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 Charles M. Hulse v Thomas DiNapoli, as State Comptroller

In 2001, petitioner, a 20-year old police officer for the Town of Ramapo Police Department, injured his back while lifting a large person to perform CPR. Petitioner was out of work for a month following this incident due to a herniated lumbar disc. In 2003, petitioner injured his shoulder while engaged in a training program for bike patrol. Petitioner was participating in an exercise in proper technique for avoiding injury when falling off a bicycle. Petitioner was unable to return to full duty due to this injury and was only able to return to work part time in a light duty capacity.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

Since an accident in this context must be the result of a completely unforseeable event during the performance on routine duties, petitioner’s shoulder injury would not fall under this definition. Petitioner was participating in a training exercise that was part of his ordinary duties that involved risks and the manner in which he was injured was not unexpected or unforeseeable. Since substantial evidence exists to support respondent’s determination, the Court will not disturb it.

In regards to petitioner’s application to performance of duty retirement benefits for both injuries, petitioner failed to prove that he was permanently disabled from the performance of his duties. Though petitioner’s doctor concluded that his prognosis was “poor” for a full recovery from his shoulder injury, the respondent’s doctors provided evidence that a reasonably safe surgical procedure would relieve his pain and restore full function to his shoulder. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rationally based on the examination of petitioner, the Court agreed with respondent’s decision.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petitioner.

Read more about this Article 78 disability retirement benefits case 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.

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Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller

Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the stress of his employment duties which included dealing with inmate riots, threats, attacks, and administrative pressures. Petitioner was found to be permanently disabled but his petition was denied on the ground that his disability was not due to performance of duties. The Hearing Officer determined petitioner’s disability was congenital and denied his application for performance of duty disability retirement benefits. The respondent accepted this determination and petitioner commenced this Article 78 appeal to annul the determination.

The petitioner contended that the Hearing Officer’s decision contained significant factual errors such as stating that petitioner had high blood pressure and diabetes with no evidence to support this finding. Additionally, the decision indicated that an expert physician testified regarding his 2001 examination which is false. The physician never testified but only submitted a written report. Due to these factual errors, the Court ruled that respondent failed to present an adequate or accurate statement of the factual basis of its determination and therefore the determination must be annulled.

Accordingly, the Supreme Court annulled the determination, without costs, and remitted the matter to respondent for further proceedings.

Read more about this Article 78 performance of duty disability retirement benefits case 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.

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The town of Henderson has filed an Article 78 proceeding to annul the town of Hounsfield Planning Board’s site plan approval for the Galloo Island Wind Farm proposal. Upstate Power proposed the construction of a wind farm and a new power line on Galloo Island which would transport 1,000 megawatts of service to downstate customers.

Being reliant on tourism dollars, the Village of Pulaski and the surrounding area are concerned about the aesthetic impact of above-ground lines which could negatively impact tourism. The Town of Henderson has the same concerns about a negative economic impact. The town feels that the Department of Environmental Conservation (DEC) failed to look at the environmental concerns such as land use, wetlands, avian and aquatic species and visual, archaeological and historic resources, that surround this proposal. Henderson argues that the project will affect residents’ use and enjoyment of their property due to noise impacts, visual impacts, contamination of property, decreased property values and additional aesthetic impacts.

The town is seeking to have a judge declare that the DEC failed to comply with SEQRA requirements and to vacate the Planning Board’s site plan approval.

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.

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Matter of Home Depot U.S.A., Inc v Town Board of the Town of Southeast

In this consolidated Article 78 appeal, petitioners sought to compel the Town Board of the Town of Southeast and the Town of Southeast (thereinafter together the Town) to review the sewage rates of Independent Sewage Works, Inc., (ISW). The Supreme Court denied the Town’s motion to dismiss the consolidated proceeding and granted the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the sewage rates due to the five year lapse of time since the last review.

Petitioners filed a complaint to compel the Town to review and reduce the rates IS was charging them in June of 2005. When the Town failed to take action, petitioners commenced an Article 78 appeal since the Town was required to review the rates every five years. The Town and ISW moved to dismiss the proceeding and the petitioners cross-moved for summary judgment. The Supreme Court denied the motion and granted the cross motion directing the Town to review the sewage rated being charged by ISW.

The Court finds that the Supreme Court should have dismissed the parts of the consolidated proceeding seeking to compel the Town to consider the issues raised in the complaint due to missing the four month statute of limitations and failing to demonstrated a clear legal right under Transportation Law § 121. The Supreme Court was, however, correct in granting the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the rates charged by ISW since five years had passed since the last review. The petitioners were timely in filing this appeal and established a clear legal right to compel the Town to review the sewage rates.

Accordingly, the Supreme Court modified the order and judgment by deleting the provision denying the branch of the motion to dismiss the consolidated proceeding to compel the Town Board and Town to consider the issues raised in petitioners’ administrative complaint and substituting a provision granting that branch of the motion.

Read more about this Article 78 town of Southeast case 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.

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Matter of Flores-Tully v City of New York Department of Housing Preservation and Development

Petitioner brought about this Article 78 appeal to review a determination of the City of New York Department of Housing Preservation and Development denying petitioner’s application for succession rights to an apartment owned by Dayton Tower’s Corporation. The Supreme Court denied the petition and dismissed the proceeding which resulted in this appeal.

Petitioner claims that the decision was arbitrary and capricious and lacked a rational basis. The Court disagrees because petitioner was never named on the income affidavits filed for the apartment prior to the tenant of record’s death. Though the tenant was petitioner’s husband, Dayton was never notified of her occupancy. Additionally, she filed income affidavits that showed she occupied another apartment unit in the same building.

Accordingly, the Supreme Court affirmed the determination, with one bill of costs.

Read more about this Article 78 housing case 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.

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Petitioner, Rosina Bautista, was as a maintenance worker at New Rochelle High School in Westchester County. She sustained various injuries occurring between 1994 and 2001 and ceased working in May of 2001 due to these injuries. She then applied for ordinary disability retirement benefits and was denied on the grounds that she was not permanently disabled from performing her job duties. Petitioner then brought about this Article 78 proceeding to review the determination denying her ordinary disability retirement benefits.

The Court disagreed with petitioner’s argument that the Hearing Officer’s decision adopted by respondent lacked factual basis for denying her application. The decision was based on the expert medical examinations of three physicians who examined petitioner. All three doctors found petitioner not permanently disabled and while her personal physician reached a different conclusion, the respondent has the authority to resolve conflicts in medical evidence and to choose the opinion of one expert over that of another. The Retirement System’s experts’ opinions were rational and based on facts and therefore the Court declined to disturb it.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 disability retirement benefits case 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.

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In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

Read more about this Article 78 termination case 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.

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A new Civil Service Bill, S4562, was passed that will change the probationary period for employees of the New York City Health and Hospitals Corporation appointed to a title on the non-competitive class to one year. The current five-year probationary period is considered unfair and unnecessary by many health workers. This new bill shortens the probationary period to one year which should be adequate time for a competent manager to determine that an employee is performing at a competent level and is deserving of the right to a hearing prior to being fired.

Read more about the new Civil Service bill 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.

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Matter of Kevin Cummins v New York City Department of Education

Petitioner brought about this Article 78 proceeding to appeal his termination by the New York City Department of Education, claiming it was arbitrary and capricious and made in violation of his right to due process.

Petitioner began working for the Department of Education in 2000 as a non-tenured teacher. In March 2008, he was accused of corporal punishment and sent to a reassignment center. Later that year he was denied his Certification of Completion of Probation and it was recommended that his license be terminated. The Department of Education’s reason for termination was two unsatisfactory classroom observations, two allegations of verbal and corporal abuse, and a history of lateness. At the hearing, the Chancellor’s Committee upheld the recommendation to deny certification. Petitioner then commenced this Article 78 appeal to annul the determination.

Petitioner argued that he was not allowed to call witnesses to his hearing and therefore the determination to terminate his employment should be annulled but he did not raise this objection at the time of the hearing and therefore it cannot be considered for the first time in reviewing the administrative proceeding.

Since petitioner was a probationary employee and probationary teachers can be terminated at any time during the probationary period for any reason and petitioner failed to establish that the Department of Education’s determination was arbitrary and capricious or an abuse of discretion, the Court must uphold the respondent’s decision.

Accordingly, the Supreme Court denied the petition and dismissed the proceeding.

Read more about this Article 78 NYC Department of Education appeal.

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.

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