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

Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Matter of Britt v. DiNapoli

          This case was a CPLR Article 78, to review a determination made by respondent, New  York State Comptroller denying petitioner’s application for performance of duty disability retirement benefits.

          Petitioner was a deputy sheriff, who was injured on the job apprehending a suspect in 1999.  He returned to work in 2000 and was then again injured on the job when punched in the lower spine.  The New York State and Local Employee’s Retirement System denied his disability retirement benefits believing his incapacity was not the result of workplace injuries.  A Hearing Officer affirmed this decision. 

          The Court decided that the Comptroller’s decision lacked substantial evidence.  Both parties agreed that the petitioner was permanently incapacitated from further work.  Petitioner needed to prove that these injuries were the “natural and proximate result of his workplace injuries.”  Petitioner had never suffered back problems until his first incident in 1999.  Petitioner’s chiropractor, orthopedic surgeon and neurosurgeon all agreed that petitioner’s disability was caused by these two work-related accidents. 

          Respondent’s orthopedic surgeon argued that petitioner’s disability was caused originally by degenerative disc disease and osteoarthritis, rather than trauma.  But, the legal precept states that “when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability.”

          Therefore the Court concluded that the Comptroller’s decision was without merit.  The determination was annulled and the petition granted. 

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Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Matter of Oparaji v City of New York

          Petitioner sought an Article 78 proceeding in order to annul a final determination made by the New York City Environmental Control Board that affirmed five separate violations. 

          Respondents asserted that the ECB’s decision “was based upon substantial evidence in the administrative record and in all respects conforms with the applicable statutes, laws and regulations, and was a proper exercise of the ECB’s discretion, and was reasonable and rational and should be upheld by the courts.”

          Judicial review is limited to whether the decision was “arbitrary and capricious, that it exceeded ECB’s statutory authority or was made in violation of the Constitution or the laws of the State. 

          The respondent utilized the “affix and mail” service for all of the NOV’s.  New York City Charter Section 1049-a(2) (b) provides that an “affix and mail” option can only be resorted to after “a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for.”

          A “reasonable attempt” could be considered as at least two attempts at personal service, one during general working hours and once when a person who may work general working hours would be reasonably expected to be home. 

          Considering the ECB final determination, respondent’s ignored the requirement of a reasonable attempt to serve petitioner with NOV’s before choosing to “affix and mail” the NOV’s. 

          The Court found that the ECB failed to determine whether the serving officers made a reasonable attempt to service petitioner with the NOV’s prior to choosing the “affix and mail” secondary option.  The Court found that the ECB’s determination that the petitioner had been properly served and that the ECB had jurisdiction over him was arbitrary and capricious.  Therefore the request to annul the respondent’s determination was granted. 

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Department of Transportation v. K.M.

          The Petitioner, Department of Transportation, brought about these proceedings for employee disciplinary action under section 75 of the Civil Service Law against respondent, a highway repairer for absence without leave and excessive lateness. 

          Respondent had been with the Department since 1985 and was characterized as a hard worker with a poor attendance record. 

          Respondent did not argue that he had been AWOL for several days and late on ten separate occasions. 

          The ALJ had agreed with the Department of Transportation on each instance of respondent’s absence without leave except for one.  This instance was where respondent was denied emergency leave in order to bring his wife to see her brother who was undergoing a biopsy and was being treated for an unknown blood disorder, and still went.  “According to the doctor, the presence of respondent and family members was important to the patient’s well being.” 

          The ALJ believed that because this was an exceptional circumstance this AWOL instance should be dismissed. 

          The Department rules concerning excessive or habitual lateness is expressed by the Citywide Employee Lateness Policy.  “That policy provides for a five minute grace period and defines excessive lateness as seven or more late arrivals.” The policy mandates that a supervisor meet with the employee after the fourth lateness to explain the policy to them and develop methods to help avoid tardiness in the future.  As well, the employee must be warned of the possibility of disciplinary action following further lateness. 

          The ALJ established that it was unclear if the respondent was warned of how future lateness could result in disciplinary action, the petitioner’s compliance with the policy was not followed.  He also expressed that four of respondent’s lateness’s were less then ten minutes each and that excessive tardiness is considered seven within a twelve month period.  Therefore the excessive lateness charge was dismissed. 

          Petitioner sought a 20-day suspension without pay.  Since the respondent had no previous disciplinary record and was expressed as a good worker who needed to improve his attendance.  The ALJ therefore recommended a 10-day suspension.  Dep’t of Transportation v. K.M. (in PDF)

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Matter of Tierney v New York State Comptroller

            This case was brought by an Article 78 proceeding to review decision by the NYS Comptroller denying petitioner a police lieutenant with the Port Authority of New York and New Jersey, accidental disability retirement benefits. 

            Petitioner slipped on May 1, 2006 resulting in a knee injury.  The incident occurred in a place where the petitioner had worked consistently, where discarded food was located on a step adjoining an office building and a parking lot. 

            The denial of petitioner’s accidental disability benefits then went to a hearing and redetermination.  The Hearing Officer declared the May 1, 2006 incident to not be an accident within the meaning of Retirement and Social Security Law 363.  This is because petitioner stated that the discarded food was near a waste can, therefore the petitioner “had to see foreign objects on these steps on prior occasions,” thus “foreign objects on the steps was foreseeable.”  The previous decision was upheld.

            The determination of the court believed that “The conclusion that petitioner actually saw debris on prior dates, based solely on the presence for an unknown amount of time of a waste can in the vicinity, is speculative and unsupported by substantial evidence in this record.” 

            The determination was annulled and the petition was granted, with the matter remitted to respondent for further proceedings not inconsistent with the Court’s decision. 

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Matter of Kolmel v City of New York

          Petitioner seeking to annul the determination of the City of New York Department of Education, denying certification of completion of probation and terminating employment as a probationary teacher, as well as denying his appeal of petitioner’s “U” rating for the 2008-09 school year. 

          The Court decided to unanimously reverse and the petition was granted annulling the “U” rating and remanding the matter to the DOE for proper completion of the final review and recommendation.

          Petitioner was a probationary teacher for three years, receiving satisfactory reviews and reports for each school year.  Petitioner agreed to extend his probationary period into the 2008-09 school year.  This year he received two unsatisfactory and satisfactory classroom reports.  The principal gave him an unsatisfactory rating for each category within the year-end report resulting in a U-rating for the 2008-09 school year.  Petitioner was then denied certification of completion of probation which required his termination and disallowed him from being hired elsewhere in the City.

          Although petitioner’s unsatisfactory reviews within the 2008-09 school year could suffice as rational support that he had not developed enough to be a proficient teacher, there is evidence that proves other.

          Petitioner submitted evidence that the principal, who made the final determination of the “U” rating for the 2008-09 school year, did not observe the petitioner’s teaching within his last two years of teaching.  This violates the DOE’s rules when considering teachers reviews, that require at minimum one observation (by the principal) and pre-observation meetings with probationary teachers in danger of “U” ratings.  The principal’s year end evaluation was without evidence and seemed arbitrarily completed.  A current DOE employee submitted a statement that the principal would pressure assistant principal’s into giving undeserved “U” ratings without observation.  “These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process.” 

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Matter of Colon v. Kelly

          Petitioner is the widow and beneficiary of a former Detective of the NYPD.  Petitioner brought proceedings under Article 78 seeking to annul the decision of The Board of Trustees of the Police Pension Fund that denied petitioner accidental death benefit. 

          Petitioner’s spouse performed “rescue, recovery, and clean up operations at Ground Zero for over forty hours” following September 11, 2011.  He was then diagnosed with esophageal cancer after doctors discovered a tumor, he then past away in August of 2003. 

          The Medical Board had denied the petitioner’s application for ADB stating that “based on the size of the tumor, Titus’ cancer predated his work at Ground Zero.” 

          Administrative Code of the City of New York requires that ADB is available to a widow of a deceased police officer when the death was caused by an accident in the line of duty and not the consequence of negligence by the deceased.  “WTC presumption” is available to any member of the NYPD that participated in the WTC “rescue, recovery, and clean-up” and later “dies from a qualifying World Trade center condition … unless the contrary can be proven by competent evidence.”  Administrative Code 13-252.1(3). 

          Respondents’ maintain that the Medical Board used its own expertise to conclude that “cancer grows over a period of years and not months.”  Respondent’s state that the deceased’s cancer couldn’t have been caused by exposure to WTC.  As well, that asbestos does not negatively affect esophageal cancer. 

          The Medical Board failed to provide any scientific evidence about its conclusion.  As well, they failed to discuss the likelihood that the deceased could have been exposed to other cancer causing substances that could have made his condition worse. 

          Petition is granted, the decision by the PPF to deny petitioner ADB is annulled and it is further ordered that the matter is remanded to a fresh Medical Board for a new determination. 

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Matter of Ward v City of Long Beach

          An Article 78 proceeding to review a determination of the City of Long Beach, made in 2008, which denied the petitioner’s application for supplemental wage benefits pursuant to General Municipal Law 207-a(2).  The City of Long Beach appeals from the judgment that annulled the determination and directed it to pay the petitioner subject benefits. 

          The petitioner, a former lieutenant, employed by the fire department of the City of Long Beach allegedly injured his left knee in 2003.  In 2005 petitioner was granted accidental disability retirement benefits pursuant to General Municipal Law 207-a(2).  The petitioner applied for supplemental wage benefits through the City of Long Beach pursuant to General Municipal Law 207-a(2).  The Supreme Court granted within the petition to annul the determination and direct the City to pay the petitioner subject benefits. 

          It was decided that the Supreme Court correctly determined that the City’s determination had no rational basis, was arbitrary and capricious.  Therefore, the determination by the Supreme Court was proper in granting the branch of the petition to annul the determination and direct the City to pay petitioner supplemental wage benefits. 

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