17; Mueller Aff. at ¶¶ 16-18.

50. However, if Respondents agreed to waive the remaining contractual grievance

stages relative to this grievance, the BTF would agree and is prepared to proceed with arbitration

immediately. Rumore Aff. ¶¶ 23-26]

51. As set forth in the annexed Affidavit of Steven K. Fess, CIH, CSP, SMS, FAIHA,

dated January 29, 2021, the information BTF requested in the October 14, 2020 information

demand represents a basic means to obtain facts for use in determining whether Respondents’

schools provide a safe and healthy workplace. A copy of Mr. Fess’s report is attached to the Fess

Aff. as Exhibit “A”. As stated in the report:

Without the information requested from the school district being

available to address the questions in the letter (and the discussion
review points I have noted above), or without having facility access
to physically examine buildings and facilities, evaluate mechanical
system performance, examine filters, conditions of infrastructure,
and perform surface wipes and possible air sampling, an assessment
and factual review of the current status for any building or facility
regarding existing or potential environmental health and safety

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issues – and report citing positive findings and possible areas for
improvement – cannot be completed.

See Fess Aff. at Ex. “A”.

52. BTF has not yet received a response to the original or amended grievance, but

should it be denied as expected, BTF intends to proceed as rapidly as possible to process the

grievance up to and including final and binding arbitration.

e) Respondents Demand That Schools Reopen for In-Person Instruction, and All
Faculty Physically Report to Work, Despite Their Persistent Position During the
Entire 2020-2021 School Year That District Schools Are Not Safe for Students

53. From the beginning of the school year until mid-November 2020, Respondents had

permitted a significant number of BTF represented employees to telework as an accommodation,

notwithstanding the requirement that employees physically attend work two days per week.

54. On November 18, 2020, Dr. Cash sent the Cash Memorandum to all District

employees, which removed the requirement for all District central office and school building staff

to maintain two days per week attendance on-site in their work locations. Instead, on-site work

for District employees was limited to no more than 25% of building or office staff for on-site

attendance at any one time. This change was made because Buffalo’s community spread of

COVID-19 had progressed to such a dangerous level that Respondents’ acknowledged it was not

safe for District employees to be required to physically attend work at their on-site locations. A

copy of the Cash Memorandum is attached as Exhibit “J”.

55. At a Board meeting on December 9, 2020, Dr. Cash was pressed about reopening

schools for in-person instruction. Dr. Cash responded adamantly about the need for the District to

remain fully remote as COVID-19 raged through the community. Dr. Cash stated “I’m not

sending our children and our staff into the mouth of the volcano…You’re going to have to

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override me on that. Not going to do it.” 16 Dr. Cash further stated “[t]o say [COVID-19] doesn’t

spread in schools, what does that mean? I don’t even understand what that means….If it is

raging and adults come to school, [COVID-19] is going to come to schools.” 17 An article

published in the Buffalo News on December 10, 2020, quoting Dr. Cash is attached as Exhibit

“K”.

56. Similarly, Dr. Kuo, the District’s Medical Director, reinforced the need for keeping

schools remote for students and faculty when he stated “I think as a community we need to

understand just how much virus is out there…. It is a lot and it is uncontrolled. It is also predicted

to get worse before it gets better.” 18 In response to a question from At-Large Board Member Ann

Rivera about what COVID-19 positive percentage rates would be low enough to bring back

students, Dr. Kuo responded “I think the positivity rate needs to come down significantly….I think

the positive rate needs to go well below 5%. That will give us an indication that we’re not seeing

uncontrolled spread.” 19 See Ex. “K”.

57. Upon information and belief, Erie County’s seven-day positivity percentage rate on

January 29, 2021 was 5%. 20

58. In a document Respondents published entitled “BPS Phased-In Re-Opening

Beginning February 1, 2021”, Dr. Kuo acknowledged that “current community spread of the

virus is at an all-time high and will imminently become worse” and that “Dr. Kuo recommends

remote learning until at least February 1, for consistency of learning.” Respondents further stated

16
https://buffalonews.com/news/local/education/too-much-community-spread-will-keep-buffalo-schools-closed-
through-january/article_e4fbf7f8-3ad9-11eb-80c0-7f36ad2d5ae0.html. Last accessed January 28, 2021. (emphasis
added).
17
Id.
18
Id.
19
Id. (emphasis added).
20
https://forward.ny.gov/percentage-positive-results-county-dashboard. Last viewed January 29, 2021.
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that “Virtual Learning is working as effectively as possible during this closure” noting that the

District has been recognized by the Commissioner of Education as a model for virtual learning

implementation and that the District’s “exceptional teaching corps is clocking maximum hours

with their students.” A copy of “BPS Phased-In Re-Opening Beginning February 1, 2021” is

attached hereto as Exhibit “L”. (emphasis in original).

59. On January 21, 2021, the Board unanimously voted to begin in-person instruction

again on February 1, 2021. Aside from political pressure to do so, there is no explanation for the

decision. A copy of the Board’s resolution is attached as Exhibit “M”.

f) BTF and its Members, Specifically Those At Significantly Increased Risk of Severe
Illness or Death if they Contract COVID-19, Would Suffer Irreparable Harm in the
Absence of a Temporary Restraining Order and Injunction in Aid of Arbitration

60. CBA Article VII requires the Board to make available to BTF “upon request, any

and all information, statistics, and records relevant to negotiations, or necessary for the proper

administration or enforcement of this Contract.” See Ex. “A”.

61. CBA Article XI(A) explicitly provides that “Teachers shall have safe and healthful

conditions under which to carry out their professional duties.” See Ex. “A”.

62. Requiring BTF members to return to school without meaningful opportunity to

obtain information to determine the health and safety of the District’s schools, which BTF is

expressly entitled to, would eviscerate BTF’s rights under Article VII, and needlessly put

thousands of people at risk.

63. Upon information and belief, BTF has hundreds of members which the Centers for

Disease Control consider “vulnerable” to severe illness or death if they were to contract the

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COVID-19 virus, due to underlying medical conditions. 21 Moreover, Respondents have made

clear that they will not grant any telework requests for BTF represented employees, regardless of

their health conditions and attendant risk caused by COVID-19 infection or whether the employee

performs any in-person instruction or student services. Respondents’ actions to put BTF’s most

vulnerable members who will be put at imminent risk of serious illness or death if they are forced

to return to an unsafe working environment would result in profound irreparable harm.

64. Illustrative of the irreparable harm posed by returning to an unsafe work

environment is BTF member Sarah L. Root. Ms. Root, who is a physical education teacher at the

Frank A. Sedita #30 School, is currently pregnant with her second child and is experiencing a high

risk pregnancy. See Root Aff. at ¶¶ 1-4. Ms. Root’s pregnancy was initially high risk because she

was pregnant with twins. See Root Aff. at ¶ 4. Tragically, Ms. Root miscarried at nineteen weeks

of pregnancy and lost one of her children. Id. Her pregnancy continues to be high risk because of

the miscarriage. Id. According to the CDC, pregnant women are at increased risk for severe illness

or death from COVID-19. 22 See Root Aff. at ¶ 5. Additionally, the CDC has stated there might

be an increased risk of adverse pregnancy outcomes, such as preterm birth, if Ms. Root were to

contract COVID-19 while pregnant. See Root Aff. at ¶¶ 6-7. Therefore, Ms. Root’s physicians

and midwife have recommended that Respondents accommodate her with a workspace sufficient

to maintain social distancing. See Root Aff. at ¶ 8. Ms. Root has not been informed about any

plan Respondents have for ensuring she can safely perform her job as a physical education teacher

if in-person instruction resumes on February 1, 2021. See Root Aff. at ¶¶ 10-16.

AS AND FOR A CAUSE OF ACTION

21
See generally, Centers for Disease Control and Prevention, COVID-19, People at Increased Risk and Other People
Who Need to Take Extra Precautions, available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/index.html. Last accessed January 28, 2021.
22
See Id.
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(Injunction in Aid of Arbitration)

65. Petitioner repeats and realleges the allegations of paragraphs 1 through 66.

66. The COVID-19 pandemic has created a health crisis unparalleled in modern times

and remains a clear and present risk for serious illness or death to teachers, students, their families,

and the community.

67. The facts and circumstances set forth herein demonstrate that Respondents have

failed to provide health and safety information requested in the October 14, 2020 information

demand.

68. Moreover, Respondents’ own statements demonstrate they believed in December

2020 that the Districts’ school buildings were unsafe for both students and teachers because of

COVID-19. Without explanation of the purported change in circumstances, Respondents have

now arbitrarily determined the District’s buildings are safe.

69. Respondents’ actions are subject to the grievance procedure.

70. BTF’s grievance is meritorious.

71. If Respondents proceed to disturb the status quo ante and compel BTF members to

return to work in person without permitting their designated employee representative to conduct a

thorough and meaningful review of the health and safety conditions of the District’s facilities, any

arbitration award would be ineffectual in remedying the contract violations stated herein.

Accordingly, BTF is entitled to an injunction in aid of arbitration under CPLR § 7502(c).

72. Under CPLR Article 63, BTF is likely to succeed on the merits of the underlying

grievance given Respondents’ actions. Moreover, the harm to BTF and its members is irreparable

as the potential serious illness or death from unsafe conditions cannot be undone or compensated

in monetary damages. Furthermore, the balance of the equities favor BTF, in that an injunction

would preserve the health and safety of BTF members and the community, whereas the

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corresponding harm to Respondents, to continue the same program of instruction that has been

going on since November 2020, is quite minimal.

WHEREFORE, Petitioner respectfully demands an order and judgment as follows

enjoining Respondents to preserve the status quo ante set forth in the Cash Memorandum during

the pendency of the grievance and for such other and further relief deemed just and proper.

Dated: New York, New York

January 29, 2021
ROBERT T. REILLY

By: /s/ Michael J. Del Piano

Michael J. Del Piano
Laura H. Delaney
Of Counsel
52 Broadway, 9th Floor
New York, New York 10004
Office – (212) 228-3382
Mobile – (518) 495-6249
michael.delpiano@nysut.org
laura.delaney@nysut.org

Attorneys for Petitioner

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VERIFICATION

STATE OF NEW YORK )

) ss.
COUNTY OF ERIE )

PHILIP RUMORE, being duly sworn, deposes and says:

I am the President of Buffalo Teachers Federation, Inc., the Petitioner herein. I have read
the foregoing petition and know the contents thereof to be true based on my own personal
knowledge, except for those allegations said to be upon information and belief, and as to those
allegations, I believe them to be true.

Philip Rumore

Sworn to before me
this 29th day of January, 2021

Notary Public

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VERIFICATION

STATE OF NEW YORK )

) ss.
COUNTY OF ERIE )

PHILIP RUMORE, sworn, deposes and says:

being duly

I am the President of Buffalo Teachers the Petitioner herein. I have read

Federation, Inc.,
patition thereof to be true based on own personal
the foregoing and know the contents my
except for those allegations said to be upon information and belief, and as to those
kñcwledge,
allegations, I believe them to be true.

umore
Philip

Sworn to before me

this 29th day of January, 2021

440tary Public

MICHAEL J. DELPlANO
Notary Public, State of New Yor(

Oua rf ed n
Commission Expires Feb. 25 , 20g2)

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