INDEX NO.

801275/2021
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/11/2021

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE

In the Matter of the Application of

BUFFALO TEACHERS FEDERATION, INC., Decision & Order

Petitioner,

For an Order and Judgment Pursuant to Article 75 Index #: 801275/2021

of the Civil Practice Law and Rules

against

BOARD OF EDUCATION OF THE CITY SCHOOL

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

Respondents.

OFFICE OF ROBERT T. REILLY

Attorneys for the Petitioner
Michael Del Piano, Esq.
Laura Delaney, Esq.

NATHANIEL J. KUZMA, ESQ.

Attorney for Respondents

Colaiacovo, J.

This proceeding was brought by way of a Petition filed pursuant to Article

75 of the Civil Practice Law and Rules wherein the Buffalo Teachers Federation

(hereinafter “Petitioner”) seeks an injunction in aid of arbitration against the

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Board of Education of the City School District of the City of Buffalo,

Superintendent Dr. Kriner Cash, and the City School District of the City of Buffalo

(hereinafter “Respondents”). More specifically, Petitioner alleges that re-

opening public schools to in-person learning, in the midst of a global pandemic,

is neither safe nor healthy. Petitioner maintains that by failing to provide

information supporting the re-opening plan, the Respondents, in implementing

its in-person plan, have violated the Collective Bargaining Agreement

(hereinafter “CBA”). See “Exhibit #1”. As such, because this is a grievable

dispute under the CBA, Petitioner insists that an injunction is necessary pending

arbitration. In opposition, Respondents insist that the Petitioner’s grievance is

not arbitrable and that the re-opening plan is both safe and proper under Federal

and State guidelines. Further, Respondents argue that Petitioner has been an

active participant in the re-opening process, has been provided information, and

that any alleged concerns about re-opening are speculative. The Court, having

denied Petitioner’s request for a temporary restraining order, held an

evidentiary hearing on the preliminary injunction on February 6, 2021. The

Court’s decision is as follows.

STATEMENT OF FACTS & PROCEDURAL HISTORY

In response to the COVID-19 pandemic, in March 2020, Respondents closed

all public schools to in-person learning and implemented a universal remote

learning platform for all students and faculty. Beginning in the summer of 2020,

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Respondents began planning to resume in-person learning at some point during

the 2020-2021 academic year. Committees and sub-committees were organized

to begin analyzing and coordinating the resumption of in-person schooling.

New York State issued directives permitting on-site learning on either a

full-day or a hybrid schedule for the 2020-2021 school year. The decision to

resume in-person learning was left to each individual school district.

Respondents elected not to implement in-person learning and instead continued

with remote education. However, Respondents required teachers and staff to

work two (2) days per week in school buildings while maintaining remote

education. Petitioner filed a grievance and commenced an action on August 31,

2020 against Respondents wherein it sought a temporary restraining order and

preliminary injunction to stop the District from implementing its plan. On

September 24, 2020, New York State Supreme Court Justice Frank A. Sedita, III

denied the request for both a temporary restraining order and preliminary

injunction. See Buffalo Teachers Federation, Inc. v. Board of Education, et al,

Index No. 809577/2020, September 24, 2020. Justice Sedita ultimately dismissed

the petition on the merits. See Order, granted October 7, 2020.

Thereafter, on October 14, 2020, Petitioner sent a demand to Respondents

requesting documentation about steps taken to ensure the health and safety of

its members upon the reopening of schools to in-person learning. See “Exhibit

#3”. A dialogue began between Petitioner and Respondents as to how those

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documents would be produced. However, on November 18, 2020, Respondents

directed that central office and building staff, which included teachers and other

related personnel, no longer needed to report two (2) days a week because of

the “Orange” COVID-19 designation. See “Exhibit #10”.

On December 22, 2020, Superintendent Cash sent Petitioner and its

members notice of the District’s intention to resume in-person learning on

February 1, 2021. See “Exhibit #46”. This resumption was not for all grades,

but limited to certain identified higher needs students, all Kindergarten through

second grade students, and all high school seniors. The remaining grades and

students would continue with remote learning.

Notwithstanding the planned re-opening, the dispute continued between

Petitioner and Respondents as to the document demand sent on October 14,

2020. See “Exhibit #3”. Petitioner filed an Improper Practice charge on January

26, 2021. See “Exhibit #6”. Petitioner also filed a grievance on January 22,

2021, wherein safety and health concerns were raised about the Respondents’

re-opening plan. See “Exhibit #7”. On January 28, 2021, the Petitioner

requested the Respondents permit their retained industrial hygienist to

“independently inspect BPS’s COVID related health and safety infrastructure.”

See “Exhibit #8”. That very same day, the Respondents met with Petitioner to

address its concerns about re-opening. Questions were answered and provided

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to the Petitioner at the meeting and subsequently thereafter. See “Exhibit #27”

and “Exhibit #28”.

Despite the ongoing discussions referenced above, Petitioner commenced

this proceeding on January 29, 2021 seeking, among other things, a temporary

restraining order preventing schools from re-opening as set forth above.

However, because the Petition was filed late on Friday, January 29, 2021, the

matter was not assigned to a Supreme Court Justice until the following Monday,

well after in-person classes resumed. Upon assignment to this IAS Part on

February 1, 2021, the Court considered argument from Petitioner and

Respondents on the temporary restraining order. After hearing argument, the

Court denied Petitioner’s request for temporary relief, but scheduled a fact-

finding hearing for February 5, 2021 to consider the request for a preliminary

injunction.

FINDINGS OF FACT

At the hearing, Petitioner and Respondents stipulated to Exhibits 1 – 114.

A list of those exhibits is annexed hereto and made a part hereof as “EXHIBIT A”.

The following testimony was heard:

Petitioner Witness – Karen Grover

Ms. Grover is a pre-Kindergarten teacher at the Stanley Makowski School

#99. She also is the Union Representative at the school. She stated that she was

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on the school’s building committee to address faculty issues. Ms. Grover testified

that she had been advised that a dead rodent had been found in a colleague’s

classroom. She stated that the rodent was subsequently removed by

maintenance. She observed that though her classroom was set up, there was

dust on the tables and it did not appear that the floors had been cleaned. Ms.

Grover testified that she did not observe anyone come into her classroom to

disinfect it, however, she did receive a supply of disinfecting wipes, hand

sanitizer, and face masks for the students from the District. Ms. Grover claimed

she thought she was to also receive a gown and gloves, but never did. She also

testified that the garbage in the faculty bathroom was overflowing and had not

been emptied. Ms. Grover did admit that it was later emptied on Wednesday.

She expressed that she had concerns about the building, but admitted her

concerns were speculative.

On cross-examination, Ms. Grover acknowledged that she never made any

requests for additional or specific personal protective equipment (hereinafter

“PPE”). Normally assigned eighteen (18) students in her classroom, Ms. Grover

testified that only four (4) students returned to the classroom following

resumption of in-person learning on February 1, 2021. She admitted that she

wore her mask, that the students in her classroom wore their masks, and that

everyone was distanced at least six (6) to eight (8) feet apart. She also

acknowledged that everyone’s temperature is taken when entering the building.

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She also admitted that faculty and students and/or parents were required to

complete daily health screening forms. See “Exhibit #42” and “Exhibit #43”.

Petitioner Witness – Molly McDermott

Ms. McDermott is a school psychologist at Bennet Park Montessori at School

#32. She testified that she has an auto-immune disease but “has no

comorbidities.” She noted that her elderly mother lives with her. Her mother

suffers from chronic obstructive pulmonary disease and dementia. Ms.

McDermott testified that she sought an “accommodation” from the District in

light of her mother’s condition. The District denied this accommodation and Ms.

McDermott reported to work on February 1. She testified that she did not see

any cleaning supplies when she entered her office, however, she eventually

received disinfectant wipes. Ms. McDermott testified that upon her return to

the building on February 1, she found a dead mouse in a trap that was in her

office. Around the trap was mouse feces. She speculated that the mouse had

been there for “some time.” She emailed her principal on February 1 about the

dead mouse and admitted it was removed the next day. Ms. McDermott

conceded that there had been an ongoing rodent problem in her building that

preexisted the COVID-19 pandemic. She was concerned that she was not working

in a safe environment and did not want to spread the coronavirus to her mother.

During her cross-examination, Ms. McDermott acknowledged that she was

not entitled to an accommodation under the CBA because her mother was not an
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employee of the District. She also conceded that she never raised any concerns

with missing PPE to human resources or her principal. She acknowledged that

no students ever come to her office. Instead, she goes to meet students in their

classrooms or a hallway where she can appropriately socially distance. She noted

that her interaction with students is normally limited to “a few minutes” at a

time.

Petitioner Witness – Mike Jeffers

Mr. Jeffers is a social studies teacher for seventh, eighth, and ninth graders

at School #131, which is located at the Tri-Main Center. Mr. Jeffers explained

that School #131 is considered an “alternative school” where the neediest of

students in the district attend. Many of the students have individual educational

plans (hereinafter “IEP”), 504 plans, and some are considered high-risk youths.

He is the Union delegate chair for School #131 and is a member of the buildings

committee. Previously, Mr. Jeffers worked at School #4 which closed due to

heating and HVAC issues. Thereafter, the school was moved to the Tri-Main

Building, which is a rehabilitated warehouse originally built by Henry Ford where

the Model-T Ford was built. Mr. Jeffers suffers from Multiple Sclerosis and has a

compromised immune system. His doctors requested an accommodation for Mr.

Jeffers. These accommodations included an N95 mask, face shield, and a

plexiglass barrier around his desk. According to Mr. Jeffers, his accommodation

request was denied. He described his classroom as filthy and opined that it had

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not been cleaned for some time. He discovered chipped paint, a broken seal on

a window, and, generally, insufficient heat. He also stated that he was given

one (1) tub of disinfectant wipes that was to be shared between six (6) teachers.

He did note that other than the disinfectant wipes, many of his concerns were

persistent problems that existed prior to the pandemic that the Respondents did

not address. His main concern was air flow and ventilation. He testified that he

is unable to open the windows for an extended period of time due to the

antiquated heating system in the building. He explained that he did not believe

the building to be safe.

On cross-examination, Mr. Jeffers noted that he only had three (3)

students in his classroom. He does wear two (2) masks when in the classroom.

He conceded that the windows in his classroom do open and close. He also stated

that he had compiled a list of complaints about the building and sent it to the

Buffalo Teachers Federation.

Petitioner Witness – Steven Fess

Mr. Fess is an Environmental Health and Safety Specialist and has been

employed in the field for nearly forty (40) years. He testified he is a certified

industrial hygienist, whose responsibility it is to ensure safety and compliance at

the workplace. He noted that he was a Safety Manager and Industrial Hygienist

at Xerox until 2016. See “Exhibit #114”. Mr. Fess testified that Petitioner

contemplated retaining him to complete an examination and evaluation of the

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buildings used by Respondents to ensure environmental and hygienic safety.

Though aware of the October 2020 document demand (“Exhibit #3”), he testified

that because that information was not provided, he could not reach an objective

conclusion on the safety condition of the schools. To do so, in addition to the

documentation requested, he would need to perform an aerosol analysis, which

included droplet examinations, as well as an investigation in the ductwork and

other infrastructure. He testified that such an investigation, which would

include a team of hygienists, would take two (2) to three (3) weeks to complete.

During cross-examination, the witness acknowledged that he was unsure if

the testing he suggested was necessary or required under the law or guidelines

in order to re-open schools. Further, he testified that he could not offer a

scientific opinion as to the safety of the buildings. Interestingly, notwithstanding

the lengthy delay in resuming in-person education, he admitted that he was not

contacted by the Petitioner until January 28, 2021. Mr. Fess acknowledged he

was being compensated $275 per hour for his testimony. He also conceded that

he was unaware if Respondents were under any obligation to allow a private

industrial hygienist to inspect their buildings prior to the resumption of classes.

Petitioner Witness – Matthew Kibler

Mr. Kibler is a Labor Relations Specialist employed by the New York State

United Teachers. He works exclusively with the Petitioner. It is his responsibility

to assist members with contractual disputes, dealing with administrators,

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grievances, and the filing of improper practice charges. He testified that he

participated in a meeting with the Respondents on January 28, 2021. The

meeting, which was conducted using an online audio and web conferencing

platform, included three (3) other labor relation specialists, BTF President Philip

Rumore, BTF Secretary Rebecca Pordum, BTF Treasurer Joseph Montante,

Buffalo School Board Counsel Nathaniel Kuzma, Buffalo School Board Chief of

Staff Dr. Darren Brown-Hall, Jamie Warren, Engineer Barry Kirker, and others.

The witness testified that the meeting lasted two (2) to three (3) hours. The

purpose of the meeting was to discuss the February 1, 2021 re-opening. During

the meeting, Petitioner was told by the Respondents that the classrooms would

be cleaned, what grade of disinfectant would be used, and the different forms

of PPE that was ordered by the District. The witness testified that the District

also explained the ventilation and air filtration management that would be used

during the re-opening phase. Logs would be kept of all infrastructural

implements used to facilitate the safety measures adopted by the Respondents.

During cross-examination, Mr. Kibler admitted that while he was basically

at the January 28, 2021 meeting to observe, he conceded that most of the

meeting was spent addressing the list of questions compiled by teachers and

staff. See “Exhibit #53”. He admitted to asking one (1) question about testing

and conceded that his question was sufficiently answered. He also acknowledged

receiving an email on January 7, 2021 that included an offer from Respondents

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to meet two (2) days a week to address re-opening questions. He stated that he

passed along the offer to President Rumore. However, he could not agree to the

suggested meetings as only officers could “bind” the BTF. He admitted that

although he frequently meets with members of the administration, he has not

participated in any of the re-opening meetings. Interestingly, as Petitioner

placed a high degree of importance on the October 2020 demand (“Exhibit #3”),

the witness testified that it was not brought up at the January 28, 2021 meeting.

While Mr. Kibler admitted that nearly all of the questions asked were answered,

President Rumore insisted that the answers be in writing.

Respondent Witness – Dr. Darren Brown-Hall

Dr. Brown-Hall is the Chief of Staff for the Buffalo Public Schools. He

testified that he chaired the Re-Opening Meetings for the District and

participated in all public meetings and teachers’ meetings. Dr. Brown-Hall

explained that the New York State Department of Health and Department of

Education provided guidance to schools on how to safely and responsibly re-open.

See “Exhibit #50”, “Exhibit #51”, and “Exhibit #52”. The witness explained the

numerous requirements that needed to be satisfied to re-open. Among those

requirements was that each district was required to develop its own plan and

submit it to the State Department of Health and Department of Education for

approval. The plan, according to Dr. Brown-Hall, needed to address capacity,

social distancing, PPE and face coverings, hygiene, maintenance, transportation,

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food services, and how to best address the vulnerable population in schools.

Each plan was also to include protocols as to how the District would screen,

administer testing, and adopt containment measures. According to Dr. Brown-

Hall, New York State guidelines required each plan to be formulated using a

collective approach. Meetings organized to adopt a re-opening safety plan

needed to include stakeholders. Those stakeholders included teachers,

administrators, aides, central office staff, assistant superintendents, and

parents’ groups. Further, public meetings were required before a plan could be

submitted for approval. See generally “Exhibit #50”, “Exhibit #51”, and “Exhibit

#52”.

In order to initiate the process, Dr. Brown-Hall testified that he asked

Petitioner to provide members that would serve on the re-opening committees.

President Rumore, according to Dr. Brown-Hall, sent a memorandum to the

Superintendent advising of his selected members. See “Exhibit #34”. These

union members were placed on the committee and several of its sub-

committees.

Notwithstanding the cessation of in-person schooling, the re-opening

committee continued to meet in September, October, November, and

December. According to Dr. Brown-Hall, the focus of those meetings was to

resume in-person schooling as soon as possible and to complete a plan consistent

with New York State guidelines. Dr. Brown-Hall explained that there were seven

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(7) meetings of the re-opening committee held to answer any questions from

teachers.

All of the re-opening plans developed were available to the public, the

Petitioner, and its members on the District’s web site. The plans were also

constantly updated. Although not required by New York State, the District

required each school to develop re-opening plans. These plans were also listed

on the District web site. See “Exhibits ##’s 54-113”. Further, Frequently Asked

Questions (a/k/a FAQ’s) were also posted on the District’s web site. The witness

testified that neither the State Department of Health nor Department of

Education refused or rejected the Respondents’ plan.

Dr. Brown Hall stressed that all of the documentation developed during

the re-opening plan process was shared with the Petitioner. As for the January

28, 2021 meeting, the witness observed that every question was answered and

he felt that the meeting “went well”.

As for compliance protocols, although COVID-19 testing was no longer

required, the witness maintained that the District intended to continue testing

the students and staff on a 30% basis. Masks are required to be worn, except

when eating or when pre-Kindergarten students or napping. If students can not

wear masks, they need to wear a shield. If they can do neither, they are required

to do remote learning. Dr. Brown-Hall noted that there is a strategic plan to

increase in-person learning through March.

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On cross-examination, Dr. Brown-Hall acknowledged that school districts

are not required to have in-person learning. Instead, he reiterated that this

decision was left up to each individual school district. However, the witness

noted that since September, it was the District’s plan to resume in-person

learning as soon as it was safe to do so. Dr. Brown-Hall acknowledged that as of

August 2020 and September 2020, it was deemed “unsafe” to resume in-person

learning. However, the witness clarified that this was due to issues concerning

community spread and not anything particular to any school building.

Respondents Witness – Dr. Kriner Cash

Dr. Kriner Cash is the Superintendent of the Buffalo Public Schools and has

served in that role for the past five and one-half (5 ½) years. Dr. Cash noted

that of the forty-two (42) years he has spent in education, thirty-eight years have

been in leadership roles. Dr. Cash testified that the District began working

during the summer to build a plan to re-open schools for the fall term. On June

9, 2020, Dr. Cash formed a Health Advisory Council that would advise the

Superintendent as to the unfolding virus. The Health Advisory Council included

Dr. Dennis Kuo, a pediatrician, Dr. Oscar Gomez, an epidemiologist, and Dr.

Willie Underwood, a urologist. See “Exhibit #32”. Dr. Cash insisted that it was

important to let the public know what went into his decision to re-open schools

to in-person learning.

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Dr. Cash testified that at the beginning of the school year it was not safe

to resume in-person learning. He noted that he wanted to wait until the end of

the first marking period, November 13th, to make any recommendations to the

Board of Education on the reopening of schools. The witness testified to a

“toggle effect”, which he used to describe his observations when other schools

opened only to then close after a rash of infections. Dr. Cash stated that this

“toggle effect” would be disruptive to children if the District opened too hastily.

On December 9, 2020, Dr. Cash referred to the COVID-19 crisis as a

“volcano”. During a Board of Education Work Session, Dr. Cash stated that he

was not prepared to send “our children and our staff into the mouth of a

volcano.” See “Exhibit #48”. Dr. Cash explained that this comment was made

in the context of community spread caused by the surge following the

Thanksgiving and Christmas holidays. Dr. Cash insisted that the decision to re-

open was “always about the virus in the community.” Dr. Cash never wavered,

though, about the safety of the buildings. He explained that twenty-eight (28)

of those buildings were already open to the community to provide meals to

students, as well as open to staff. Dr. Cash saw no conflict in his “volcano”

comment made on December 9, 2020 with his memorandum to staff announcing

the re-opening of schools made on December 22, 2020. See “Exhibit #46”. Dr.

Cash testified that Dr. Kuo, the District’s Medical Director, “came up” with the

February 1, 2021 re-opening date. Dr. Cash testified that the Buffalo Board of

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Education unanimously approved the re-opening plan at its January 20, 2021

meeting. By that meeting, the Superintendent felt confident it was safe to re-

open schools.

Dr. Cash had a direct role in the inspection of school buildings. He

described this process colorfully as “expect what you inspect”. Dr. Cash

inspected several schools and was satisfied with what he observed. He noted

that all of the required New York State guidelines were satisfied. The schools

had temperature scanners, temperature wands, health forms for screening, and

PPE. He found the buildings to be clean and with enough space for appropriate

social distancing to occur. Dr. Cash examined the cabinets where the PPE was

stored and opined that each school was sufficiently stocked with PPE. The

Superintendent also explained that members of his “cabinet” were assigned

other schools to inspect to ensure compliance with New York State guidelines.

Ultimately, each school that was to re-open on February 1, 2021 was physically

inspected.

Prior to the re-opening on February 1, 2021, Dr. Cash invited President

Rumore to accompany him on his tours of the buildings. President Rumore

declined to attend the inspections, however, he provided Dr. Cash a list of

deficiencies in the buildings. One in particular occurred at the DaVinci High

School, which Dr. Cash personally addressed. He noted that he was committed

to ensuring a “unified” approach to the re-opening and did not wish to be at odds

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with the Union. However, he noted that President Rumore was unwilling to

accompany him or otherwise participate in the inspections.

During cross-examination, Dr. Cash explained that the majority of students

will still be learning remotely under the re-opening plan. As to each individual

school’s re-opening plan, Dr. Cash could not testify with any certainty if those

plans were submitted to the State for approval. At the same time, the witness

indicated that he did not believe that they needed to be. The Superintendent

believed that air quality tests were done and confidently expressed his feeling

that all of the buildings were safe for teachers and students. As to the concerns

raised by the Petitioner’s witnesses, he testified that he was unaware of those

specific complaints. He testified that he expected all staff to abide by New York

State and CDC guidelines to keep facilities clean.

Respondents Witness – Dr. Dennis Kuo

Dr. Kuo is a Pediatrician employed by UBMD as Chief of the General

Pediatric Division and an Associate Professor at the University at Buffalo Medical

School. See “Exhibit #16”. Dr. Kuo testified that Respondents contacted him

one (1) year ago to advise as to the effects of COVID-19 on the Buffalo Public

Schools. Subsequently, he was retained as the District’s Medical Director. Dr.

Kuo is in regular contact with the Superintendent, to whom he provides

guidance.

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Dr. Kuo testified that he recommended to Dr. Cash to begin the school

year remotely. This delay, according to Dr. Kuo, was based on the likelihood of

community spread. Because there was insufficient rapid testing and tracing

capabilities to support the Buffalo Public Schools, Dr. Kuo thought it was unwise

to open such a large school district at that time.

With respect to re-opening schools, Dr. Kuo described it as an evolving and

“multi-layered” process that was influenced by trends in community

transmission, the engineering of buildings, spacing, and availability of PPE. Dr.

Kuo referenced the American Academy of Pediatrics guidance for safe schools.

See “Exhibit #18”. He indicated that these guidelines were constantly revised

and proved useful in determining an appropriate date to re-open.

Dr. Kuo testified to access he had to “internal information” from Erie

County, Kaleida Health, and the University at Buffalo, which continued to

influence his decisions. He observed infection rate numbers increasing in

October which subsequently increased hospitalization rates two (2) weeks later.

Dr. Kuo felt that continued spikes after the Thanksgiving and Christmas holidays

would render it ill-advised to open the schools. However, in December and

January, he noted a decline in hospitalization rates and the over-all infection

rate fell from 8% to 5%. Confronted with a comment referenced in the Buffalo

News that “ratings would need to be below 5% [before in-person schooling could

resume]”, Dr. Kuo testified that the quote was taken out of context. See “Exhibit

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#48”. Dr. Kuo stated that the CDC does not have a specific percentage in mind

relative to the re-opening of schools. Instead, the percentage depends more on

the amount of testing deployed. For instance, 5% in New York is different than

5% in a different state, according to Dr. Kuo. Dr. Kuo noted that 5% is a good

starting point when considering in-person schooling.

Dr. Kuo emphasized that “there was no substitute for in-person learning.”

This is especially true for younger children. According to Dr. Kuo, significant

medical literature explores the crucial need for in-person learning at early

grades for minor children. This was a factor that could not be overlooked by the

District when prioritizing the re-opening plan.

Dr. Kuo testified that he visited School #53 to inspect the safety of the

building. He testified that he focused on the density and flow of the school

building. He noted that he observed “visual cues” to direct traffic and similar

cues for proper spacing and sanitizing stations. Based on his own examination

and reports resulting from similar visits to other schools, he opined that the

schools were ready to welcome in-person learning, albeit on a limited basis.

Concerning the issues raised by Petitioner’s witnesses, he testified that he

was unsure if the coronavirus could be transmitted by mice. As for transmission

from surfaces, Dr. Kuo testified that there are different ways the virus can be

cultured or transmitted. Dr. Kuo noted that the literature indicates that the

virus cannot be significantly transmitted from solid surfaces. Instead, the main
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mode of transportation of the virus is from respiratory droplets. The most

efficient way to prevent the transmission of the virus is distancing and proper

masking.

During cross-examination, Dr. Kuo indicated that he presumed that schools

would be observing New York State and CDC guidelines. As for the distribution

of PPE, Dr. Kuo noted that some staff needed more PPE than others. Dr. Kuo did

not believe that the lack of waxed floors, wiped desks, mouse feces, in and of

themselves, were a basis to stop in-person learning.

Respondents Witness – James Weimer

Mr. Weimer is the Chief Operating Officer for the Respondent. Having

been in education for nearly thirty-one (31) years as a teacher, project

administrator, principal, and assistant superintendent, he is now responsible for

building and plant operations. The witness testified that he is familiar with the

re-opening plan as he is responsible for purchasing the required PPE. Mr. Weimer

testified that the District has spent nearly $2 million on PPE. He has personally

visited more than forty (40) buildings to determine if the PPE had been delivered

and is in use. If there are shortages of PPE, school principals are to advise him.

Weimer testified that he sent guidance to each school regarding the

process for cleaning. Barry Kirker, Director of Plan Operations and Custodial

Services, is responsible for custodial inspection. It is his responsibility to respond

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immediately to any issues or concerns raised about the sanitation of each school.

According to his testimony, Mr. Weimer has not been advised of any issues prior

to the re-opening. He testified that he believes each building is clean and

appropriate pursuant to State and Federal guidelines.

On cross-examination, Mr. Weimer conceded that there are several

buildings that are without Engineers due to retirements. However, he

maintained that Engineers from other buildings cover the school buildings that

do not have a permanent Engineer. Mr. Weimer testified that he certainly

welcomed input from teachers and staff about sanitation issues. He also testified

that cleaning logs are maintained to record when certain tasks are done, such as

high-top surface cleaning, floor sweeping, bathroom cleaning, and other hygienic

measures. He noted that each building has undergone a “deep cleaning” in order

to maintain the highest of standards. He maintained that any room or surface

utilized by staff or students is to be cleaned. Further, the witness testified that

each school is equipped with electro-static sprayers to disinfect rooms. Each

building has one sprayer, however, some buildings have two. Mr. Weimer also

testified about the efficiency of the filtration systems and the MERV filters used.

The witness insisted that the filtration systems are checked three (3) times each

week for obstruction. Logs are kept to record compliance and maintenance of

the filtration systems.

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Respondents Witness – Juan Perez

Juan Perez is an Associate Architect with the Buffalo Public Schools. He

testified that the District retained the Cannon Architecture and Engineering firm

(hereinafter “Cannon”) to develop a strategic master plan as to how to best

space the student population in each school to maximize social distancing.

According to Mr. Perez, Cannon has institutional knowledge of each school

building because the firm was involved in the $1.3 billion construction project of

the Buffalo Public Schools within the last decade. Using that institutional

knowledge, Cannon developed a plan to ensure appropriate social distancing

within each school building. Instead of the six (6) foot social distancing

recommended by New York State, Cannon’s plan employed an eight (8) foot

distancing plan for students and staff. He testified that he was not involved in

the airflow and ventilation aspects of the re-opening plan. However, he did note

that the reconstruction project that was undertaken within the last decade did

not just make cosmetic changes, but major infrastructural improvements that

would assist with better flow and ventilation.

During cross-examination, the witness testified that he was unaware of the

Petitioner’s request for documentation concerning the safety measures

employed by the District in each school building.

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CONCLUSIONS OF LAW

Legal Standard

It is well understood that the party seeking a preliminary injunction must

demonstrate by clear and convincing evidence a likelihood of ultimate success

on the merits, irreparable injury if the injunction were not granted, and a

balancing of equities in favor of granting the injunction. Nobu Next Door, LLC

v. Fine Arts Hous., Inc., 4 N.Y.3d 839 (2005); Aetna Ins. Co. v. Capasso, 75 N.Y.2d

860 (1990). If any one of these three requirements are not satisfied, the motion

must be denied. Faberge Intern., Inc. v. Di Pino, 109 A.D.2d 235 (1st Dep't. 1985).

As such, absent extraordinary circumstances, a preliminary injunction will not

issue where to do so would grant the movant the ultimate relief sought in the

complaint. Reichman v. Reichman, 88 A.D.3d 680, (2nd Dep’t. 2011); SHS Baisley,

LLC v. Res Land, Inc., 18 A.D.3d 727 (2nd Dep’t. 2005). In addition, preliminary

injunctions should not be granted absent extraordinary or unique circumstances

or where the final judgment may otherwise fail to afford complete relief. SHS

Baisley, LLC v. Res Land, Inc., 18 A.D.3d at 727, supra. However, the decision

whether to grant or deny a preliminary injunction is within the sound discretion

of the Court. Masjid Usman, Inc. v. Beech 140, LLC, 68 A.D.3d 942 (2nd Dep’t.

2009).

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Credibility

It is well established that the “trial court, which had the opportunity to

view the demeanor of the witnesses, [is] in the best position to gauge their

credibility.” Massirman v. Massirman, 78 A.D.3d 1021 (2nd Dep’t. 2010). It is

equally established that “[i]n a non-jury trial, evaluating the credibility of the

respective witnesses and determining which of the proffered items of evidence

are most credible are matters committed to the trial court’s sound discretion.”

Goldstein v. Guida, 74 A.D.3d 1143 (2nd Dep’t. 2010). Thus, the trial court’s

assessment of the credibility of witnesses and evidence is afforded great weight

on appeal. See Alper v. Alper, 77 A.D.3d 694 (2nd Dep’t. 2010).

The Court found each witness to be credible in most instances. Ms. Grover,

Ms. McDermott, and Mr. Jeffers, all teachers and support staff, genuinely

testified that they believed the conditions at their schools were less than ideal.

Ms. Grover, a teacher who testified about garbage removal and dusty floors,

acknowledged that many of her health and safety concerns were speculative.

Ms. McDermott, a school psychologist, testified that she did not believe the

building she worked in was a safe environment. However, she acknowledged

that, other than the dead mouse, she did not raise other health concerns with

human resources. Mr. Jeffers maintained, more or less, that nothing done by

the District, whether it was providing PPE or maintaining adequate air flow and
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ventilation, was safe for students or staff. This strained credulity at times.

Grover, McDermott, and Jeffers all testified to universal mask wearing,

appropriate social distancing, and the availability of PPE. While PPE was not as

readily available on the very first day, each witness acknowledged it was

ultimately provided whether they asked for it or not.

Mr. Fess, a certified industrial hygienist, was certainly an expert in his

field. However, whether his services were ultimately needed or contemplated

in a serious fashion, remains questionable. Mr. Fess acknowledged that he was

only contacted days before the February 1, 2021 reopening. He even

acknowledged not being retained, instead only being compensated on an hourly

basis for his testimony. Certainly, the Court would have placed more weight on

the concerns raised by the Petitioner had it retained the services of this expert

closer to the Respondents’ December 22, 2020 notice to resume in-person

learning rather than only days before the re-opening actually occurred. Further,

it remains unclear whether this was a serious overture, as the Court can find no

controlling legal authority that would require Respondents to submit to some

form of “independent” testing and analysis from a Union expert before they, in

this case, re-opened schools.

Mr. Kibler, a labor relations specialist, did not recall many crucial details

from meetings that he participated in. He could not recall whether something

as critical as the October 2020 demand for information, which Petitioner

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repeatedly mentioned throughout the hearing, was even discussed at the January

28, 2021 meeting. What seemed to be a sine qua non for Petitioner, the demand

did not make a lasting impression on its labor relations specialist nor was it

crucial enough to raise during its penultimate meeting before re-opening. Mr.

Kibler acknowledged the methodical steps taken by the District to prepare for

in-person learning and that all questions asked were answered by Respondents

at its January 28, 2021 meeting.

The Court found Dr. Darren Brown-Hall to be an extremely credible

witness. Contrary to Petitioner’s insinuations that the District pulled its re-

opening plan out of thin air, Dr. Brown-Hall brought data and information that

satisfied any concerns as to whether Respondents hastily or thoughtlessly

reached its decision. Dr. Brown-Hall thoroughly described the process that began

in the summer of 2020 to re-open schools to in-person learning. He testified

about organizing committees and sub-committees that met on a regular basis to

discuss and plan the re-opening that included members of the public and the

Union. Dr. Brown-Hall communicated in a very thoughtful manner how the

District complied with all requisite State and Federal guidelines to re-open to in-

person learning.

Dr. Cash testified comprehensively about the measures taken by the

District to prepare for in-person learning. His decision to empanel a Health

Advisory Task Force, staffed with experts, not policy makers, was an important

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step taken by the Respondents to demonstrate their commitment to the health

and safety of the students and teachers. Further, his outreach to the Union and

willingness to work together belied the Petitioner’s effort to portray the

District’s motives as insincere.

Dr. Kuo, an expert in the field of pediatric medicine, provided crucial

context to what formed the District’s decision to re-open. He pointed to data

and research that corroborated his recommendations to the District to continue

remote learning in the fall and ultimately to re-open in February. His reliance

on the American Academy of Pediatrics and the Philadelphia Children’s Hospital

study supported his recommendation that re-opening schools would be safe for

children and staff while also complying with State and CDC guidelines. Dr. Kuo

methodically explained modes of transmission while at the same time

understanding “spikes” in infections and hospitalizations that guided the

District’s decision to delay opening until February.

Jim Weimer, the Chief Operating Officer, and Juan Perez, the associate

architect, both testified to the steps taken by Respondents to address issues of

safety. Whether addressing maintenance, cleanliness, providing PPE, or

developing appropriate spacing protocols to ensure proper social distancing, both

witnesses credibly explained the thorough steps required of them by the

Respondents to be ready to re-open.

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Decision

The question that is before the Court is whether the Petitioner is entitled

to a preliminary injunction in the context of a CPLR Article 75 petition seeking

to compel arbitration. The Court finds it is not.

Petitioner contends the issue to re-open schools to in-person learning is a

proper grievance that is subject to arbitration. By not providing the information

it sought pursuant to its October 2020 demand and by failing to provide a safe

work environment for its members, Petitioner insists the Respondents have

violated Articles VII and XI of the CBA. As such, Petitioner maintains it is a proper

grievance subject to arbitration. To that end, in order to receive a preliminary

injunction, Petitioner must demonstrate the likelihood of success on the merits,

irreparable injury, and a balancing of the equities in favor of granting the

preliminary injunction. Family-Friendly Media, Inc. v. Recorder Television

Network, 74 A.D.3d 738 (2nd Dep’t. 2010). Here, because Petitioner fails to meet

the very first basic requirement, it is not entitled to injunctive relief.

As held in Buffalo Teachers Federation, Inc. v. Board of Education, et al,

Index No. 809577/2020, what Petitioner alleges is not a proper grievance subject

to arbitration. The New York Court of Appeals established a two (2) step test to

determine whether a grievance is arbitrable. See generally Matter of City of

Johnstown [Johnstown Police Benevolent Assn.], 99 N.Y.2d 273 (2002). First, the

Court must determine whether there is any statutory, constitutional or public

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policy prohibition against arbitration of the grievance." Matter of Onondaga

Community Coll. v. Professional Adm'rs of Onondaga Community Coll. Fedn. of

Teachers & Adm'rs, 162 A.D.3d 1711 (4th Dep’t. 2018) citing Matter of Mariano v.

Town of Orchard Park, 92 A.D.3d 1232 (4th Dep’t. 2012). "If the court determines

that there is no such prohibition and thus that the parties have the authority to

arbitrate the grievance, it proceeds to the second step, in which it must

determine whether that authority was in fact exercised, i.e., whether the CBA

demonstrates that the parties agreed to refer this type of dispute to arbitration."

Id. citing Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. [Ken-Ton

Sch. Empls. Assn.], 110 A.D.3d 1494 (4th Dep’t. 2013).

It is inconceivable that an arbitrator should decide such a monumental

question that affects the general public. While Petitioner contends that the

decision to return teachers to in-person learning affects its membership, it

affects a larger population than just Petitioner. Instead, as Respondents

correctly note, it is the responsibility of the Governor, the Boards of Health

and/or Education, and individual School Districts to determine crucial issues of

public policy, such as the education of children, in the midst of a global

pandemic. And while that authority is certainly not absolute, in this context,

the Court finds there exists a public policy prohibition to the arbitration

requested here. Granting a preliminary injunction would certainly deprive the

State from exercising supervision of a constitutionally required obligation – to

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provide an education to children.1 As such, the issue to re-open schools to in-

person learning is not subject to arbitration.

Notwithstanding the question of arbitration, Petitioner has nonetheless

failed to demonstrate the need for injunctive relief. Petitioner has not shown a

likelihood of success on the merits, irreparable harm nor the balancing of

equities in its favor. While the Court does not dismiss out of hand the concerns

raised by Petitioner as reflected in the testimony, they, in and of themselves,

do not rise to the level of enjoining a school district from making a decision to

proceed with in-person learning. The speculative nature of the witnesses’

concerns, unsupported by science or data, does not justify closing schools nor

does it establish a safety risk. Further, the question of whether a demand for

information was adequately responded to does not rise to the gravity of granting

the relief Petitioners herein seek.

To the contrary, the record supports the proactive and protective steps

the Respondents took to ensure that school buildings were safe for students and

faculty. The testimony demonstrates that the Respondents, beginning in the

summer, began to prepare for in-person learning. This process included

administrative staff as well as members of the BTF. All interested parties,

including the District, the Union, and the public, had a substantive say in how

schools would open. Further, as required by the State Department of Health,

1 N.Y. Const. art XI, §1.

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the Respondents submitted a plan to re-open. No testimony or evidence was

received that would show that plan was rejected by the State. Also, there was

no evidence that the Plan did not comply with the State’s guidelines. The Plan,

as well as those for each school, was approved and posted on the District’s

website for all to see. The intention to re-open was not a surprise to Petitioner.

Far from it, as Petitioner was involved in the formation of the plan it now

criticizes.

Further, the plan to re-open was guided by medical experts. The District,

which was the only one in the State yet to re-open to in-person learning prior to

February 1, committed itself to following a plan that professionals provided

which guided the Superintendent to, at first, continue remote learning in the

Fall and ultimately in-person learning in February 2021. Dr. Kuo dispassionately

explained the methodology and factors he considered, as Medical Director, to

recommend re-opening. Those recommendations, in concert with the social

distancing master plan completed by Cannon, the purchase and distribution of

$2 million of PPE, as well as extensive cleaning, supported re-opening on a

limited basis for Kindergarten through Second grade, Seniors, and the most

educationally challenged.

The Petitioner’s objections, including the failure to provide

documentation, general uncleanliness, or refusing to allow its industrial

hygienist to inspect the school buildings, are unavailing. Respondents maintain

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that the documents at the heart of Petitioner’s grievance were provided, albeit

delayed. Respondents insist that during their January 28, 2021 meeting they

provided a document that answered all submitted questions. There was little

more Respondents could do to forestall the Petitioner’s seemingly

predetermined course to oppose any re-opening to in-person learning.

As Dr. Kuo noted, and the supporting medical research shows, with proper

precautions taken, such as cleaning, ventilation, spacing, and mask wearing,

transmission of the virus is significantly decreased at schools. Recently, three

(3) CDC researchers in the Journal of American Medical Associates (hereinafter

“JAMA”) wrote,

“…the preponderance of available evidence from the fall school

semester has been reassuring … as many schools have reopened for
in-person instruction in some parts of the US as well as
internationally … there has been little evidence that schools have
contributed meaningfully to increased community transmission.”2

Clearly, empirical information does not substantiate Petitioner’s concerns or

support its argument for a preliminary injunction.

Because Petitioner has failed to meet its burden to demonstrate that it is

likely to succeed on the merits as to the arbitration or that there exists

2 Data and Policy to Guide Opening Schools Safely to Limit the Spread of SARS-CoV-2 Infection, by
Margaret A. Honein, PhD; Lisa C. Barrios, DrPH; John T. Brooks, MD, JAMA, January 26, 2021. See
https://jamanetwork.com/journals/jama/fullarticle/2775875

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irreparable harm or a balancing of equities in its favor should in-person schooling

resume, the relief requested must be denied. The totality of the evidence does

not justify injunctive relief. Instead, Respondents have satisfied all CDC and

State guidelines to re-open. Further, the proactive steps taken by Respondents

adequately address recommendations made by clinicians that advise in-person

learning can occur without threat of significant transmission of the virus. See

generally “Exhibit #18”. As such, Petitioner’s request for a preliminary

injunction is hereby DENIED.

The Court hereby schedules a further conference to discuss the merits of

the Petition now that the preliminary injunction has been denied. Counsel shall

be available on March 9, 2021 at 2:00 p.m.

This shall constitute the Decision and Order of this Court.

SO ORDERED,

______________________________
Hon. Emilio Colaiacovo, J.S.C.

ENTER
Buffalo, New York
February 11, 2021

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EXHIBIT A

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Court’s Exhibits
Petitioner Exhibits
1 BTF CBA
2 BPS Remote Reopening Plan
3 2020-10-14 Information Demand
4 Notice of Claim
5 Mueller and Strom E-mail Chain
6 Improper Practice Charge
7 Grievance
8 Rumore BTF Industrial Hygienist Inspection Request
9 Amended Grievance
10 Cash Memorandum
11 2020-12-10 Buffalo News Article
12 BPS Phased Reopening Plan 2021-02-01
13 Board of Education Reopening Resolution 20211-01-20
14 30 Day Notice
15 Fess Report
Respondent Exhibits
16 Kuo CV (Feb. 2021)
17 Viewpoint: Data and Policy to Guide Opening Schools Safely to Limit the
Spread of SARS-CoV-2 Infection
18 American Academy of Pediatrics: COVID-19 Guidance for Safe Schools
19 PolicyLab, Policy Review: Evidence and Guidance for In-Person Schooling
during the COVID-19 Pandemic
20 CDC: Indicators for Dynamic School Decision-Making
21 Erie County Department of Health: Covid Data (Confirmed cases by age and
gender; diagnostic testing summary last 6 weeks; fatalities; zip code data)
22 ECDOH Data: Erie County Hospitalization Data
23 ECDOH Presentation to Buffalo Public Schools: COVID-19 and Returning to
School
24 Karl Yu Data Graphs
25 Special Education Re-Opening Protocols (Jan. 2021)
26 Return to In-Person Instruction FAQ
27 Questions from Principal’s Meetings with Answers
28 FAQ and Call Responses
29 Back to Buildings Checklist
30 Buffalo Public Schools 2020-2021 Reopening Plan Following Period of
Extended Closure
31 Health and Safety
32 Buffalo Public Schools Superintendent’s Health Advisory Council Member
Biographies
33 Reopening Subcommittees
34 Memo from Rumore to Cash: Teachers to Serve on Re-Opening Committee
35 Reopening Committee Meeting Minutes: October 19, 2020

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36 Reopening Committee Meeting Minutes: November 2, 2020

37 Reopening Committee Meeting Minutes: December 14, 2020
38 NYS Checklist for Pre-K to Grade 12 School Reopening Plans
39 NYS Guidelines for In-Person Instruction at Pre-K to Grade 12 Schools
40 Isolation Room Flowchart
41 Isolation Room Protocols
42 COVID-19 Daily Health Screening Form (Staff)
43 COVID-19 Daily Health Screening Form for Students
44 Dr. Cash Message of January 28, 2021
45 Kriner Cash Biography
46 Dr. Cash Letter of December 22, 2020 (30 Day Notice)
47 Dr. Cash’s Weekly Brief of January 29, 2021
48 The Buffalo News: “’Too much community spread’ keeping city schools
closed”
49 Kriner Cash, Ed.D. Comprehensive C.V.
50 NYS DOH Guidance
51 NYS-DOH Supplemental Guidance PreK-12
52 NYSED Recovering, Rebuilding, and Renewing: The Spirit of New York’s
Schools, Reopening Guidance
53 Safety Concerns Addressed (Health and Safety, Accommodations, Speech
Therapy, Miscellaneous)
54 003 D’Youville Porter Campus Reopening Plan
55 006 Buffalo Elementary School of Technology Reopening Plan
56 017 E.C.C. Reopening Plan
57 018 Dr. Antonia Pantoja Reopening Plan
58 019 Native American Magnet Reopening Plan
59 027 Hillery Park Elementary Reopening Plan
60 030 Frank A. Sedita Elementary Reopening Plan
61 031 Harriet Ross Tubman Reopening Plan
62 032 Bennett Park Montessori Reopening Plan
63 033 Bilingual Center Reopening Plan
64 037 Marva J. Daniel Futures Preparatory School Reopening Plan
65 042 Occupational Training Center Reopening Plan
66 043 Lovejoy Discovery School Reopening Plan
67 045 International School Reopening Plan
68 048 School 48 at MLK Reopening Plan
69 050 North Park Community School Reopening Plan
70 053 Community School Reopening Plan
71 054 Dr. George Blackman E.C.C. Reopening Plan
72 059 Dr. Charles R. Drew Science Magnet Reopening Plan
73 061 Arthur O. Eve School of Distinction Reopening Plan
74 064 Frederick Law Olmsted Reopening Plan
75 065 Roosevelt E.C.C. Reopening Plan
76 067 Discovery School Reopening Plan

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77 069 Houghton Academy Reopening Plan

78 072 Lorraine Elementary Reopening Plan
79 074 Hamlin Park Claude & Ouida Clapp Academy Reopening Plan
80 076 Herman Badillo Bilingual Academy Reopening Plan
81 079 Pfc. William J. Grabiarz Reopening Plan
82 080 Highgate Heights Reopening Plan
83 081 School 81 Reopening Plan
84 082 E.C.C. Reopening Plan
85 084 Erie County Health Care Center for Children Reopening Plan
86 089 Dr. Lydia T. Wright School of Excellence Reopening Plan
87 092 B.U.I.L.D. Community School Reopening Plan
88 093 Southside Elementary Reopening Plan
89 094 West Hertel Elementary Reopening Plan
90 095 Waterfront Elementary Reopening Plan
91 097 Harvey Austin School Reopening Plan
92 099 Stanley Makowski E.C.C. Reopening Plan
93 131 The Academy School #131 @ 4 Reopening Plan
94 156 Frederick Law Olmsted Reopening Plan
95 192 Buffalo Academy for Visual & Performing Arts Reopening Plan
96 195 City Honors School at Fosdick Masten Park Reopening Plan
97 196 Math, Science & Tech Preparatory School @39 Reopening Plan (5-8)
98 197 Math, Science & Tech Preparatory Reopening Plan (9-12)
99 198 International Preparatory School #198 @202 Reopening Plan
100 206 South Park Reopening Plan
101 207 Lafayette International Reopening Plan
102 208 Riverside Academy Reopening Plan
103 212 Leonardo da Vinci Reopening Plan
104 301 Burgard Reopening Plan
105 302 Emerson School of Hospitality Reopening Plan
106 304 Hutchinson Central Technical Reopening Plan
107 305 McKinley Reopening Plan
108 309 East Community High School Reopening Plan
109 355 The New Buffalo School of Culinary Art & Hospitality Management
Reopening Plan
110 357, 358, 359, 360, 361, 367 Pathways Academy Reopening Plan
111 363 Lewis J. Bennett High School of Innovative Technology Reopening Plan
112 366 Research Laboratory High School for Bioinformatics & Life Sciences @
Bennett Reopening Plan
113 415 Middle Early College Reopening Plan
114 C.V. Steven Fess, CSP, CIH, SMS, FAIHA

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