New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of James Cotter v Board of Education of Garden City Union Free School District Board of Education

Back in 2008, I wrote about a Nassau County Supreme Court Decision (J. Feinman) which held that the Garden City School District did not have to defend or indemnify a teacher involved in a fight with another teacher while they were grading Regent’s exams. (You can read that post here.)

The Second Department reversed the prior determination and ordered the school district to defend the teacher who was the target of a civil suit.

This Article 78 case was brought about to review the determination of respondent denying petitioner’s request to defend and indemnify himself in an action pending in Supreme Court. The Supreme Court originally denied the petition and dismissed the motion which resulted in this Article 78 appeal.

Petitioner was involved in a physical altercation with a fellow teacher while grading Regents examinations in the school library. Petitioner was in charge of a group of teachers and directed his co-worker, Philip McCarthy, to sit down and continue grading papers. McCarthy then threw water at petitioner and petitioner proceeded to place him in a head-lock. After this incident, McCarthy filed a civil action against petitioner to recover damages for the assault and respondent refused to defend and indemnify the petitioner.

The Court feels that it was unreasonable for the respondent to deny petitioner’s request due to the circumstances of the altercation. The incident occurred on school grounds while the petitioner and McCarthy were on duty grading exams and therefore could not be considered “wholly personal”.

Accordingly, the Supreme Court reversed the judgment, granted the petition, annulled the determination and directed respondent to defend and indemnity petitioner in the subject action.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Ethan Mirenberg v Lynbrook Union Free School District Board of Education

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Lynbrook Union Free School District Board of Education which affirmed a determination of the Lynbrook School Superintendent accepting the recommendation of a hearing officer finding petitioner guilty of disciplinary charges. Petitioner filed an appeal with the Supreme Court which was denied on the ground that he failed to exhaust his administrative remedies prior to pursing action in the Supreme Court.

The petitioner did appeal the Board of Education’s decision to the Commissioner of the New York State Education Department but that appeal was not yet resolved when he filed his appeal in Supreme Court and thus he failed to exhaust an available administrative remedy. Additionally petitioner failed to establish that there was an applicable exception to the administrative remedies doctrine.

Accordingly, the Supreme Court dismissed the proceeding without prejudice and affirmed the judgment denying the petition.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Back in July of 2007, we blogged about some issues that Long Beach was having with provisional appointments in civil service positions. Long Beach is not alone in their struggles, recently Cleveland has been experiencing a similar situation. Much like Long Beach, Cleveland is now fighting a legal battle to determine whether the hiring of civil service employees was done fairly. Cleveland’s Judge McGinty ruled in favor of the employee organizations against the charter amendment that would allow hundreds of municipal workers to keep their jobs without taking any qualifying civil service exams.

You can read more about Cleveland’s civil service feud here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This week, Lisa Colangelo, writes about the ongoing controversy concerning residency requirements for city employees. Many city workers are no longer required to live within the five boroughs of New York City. All uniformed workers – police officers, firefighters, correction officers and sanitation officers – are allowed to live in the surrounding counties and north in New York State. The city’s largest union, District Council 37, recently won the right to live outside of city limits. Now several other unions, including Teamsters Local 237 and Communication Workers of America Local 1180, are pushing to get residency requirements lifted by ways of a bill, Intro. 992. Some individuals feel that residency requirements should be eliminated all together for the sake of fairness but this suggestion does not sit well with the city.

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Any individual or entity who feels that they have been aggrieved by an action or decision of the President of the Civil Service Commission may file an appeal to the Commission.

The aggrieved party (“appellant”) should submit the appeal with all necessary supporting documents, in writing, according to the deadlines pertaining to the subject of the appeal. The appeal should include a copy of the final determination letter from the Commission as well as any documents and information supporting appellant’s appeal. If unsure of the statute or time restrictions on the appeal, appellants should file with the Commission within thirty days of receiving the written determination.

After receiving an appeal, the Commission will send out an Acknowledgment of Appeal and process the appeal internally. Once they have received all relevant information, the Commission will notify appellant that the appeal will be presented to the Commission. The Commission generally considers an appeal based on the papers submitted. The appellant may request to appear before the Commission to present their appeal and if the Commission agrees, they will inform appellant, in writing, of the date, time and place of the appeal.

The appellant may appear before the Commission with or without representation. If the appellant choices to appear with a representative, they will be provided the opportunity to present arguments in support of their positions. The proceedings are informal and formal rules of evidence do not apply. No oaths are administered and individuals are not subject to cross-examination. If the appellant or their representative fails to appear at the scheduled hearing, the appeal will be determined based on the appellant’s written submissions.

After all evidence and arguments have been presented, the Commission will deliberate and determine whether to grant or deny the appeal. All final decisions will be made in writing. The Commission will mail the appellant a copy of the final decision as well as posting it on the Commission’s public website.

Read the full guidelines here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Edward Paradiso v Joseph Loeffler

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Village of Ocean Beach denying his application for an increase in his annual compensation. Petitioner is the head of the Village of Ocean Beach Police Department (OBPD) and has one immediate subordinate. When his subordinate received an annual salary increase, petitioner requested the same but was denied. He then commenced an Article 78 proceeding to annul the determination denying his request. His appeal was based on General Municipal Mal 207-m(1) that states, in pertinent part, when the base salary of the permanent full-time police officer of a negotiating unit is increased, the salary of the head of police must also be increased by that same amount. The Supreme Court granted his petition.

The appellants appealed this decision by arguing that petitioner was not covered by GML 207-m(1) because it refers to a unionized police force and the OBPD is not unionized. Therefore, the petitioner was not within the coverage of this statute. The Court agreed with appellants that the salary of petitioner and petitioner’s subordinate would not be covered by a collective bargaining agreement.

Accordingly, the Supreme Court reversed the judgment, confirmed the determination, denied the petition and dismissed the proceeding on the merits.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Patricia Lewis v New York City Police Department

Petitioner, Patricia Lewis, a retired New York City police detective, commenced this Article 78 appeal to annul the denial of her application for accidental disability retirement (ADR) and to direct respondents to retire her with a line of duty ADR allowance retroactive to the date of her ordinary service retirement. Petitioner worked for the NYPD from 1984 through 2004. Over the course of her service, she sustained multiple line of duty injuries. Among these injuries were injuries sustained while assisting at the World Trade Center site on September 11, 2001. In October 2002, petitioner filed an ADR application to the Medical Board stating that she could not perform her duties due to respiratory problems caused by her work at the World Trade Center.

The Medical Board first considered petitioner’s application in June 2003 and found that the evidence did not prove petitioner was disabled from performing the full duties of a NYC police officer. The Trustees reviewed this decision and upheld the decision to deny petitioner’s ADR. In May 2004, petitioner filed another application for ADR based on her issues with shortness of breath, burning lungs, and nose bleeds. Again, the Medical Board recommended disapproval of petitioner’s applications and the Trustees agreed. In August 2006, the Medical Board reviewed petitioner’s second ADR application for a second time and came to the same conclusion. After the fifth denial, petitioner commenced this Article 78 appeal.

To challenge a disability determination in an Article 78 appeal, the findings of the Medical Board will always be upheld unless it lacks a rational basis or is arbitrary and capricious. As long as the Medical Board can provide evidence to support its decision the Court cannot weigh the medical evidence or substitute their judgment. While the petitioner clearly suffered from some sort of respiratory impairment, as evidenced in the doctors’ reports she provided, the Medical Board’s finding that the impairment was not substantial enough to the level of a disability was supported by independent credible evidence and therefore the Court must defer to the expertise of the Medical Board.

Accordingly, the Supreme Court denied petition seeking to annul respondents’ determination to deny ADR and dismissed the proceeding.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mitchell Barandes v New York City Department of Education

Petitioner, Mitchell Barandes, brought about this Article 78 appeal to enjoin the New York City Department of Education from enforcing termination of petitioner, to declare that he had acquired tenure by estoppel, and to order a disciplinary hearing or a name-clearing hearing.

Petitioner’s argument that he had acquired tenure by estoppel was proved false because he had not earned sufficient credits as a substitute teacher to reduce his probationary period. Petitioner’s argument that respondents acted in an arbitrary and capricious manner was also unfounded because he failed to present any evidence to support this allegation. In fact, respondents noted that petitioner had been on notice that his teaching performance was unsatisfactory since December 2007. The decision to terminate petitioner was not in bad faith and was supported by three unsatisfactory observations and an incident of misconduct. Since petitioner was not a tenured employee he is warranted a disciplinary hearing. In regards to the demand for a name-clearing hearing, the materials contained in petitioner’s personnel file are not stigmatizing but instead describe instances of bad judgment or incompetent performance of duties.

Accordingly, the Supreme Court denied petitioner’s motion for an order enjoining respondent from enforcing its determination discontinuing petitioner’s probationary service, denied the petition and dismissed the proceeding.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link