New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Seemangal v New York State Office of Children and Family Services

Index No. 112461/06

New York State Office of Children and Family Services suspended and revoked petitioner’s license to operate a group family day care home due to violation of four Department of Social Services regulations. Petitioner, Diwantie Seemangal, appealed this decision in an Article 78 petition. The Court determined that petitioner’s due process rights were not violated by the issuance of the report by a person who did not preside at the hearing and the determination to revoke petitioner’s license does not shock the conscience. Petitioner’s remaining arguments were considered and found without merit.

 Accordingly, the Supreme Court denied the petition and dismissed the Article 78 proceeding.     

For the NYS Office of Children and Family Services click herewww.ocfs.state.ny.us/main/

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Mankarios v. New York City Taxi and Limousine Commission

Index No. 107087/06

Petitioner Boutros Mankarios sought to appeal respondent Taxi and Limousine Commission’s denial of petitioner’s application for a taxi driver’s license. The petition was denied and the proceeding dismissed.

 Petitioner was issued a license by New York City Taxi and Limousine Commission to operate a taxicab in 1998. In 2002, petitioner pled guilty to an incident that occurred in his cab involving two 14-year old female passengers and surrendered his TLC license.

Petitioner reapplied for a license in 2005 and was denied. Petitioner commenced this Article 78 proceeding challenging TLC’s decision. Supreme Court granted the petition, annulling the decision and directing TLC to grant the application. TLC responded with an appeal.

 The only issue in question was whether TLC’s denial of petitioner’s application was arbitrary and capricious. TLC made their decision to deny petitioner’s application based on the serious misconduct of petitioner and the fact that only three years had passed since it occurred.

 Since TLC’s determination has a rational basis, the Court denied this Article 78 petition.

Click www.nyc.gov/html/tlc/html/home/home.shtml for the NYC Taxi and Limousine Commission website.

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Schmidt v Putnam County Office of the Sheriff

Index No. 1432/06

Petitioner Jeffrey Schmidt brought this Article 78 proceeding to review the Putnam County Sheriff’s denial of disability benefits. The Supreme Court granted the petition and awarded the petitioner disability benefits.

Petitioner suffered an on-the-job fall on January 31, 2003 causing medial meniscal tears requiring subsequent surgical repair. In order to be eligible for disability benefits, a covered municipal employee must prove direct causal relationship between job duties and the resulting injury. Though the petitioner had a preexisting knee injury, the medical records unequivocally established that the injuries sustained were a result of his on-the-job fall and that these line-of-duty injuries were a direct cause of his disability.

 Accordingly, the Putnam County Sheriff’s denial was not rationally based on evidence presented and thus, the Court dismissed the denial as arbitrary and capricious.

Click www.putnamsheriff.com/ for the Putnam County Sheriff's Office Website

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Cotter v. Board of Ed. of the Garden City U.F.S.D., 19661/07
Decided: March 5, 2008

The petitioner initiated this proceeding for a judgment declaring that the respondent has failed to perform a duty upon it by law and engaged in conduct that is in violation of lawful procedure, affected by an error of law, and is arbitrary and capricious, or an abuse of discretion by refusing to save harmless and defend and indemnify the petitioner in a civil action pending in Supreme Court, County of Nassau. The petitioner also sought a judgment that the school district violated a settlement agreement that it would defend and indemnify the petitioner if he were to be sued.

Cotter and McCarthy were in the Garden City High School library grading papers.  When McCarthy wanted to leave the table Cotter protested and the two began a scuffle. McCarthy filed suit versus Cotter and the school district.

Cotter had signed an agreement with the school district that he "may" obtain defense and indemnification from the school district "to the extent permitted by law." McCarthy alleged injuries to his neck.
The Court held that the District's decision not to defend nor indemnify Cotter was not arbitrary or capricious. (CPLR 7803.) The Court dismissed the Petition..
The Garden City School District website can be found here www.gardencity.k12.ny.us/

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Pinder v. City of New York                    Index #113435

Plaintiff sued under 42 USC 1983 for damages of violations of Due Process and Employment Discrimination under Executive Law sect 296.  The First Department dismissed the complaint and held that Plaintiff was a non-tenured paraprofessional without property rights in her position.

Plaintiff had not proven that there was a “stigma-plus” due process claim as there was no proof that the reasons for her discharge was published to prospective employers.  Finally, the Court wrote that due process was satisfied when the Plaintiff used the CBA’s grievance procedure and an filed an Article 78 petition.

The City’s website is www.nyc.gov

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Murray v. Downey Index No 11224/06

This was an Article 78 to review Bronxville’s Police Chief’s decision to dock a single day’s pay from Joseph Murray. The Respondent’s moved to dismiss for Petitioner’s failure to exhaust his administrative remedies prior to filing an Article 78. 

The Appellate Division, Second Department affirmed the dismissal.

Petitioner filed a grievance with respect to the decision that petitioner Joseph Murray was not allowed to use sick leave on May 30, 2005. The grievance found its way to the Police Chief; Village Administrator and Village Board of Trustees. Petitioners failed to then send the grievance to arbitration as required by the Collective Bargaining Agreement. The Bronxville Police Department website is: villageofbronxville.com/subc2_police.htm

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S.K. v. City of New York

Index No. 2131/01

Defendants move for an order dismissing plaintiff’s complaint pursuant to CPLR §§3211 and 3212.

Plaintiff, SK, was injured during a fight with LC, a fellow student at the end of gym class on October 20, 1999. The blow to SK’s head resulted in a hemorrhage of a latent congenital vascular malformation resulting in approximately ten brain surgeries. Plaintiff alleges that the New York City Board of Education was aware of plaintiff’s history of abuse by fellow students, including LC, and that the Board was negligent in supervising the students, did not take the necessary steps to protect plaintiff, and ignored the requests of plaintiff’s father to transfer plaintiff to a safer school.

Defendants move for summary judgment on the grounds that the plaintiff was a voluntary participant in the fight, the Board had no reason to consider LC a threat because he has no prior history of violence, and plaintiff’s allegations of prior incidents do not raise a triable issue of fact. Additionally, pursuant to the New York Education Law and the New York City Charter, the city of New York is not a proper party to this action.

The court accepts as true the evidence provided by the plaintiff and therefore a triable issue of facts exists as to whether the Board, in light of the alleged specific knowledge it had that the plaintiff had previously been targeted by classmates, should have provided supervision of plaintiff or taken other steps to ensure plaintiff’s safety during school hours. As for whether plaintiff was a voluntary participant in the fight or simply acting in self-defense, the court feels it is up to a jury to decide.

The defendant’s motion for summary judgment dismissing the complaint is granted as to the City of New York because the City cannot be held liable for torts allegedly committed by the Board of Education and its employees. The motion is denied as to the Board of Education of the City of New York.

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Matter of Civil Serv. Employees Assn. Inc. v Diana

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The following was originally posted at Public Personnel Blog of Harvey Randall, Esq.

Disqualifying an applicant for appointment by a civil service commission
Matter of Murray v County of Nassau Civil Service Commission, 2007 NY Slip Op 50927(U), Supreme Court, Nassau County, James P. McCormack, J.

The Nassau Civil Service Commission disqualified Sandor Murray for employment as a Nassau County Police Officer. The Commission based its determination of Murray’s alleged failure to meet the “psychological requirement of the position.”

Murray, claiming that the Commission “acted in an arbitrary and capricious manner” when it disqualified him for appointment as a police office, filed an Article 78 petition seeking a court order directing his appointment as a Nassau County Police Officer.

Judge McCormack dismissed Murray’s petition, holding that the Commission’s decision was not irrational. Indeed, said the court, its determination is “supported by substantial evidence.” In addition, Judge McCormack found that the Commission had complied with New York Civil Service Law Section 50(4) when it considered whether Murray should be disqualified for appointment as a police officer. *

According to the decision, the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to an inquiry into whether the agency acted arbitrarily and, or, capriciously.

Noting that a civil service commission has wide discretion in determining the fitness of candidates, Judge McCormack, citing Verne v. Suffolk County Department of Civil Service, 5 AD2d 498 and Needleman v. County of Rockland, 270 AD2d 4, said that the exercise of such discretion “is particularly broad in the hiring of persons for position in law enforcement, to whom high standards must be applied.”

The decision points out that although Murray’s medical expert’s opinion differed from that of the Commission’s medical expert, “[i]t is not for the courts to choose between diverse professional opinions.”

Thus, said the court, “where there is any rational basis or credible evidence in support of an agency’s determination,” the administrative decision will be upheld (see Matter of Curcio v. Nassau County Civil Service Commission, 220 AD2d 412).

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* Section 54.4, in pertinent part, provides: No person shall be disqualified pursuant tothis subdivision unless he [or she] has been given a written statement of the reasonstherefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

Source: Initially published on the Internet in New York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

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