Advance planning is required for those hoping to get jobs with New York City. The Department of Citywide Administrative Services (DCAS) serves as the City's Personnel Department and writes, administers and scores the tests given for NYC jobs. Lisa Colangelo of the New York Daily News writes about City hiring procedures in the following article. click www.nydailynews.com/ny_local/2010/08/04/2010-08-04_for_civil_service_jobs_think_ahead.html
In the Matter of Frank Lapetina v Brian Fischer, as Commissioner of Correctional Services, et al.
Pursuant to Article 78, petitioner sought to appeal a decision by the respondent rejecting his request to partake in a temporary release program.
Petitioner is a prison inmate, who applied to partake in a temporary release program. The facility’s Temporary Release Committee approved his request. However, upon review by the Department of Correctional Services, it was denied. The respondent upheld the decision on administrative appeal. Therefore, the petitioner initiated this Article 78 proceeding, which was denied by the Supreme Court and led to the petitioner appealing.
The Supreme Court affirmed the decision stating that partaking in a temporary release program is not a right, but a privilege. The petitioner was not suitable for the program because of the nature of his crimes committed and his recidivist history.
The court order that the judgment is affirmed without costs.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
In the Matter of Aides at Home, Inc. v State of New York Workers' Compensation Board et al.
In this Article 78 case, petitioner asked the court to review a determination of respondent imposing an assessment against the petitioner.
From 1997 to 2000, petitioner was a member of a workers’ compensation group self-insured trust, New York Health Compensation Trust. In 2006, respondent terminated the Trust due to underfunding. Respondent assumed that the Trust would administer and distribute the assets and liabilities. Approximately two years later, the Board administered a deficit assessment to current and former Trust members, including the petitioner. The purpose of the deficit assessment was to cover the costs of fulfilling the Trust’s workers’ compensation claims.
Petitioner, then, initiated a combined proceeding of Article 78 and a declaratory judgment challenging the Board’s assessment. Petitioner claimed that the Board could not impose an assessment because the Board did not have statutory or regulatory authority and petitioner believes that the assessment is arbitrary and capricious and it violated the petitioner’s due process rights. The court dismissed the petition and the petitioner appealed.
Originally, the Board decision was limited to whether it "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Additionally, "the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld" Therefore, the Trust was allowed to administer its workers’ compensation liabilities after the Board terminated the Trust., the Board, according to the regulation, was allowed to assume that the Trust would administer and distribute the assets and liabilities and the Board was authorized to levy an assessment up the member in order to make up for the deficiency.
The court affirmed the judgment and order, without cost.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
In the Matter of Thomas J. McDougall v Nicholas Scoppetta, etc., et al.
Pursuant to Article 78, petitioner, Thomas J. McDougall, requested the court review a decision of the respondent and the administrative law judge, where the petitioner was found guilty of two charges of misconduct resulting in his termination. The court needed to determine whether the penalty of termination of the petitioner’s employment was top-heavy and shocking, which was perceived as an abuse of power.
The petitioner has been a member of the Fire Department of New York City for twenty-five years. After testing positive for the presence of cocaine in a random drug testing, a “Step 1” meeting was held to review the charges for violation the Fire Department regulations. McDougall was found guilty of all charges. However, due to the petitioner’s lengthy service to the Fire Department without any prior disciplinary problems, he should be allowed to resign and only be fined the sum of $80,000.
Following the “Step 1” conference, the matter was submitted to the Office of Trials and Hearing (OATH) for a hearing by an administrative law judge. The administrative law judge stated that pursuant to the Administrative Code of the City of New York § 15-113, the petitioner’s employment should be terminated.
The Commissioner of the Fire Department of the city of New York agreed with the administrative law judge and terminated the petitioner’s employment at the Fire Department. Resulting from his termination, petitioner had to forfeit his pension and retirement benefits, which included health insurance.
As stated in Administrative Code of the City of New York § 15-113, the power of the Commissioner to discipline members of the Department is reviewable under Article 78. The court needs to determine where the petitioner’s penalty was “arbitrary and capricious as a matter of law such that there was an abuse of power.”
Due to petitioner’s termination, the petitioner and his family will suffer from the loss of his pension and retirement benefits to which he earned during his 25 years of service in the Department. Petitioner was the sole financial supporter in his family. Therefore, no pension and retirement benefits would be devastating on the entire family.
The court acknowledges that this was an isolated incident for the petitioner in his twenty-five year employment with the Fire Department. Petitioner penalty is extremely shocking that an annulment of the administrative law judge decision should be imposed and a lesser penalty should be administered.
The petition is granted, with costs. The penalty of termination of the petitioner's employment is annulled and the matter is remitted to the respondents for a lesser penalty allowing the petitioner to retire and fining the petitioner the sum of $ 80,000.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78
The Matter of David Layne v Eastchester Planning Board
Pursuant to Article 78, petitioner sought the court to review a decision of the Town of Eastcheaster Planning Board.
Jalo Realty, LLC owns three adjacent properties that are designated as three separate tax lots. One lot is completely within a single-family zoning district, and another lot is completely within a retail business district that allows multi-family residential units. The third lot is situated in between those other two lots. This means that it is divided by the boundary between the two zoning district.
In June 2007, Jalo Realty, LLC applied for site plan approval to build 10 multi-family units on the three lots with the respondents. Jalo Realty, also, requested a special permit that “provides that where the boundary of a district divides a lot, a special use permit may be granted to extend a lawful conforming use on that portion of the lot lying in the less restricted district 75 feet into the more restricted district.
In February 2008, the board granted the application on grounds that Jalo demolish the present buildings and merge the three lots into one tax lot. The petitioners then sought to appeal, which the court denied and dismissed due to respondents decision had a rational basis. Jalo Realty, LLc stated that respondents’ decision was in conformance with the legislatively forced conditions.
Court stated that the petitioners’ contentions are without merit.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78
The Matter of Derrick Wingate v New York State Division of Parole
In this Article 78 case, petitioner requested the court review a decision of the respondent to revoke petitioner’s parole.
Petitioner, Derrick Wingate, has an extensive and violent criminal record. In 1982, he was convicted of escape in the second degree and two counts of criminal possession of a weapon in the third degree. Petitioner was sentenced to 15 years to life in prison. In January 2008, he was release to parole supervision. Under condition six of his release, petitioner was required to inform his parole officers of any contact (including arrests) with any law enforcement agency.
In June of the same year of his release, petitioner was charged with violating condition six. Petitioner did not inform his parole officer that the police were summoned to his residence to investigate a shooting involving his grandchildren.
Petitioner sought an appeal under article 78, after a decision not given within 4 months. The court stated that if there was a violation of the procedural requirements, then petitioner parole revocation will be confirmed. There was a tremendous amount of evidence present supporting the respondent’s decision to revoke his parole.
On the day in question, petitioner gave the officer a false name, refused to allow the officer to search his home and his interaction last several hours with a few officers. “The nature and interaction with the officer would lead a reasonable person to conclude that it was “contact” with the police” and would require the petitioner to report this to his parole officer. The parole officer testified that no such incident was ever reported by the petitioner.
The court concluded that the respondent’s decision is confirmed, without costs and the petition is dismissed.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78
The Matter of the Application of Judy Florence against The New York City Housing Authority
In this Article 78 case, petitioner sought to reverse respondent’s decision to terminate her lease due to failure to register and maintain her two dogs in compliance with the Housing Authority pet policy and her outstanding rent balance.
According to the respondent, their decision to terminate her tenancy was based on substantial evidence. First, petitioner admitted that she owned a pit bull that was involved in an attack with her neighbor in the hallway near the petitioner’s apartment and she did not register both of her pets. Second, petitioner also admitted that she failed to pay her rent on time and this was a violation of the housing Authority Policy. According to the Housing authority, failure to make payments on time is a good enough reason to terminate tenancy.
The petition was denied and the proceeding is dismissed, without costs and disbursements to the respondent.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
The Matter of Carlos Ortiz v Brian Fischer, as Commissioner of Correctional Services
In this Article 78 case, the court reviewed a decision where respondent found petitioner guilty of violating a prison disciplinary rule.
Petitioner urine was tested positive twice for the presence of cannabinoids. He was, then, charged with the use of a controlled substance and found guilty in a tier III disciplinary hearing. After the petitioner’s administrative appeal was ineffective, petitioner commenced an Article 78 proceeding.
However, the court still confirmed this initial finding. The following substantial evidence aided in the court’s decision: (1) the misbehavior report; (2) positive test results; (3) testimony of the testing officer; and (4) petitioner’s admission that he smoked marijuana.
The court reviewed the record and determined the petitioner’s guilty charge was a result of the substantial evidence and not a result of any alleged hearing officer bias. Petitioner’s argument was unpreserved or unpersuasive.
The determination was confirmed, without costs and the petition was dismissed.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
Matter of Estate of Phyllis Gravino v Thomas Young
In this Article 78 case, the court reviewed a decision of the Zoning Board of Appeals of the Town of Babylon. The Zoning Board denied the petitioner’s application for area variances.
The Zoning Board of Appeals of the Town of Babylon decision to deny petitioner because they found that the requested variances would cause an adverse effect on the surrounding neighborhood. The court’s determination was rational and not arbitrary and capricious. Also, petitioner had failed to show that the Zoning Board had granted variances to other in similar situation.
The court denied the petition and dismissed the proceeding, with costs.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
Paul Zuckerberg, et al. v Port Authority of New York and New Jersey
Pursuant to the Federal Employers’ Liability Act, the plaintiffs sought to recover damages for personal injuries.
The injured plaintiff was employed by the defendant as a police lieutenant. One day, the injured plaintiff was stationed at John F. Kennedy International Airport. While on duty, he tripped over a door saddle while exiting the tour commander’s office. The injured plaintiff applied and received worker’s compensation benefits for his injuries from the fall.
The plaintiff and his wife, then commenced this action against the Port Authority pursuant to the Federal Employers’ Liability Act (FELA). Port Authority argued that FELA did not apply to this action and that the injured plaintiff was already covered by worker’s compensation. Therefore, they moved for summary judgment to dismiss the complaint. In opposition, the injured plaintiff asserted that he was assigned to a central lieutenant’s pool and would be randomly to different areas. This included areas in the Port Authority Trans-Hudson Corporation.
The court states that FELA was inapplicable to this case. However, plaintiffs still asserts that the Port Authority, “in its capacity as the operator of an interstate railway transit system, may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA.”
The court concluded that FELA still did not apply under the circumstances of this case and granted Port Authority motion for dismissing the complaint.
Read more about this Article 78 case here.
To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.
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