Permanent Teacher's termination reversed by NYC Appeals Court

The Petitioner was a teacher with the NYC DOE for 21 years. He received "S" ratings for his first 18 years.  He was assigned a classroom with children performing 2 to 3 years below grade level.  The teacher requested an aide or assistant; he was denied help. The teacher received a "U" rating in 2008 and availed himself of the PIP program.

Teacher was cited for 3 issues in getting the "U" rating: class control, planning issues and managing students.  After 3 consecutive "U"s he was charged with 9 specifications.  The hearing officer found the teacher guilty and recommended termination.  

Petitioner filed suit pursuant to CPLR 7511.  The Appellate Division, First Department agreed with the Hearing Officer finding on the charges but held that the "penalty of termination shocks one's sense of fairness."  The court detailing the teachers improvements over the three years and agreed with the teachers stance on the PIP program being haphazard and the teachers supervisors being inconsistent in their advice and observations.  The case was remanded to the hearing officer for the imposition of a lesser penalty.

Read about this NYC DOE 3020-1 and CPLR 7511 case here.  

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Probationary Assistant Principal's Article 78 Appealing U Rating denied.

 A New York City High School teacher resigned in 2008 for personal reasons.  He was brought back as a probationary assistant principal.  While assistant principal he was charged for two incidents of misconduct.  He was given a "U" rating and terminated while on probation.  He filed an Article 78 which was denied and his case was dismissed.

The Petitioner alleged racial bias in his termination but Judge Kern ruled that the investigating agencies were not alleged to have been biased in their investigation therefore the bias claim was denied.

Petitioner did not gain tenune be estoppel because he resigned from his teacher position in 2008.

Finally Petitioner was not entitled to discover in this special proceeding because he did not show the need for such.

This case can be read at

Article 78 versus ECB granted

 After an ECB hearing 50 West Realty Company LP was fined $500 for changing its building to a use inconsistent with its 1992 CO.  The company filed an Article 78 to appeal.  

An Article 78 filed for a decision after a hearing was held is subject to the standard of "substantial evidence."  That is, was there substantial evidence to support the hearing officer's decision?  

In this case it was determined that because the Respondent, ECB did not have witnesses and no evidence that 50 West Realty had changed the building inconsistent with the last CO the finding and fine were dismissed.

Read about this Article 78 versus ECB here. 

Disqualification for Education and Work Experience Reversed

 Candidate for the position of Stationary Engineer (Electric) was disqualified in February 2011 due to being educated abroad and lack of work experience.  His Appeal for Manifest Error was denied in March of 2011. In October of 2011, due to a detailed breakdown of Candidate’s education and work experience to the New York City Department of Citywide Administrative Services, Candidate was found qualified and his appeal was dismissed as moot.  

Disqualification for High Blood Pressure Overturned

Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013.  The candidate suffered from White Coats Syndrome which is an elevated blood pressure in a clinical setting.  Candidate had no history of hypertension with his primary physician.  The Nassau County Civil Service Commission agreed to recheck the candidate’s blood pressure and found it to be within the MPTC standards.  Candidate’s disqualification was overturned in October 2013.

Appeal of Disqualification for Stationary Engineer Overturned

 Candidate for the position of Stationary Engineer (Electric) was disqualified in February 2011 due to being educated abroad and lack of work experience.  His Appeal for Manifest Error was denied in March of 2011. In October of 2011, due to a detailed breakdown of Candidate’s education and work experience to the New York City Department of Citywide Administrative Services, Candidate was found qualified and his appeal was dismissed as moot.  

Nassau County Police Department Disqualification for Blood Pressure Overturned

 Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013.  The candidate suffered from White Coats Syndrome which is an elevated blood pressure in a clinical setting.  Candidate had no history of hypertension with his primary physician.  The Nassau County Civil Service Commission agreed to recheck the candidate’s blood pressure and found it to be within the MPTC standards.  Candidate’s disqualification was overturned in October 2013.

NYCTA Employee request for lump sum retirement payout denied

 After retiring with an investigation pending a NYCTA employee filed an Article 78 petition alleging that the NYCTA's decision denying a hearing about his request for a lump sum payout for his time on the books was improper.  The court determined that the employee was not entitled to a hearing because he held a non-competitive class title which was classified as confidential or policy-making and New York State Civil Service Law does not guarantee disciplinary hearings for these titles.  Furthermore, the decision was not arbitrary nor capricious.  Read about this New York State Civil Service Law case. 

Off-duty NYPD Detectives use of force found not actionable

 An off-duty NYPD detective fired his weapon at a vehicle but the driver was not struck nor harmed. The officer and City were found not liable after trial.

The Appellate Division, First Department affirmed the lower court's ruling that the verdict for the defendant's should not  be set aside.  The NYPD patrol guide states that deadly force should only be used against the occupants of a moving vehicle are using deadly force against the officer of others by means "other than the vehicle." 

The reviewing court held that the detective was justified in the use of force because he fired two shots before the driver drove the vehicle towards the same detective almost hitting him. The decision of the Firearms Discharge Review Board that the detective violated the Patrol Guide was not a precedent for the negligence trial in Supreme Court.   Read about this NYPD negligence case

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One Year Driver's License suspension affirmed

In this Article 78 case the driver appeal a one year driver's license suspension which was initially imposed by an Administrative Law Judge.  The driver appealed to the NYS DMV Appeals Board.  The driver had fallen asleep at the wheel and her vehicle crossed over into oncoming traffic and struck a vehicle head on resulting in the death of the other vehicle's driver. The Appellate Division Second Department confirmed the one year suspension writing that the Supreme Court was incorrect in reducing the penalty to 60 days. The appeal court held that the one year suspension was not so disproportionate to the offense to be "shocking to one's sense of fairness or an abuse of discretion as a matter of law" read about this Article 78 NYS DMV case here.