New York Civil Service Attorney Law Blog

New York Civil Service Attorney Law Blog

Terminated Probationary teacher seeking back pay in Article 78 must file Notice of Claim in 90 days

Posted in 3020a, Article 78, Civil Service, Civil Service Discipline, Teacher Issues

The New York State Court of Appeals held that a probationary teacher who sues for back pay in an Article 78 would have had to have filed a Notice of Claim within 90 after the claim arose.

The Court affirmed the Appellate Division, Second Department decision in that when back pay was requested a Notice of Claim would have been required.  It stated when only equitable relief or, in other words, reinstated is sought there is no Notice of Claim requirement. see Matter of Sheil v Melucci, 94 AD3d 766

The Notice of Claim requirement is contatined in Education Law 3813 (1).  When more than equitable relief is sought in this type of Article 78 proceeding the filing of a Notice of Claim is a condition precedent to maintaining the proceeding.

Read about this probationary teacher termination case here.

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Education Law 3020(a) termination decision upheld

Posted in 3020a, Civil Service Discipline, Teacher Issues

After and Education Law 3020-a hearing the Petitioner was terminated from employment with the New York City Department of Education. DOE.  She had been a tenured teacher and was charged with failing to plan and execute lessons after being observed on numerous dates. The Court ruled that the teacher “failed to implement the school administration’s professional development recommendations with regard to lesson planning, preparation and execution, proper pacing of lessons, ensuing students say on task, and assessing students’ progress among other things.”

The Court also decided that the penalty of termination did not shock their sense of fairness.

Read about this Education Law 3020(a) termination case here.

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Should you appeal an NYPD disqualification?

Posted in Civil Service, Disqualification Success Stories, NYPD disqualification appeals attorney

Some of the Most  Frequent questions I receive:

Should I appeal my Civil Service job disqualification?

Well, consider what happens to your chances of being a law enforcement officer if you let a disqualification stand.

Most law enforcement agencies are required to conduct an investigation for every exam you take but how authentic will it be?

Possibly not so in depth because the person doing the investigation or testing will have in the back of their mind that you were already disqualified by another agency.  They may try to piggyback on that decision.

So your chances of ever being in law enforcement are severely damaged by your failure to take action to fight your disqualification.

By fighting your disqualification the situation never gets worse – it can only get better. That is, the disqualification could get overturned.

Agencies will even use the fact that you did not appeal your disqualification against you and say that you did not even appeal last time you were disqualified which they imply shows that the disqualification was proper.  They do not say that you didn’t appeal because you didn’t have the funds, time, energy, were a student, were living out of the country or were in the armed forces.  They only state that you were disqualified and did not appeal.

Call me to discuss your NYPD disqualification or other disqualifications such as, FDNY disqualification, New York City Department of Corrections disqualification or New York State Civil Service Law disqualifications.  Call my office toll free (888) 998-9984 or email me at

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Article 78 for terminated employee denied

Posted in Civil Service Discipline, Employment Law

This Article 78 cases considered the requirement to file a Notice of Claim within 90 days of being terminated.  The court held that a Notice of Claim must be filed in the case of an employee being terminated.  A hearing officer found that a BOCES employee guilty of miscouct and insubordination and the respondent’s moved to dismiss the Article 78 proceeding for failure to file and Notice of Claim.  The motion was granted and the motion “a condition precedent to the maintenance of this proceeding, in which he seeks both equitable relief and recovery of damages (see Education Law 3813[1].  Read about this Article 78 employee termination case here.

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Can I appeal a decision to terminate by an Administrative Law Judge?

Posted in 3020a, Article 78, Civil Service Discipline, Employment Law, Teacher Issues

So I frequently get asked the question:

Are there are options when you are terminated following administrative hearing?

The answer is yes. There is a section in the New York State Civil Practice Law and Rules known as Article 78 which allows you to file a Notice of Petition and Petition in the Supreme Court of the county concerned and request that a judge reviewed the determination of termination.

One of the very important differences under New York State Education Law 3020a a teacher would have a 10 day Statue of Limitations which runs from the  day you are your attorney receives the determination.

In either case you would want to call me at 888-998-9984 to discuss your options.

Visit New York State CPLR Article 78 by clicking here.

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Section 75 decision to terminate a New York State Trooper upheld

Posted in Article 78, Civil Service

A New York State Trooper was terminated after a Section 75 hearing and filed and Article 78 proceeding to appeal the decision. The Appellate Division, Fourth Department affirmed the termination decision.  One of the issues the trooper raised was that one of the charges brought against him violated the 18 month maximum time limit to file charges but in this instance the conduct constituted the NYS Penal Law crime of Official Misconduct  (NYS Penal Law Sect 195.00) and accordingly, the 18 month maximum time limit did not apply.

Petitioner’s other contentions were also dismissed by the appeals court. The Court held that the determination was supported by substantial evidence in the record and that the penalty of termination was not shocking to one’s sense of fairness.

Petitioner also claimed that the lower court improperly denied requests for the production of evidence but the Court held that the Petitioner did not show that the production of the evidence was necessary.

Read more about this New York State Trooper termination Article 78 appeal here.

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Teacher’s U rating reversed because NYC DOE did not follow required procedure

Posted in Appeal u rating, Article 78, Employment Law, Teacher Issues

Petitioner appeal a U rating for the 2010-2011 school year. Judge Hunter upheld the U rating but the Appellate Division, First Department reversed the ruling holding the the BOE, currently DOE did not follow the proper Performance Review Process.  The principal did do an observation of the Petitioner but failed to: file a post observation report; converse with Petitioner after the observation or post comments to Petitioner’s file. Therefore, it was found that Petitioner may not have known that the was considered to be performing unsatisfactiorly.  Read about this Article 78 U rating appeal case there.

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Article 78 Petition by probationary teacher dismissed

Posted in Article 78, Teacher Issues

Petitioner was a probationary teacher with the New York City Department of Education and received a “U” rating. He appealed his “U” or unsatisfactory rating to the Chancllor’s committed and they denied his appeal.  In his Article 78 filing he appealed the composition of the Chancellor’s committee but had failed to preserve his appeal by first bringing up his contentions at the Committee hearing. Accordingly, his first raising this issue in his Article 78 suit was found to be improper and this contention was denied.

The Chancellor Committee decision to uphold the “U” rating was unanomous against the Petitioner.  On appeal the Appellate Division, Second Department held that the Petitioner failed to prove bad faith on the part of the Respondent DOE nor did he prove that they had acted for some unconstitutional purpose or in violation of law.

Additionally, Petitioner’s “U” rating was not issued in an “arbitrary or capricous” manner nor was it irrational.  Read this Article 78 to reverse a “U” rating here.

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Pistol Permit denied after Article 78 Petition

Posted in Uncategorized

Petitioner was denied a pistol permit and filed suit. Carol S. Klein was an acting Suprme Court Judge in Orange County, New York.  The Appellate Division, Second Department affirmed Judge Klein’s decision to uphold the pistol licensing officer’s decision to deny the applicant a permit.

Penal Law sect 400(1) sets forth the eligiblity requirements for a pistol license. They included being more than 21 years; no felony or serious crime convictions; not having a license revoked; and being a person who has no good cause existing for denial of the license.

The standard of review is whether the licensing officer’s decision was arbitrary and capricious. In this case it was not due to applicant’s criminal history and other issues found by the licensing officer.

Read about this Article 78 for a pistol licenses denial here.

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Article 78 denied NYC DOB single attempt at service of NOV and “affixing” found sufficient service.

Posted in Uncategorized

Petitioner filed suit under Article 78 to vacate decisions on nine Notices of Violation (NOV) file against them by the Department of Buildings. (DOB)  At issue was whether a single attempt at personal service following by “affixing” a notice was sufficient.  The court held that this was sufficient and that the New York City Charter ordinance 1049-a(d)(2)(b) is not as onerous as the CPLR requirements for service.  Read about this NYC Department of Buildings and Environmental Control Board (ECB) case here.  

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