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

Barcellos v. Robbins
Index # 2007-05629

The Appellate Division, Second Deparment reversed Judge McMahon's decision denying the dismissal of the complaint which alleged the wrongful discharge of an at-will employee.  Plaintiff failed to plead sufficient facts which made the defendant's acts outside the scope of their employment. New York does not recognize a cause of action for the tort of abusive or wrongful discharge of an at-will employee.  The decision can be found   here:www.courts.state.ny.us/reporter/3dseries/2008/2008_03572.htm

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The Brooklyn Bridge Park Legal Defense Fund brought this Article 78 to review whether the Final Environmental Impact Statement (FEIS) prepared the Respondents New York State Urban Development Corporation failed to take into account the potential traffic impacts from the Atlantic Yards Project. The standard of review was whether the detemination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, of a violation of lawful procedure (CPLR 7803(3).  The Court held that the FEIS did take into account traffic expected to be generated by the project. Additionally, the traffic analysis was reviewed by the NYC DOT.  Finally, the public trust doctrine was not violated by the plan of locating residential housing on the development project.  The full decision can be found here: www.courts.state.ny.us/reporter/3dseries/2008/2008_03641.htm

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Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

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Alexander v. NYS Office of Children and Family Services
Index # 20906/06

The Appellate Division, Second Department determining this Article 78 Petition held that there was substantial evidence in the hearing record to uphold the determining of the designee of the Commissioner of the New York State Office of Children and Family Services to revoke the Petitioner's licencse.  The penalty of license revocation was neither arbitrary and capricious nor disproportionate to the misconduct.  The decision can be found here www.nycourts.gov/reporter/3dseries/2008/2008_03451.htm

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The New York State Department of Motor Vehicles has a comprehensive Frequently Asked Questions page which can be found here: www.nydmv.state.ny.us/dmvfaqs.htm

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Article 78 Motion to Annul Disqualification Denied

Rivers v. New York City Department of Sanitation

Index No. 104210/07

The Supreme Court of New York County granted respondents’ cross motion to dismiss petitioner’s Article 78 proceeding seeking to annul respondents’ determination disqualifying petitioner from consideration for the position of sanitation worker affirmed.

 The court did not convert the cross motion to dismiss the petition for failure to state a cause of action into a motion for summary judgment without notice. Instead, the court found that petitioner was unable to show cause of action that respondents acted arbitrarily, capricious, or without a rational basis. The determination finding petitioner medically not qualified for the position of sanitation worker was rationally based on findings that she suffered from left ventricular hypertrophy and had elevated blood pressure. Respondents relied on conclusions of Department of Sanitation’s medical director, not the conflicting opinions from petitioner’s physicians.

 Accordingly, the Supreme Court denied the petitioner’s appeal and granted respondents’ cross motion to dismiss.

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Early Childhood Center’s Motion for Summary Judgment Denied

Castro v. City of New York Department of Education

Index No. 104826/05

The Supreme Court of New York County denied defendants’ motion for a summary judgment.

 Infant Plaintiff, three-year old “special needs” student, Nicholas Castro was allegedly injured by another student on three occasions at defendants’ early childhood center. The final injury was a broken femur. Plaintiffs wish to hold defendants liable for negligent supervision.

 The plaintiffs introduced sufficient evidence to raise a triable issue of fact concerning the defendants’ awareness of prior injuries to this child while under their care and custody and to raise factual issues as to the adequacy of supervision.

 Accordingly, the Supreme Court denied the school authorities’ motion for summary judgment.

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A recent article in the New York Law Journal reported that the NYPD Department Advocate’s Office is now “civilianized”. The Department Advocate’s Office, which prosecutes officers in courtroom hearing before administrative law judges, is now composed of veteran litigators recruited primarily from the offices of district attorneys and the Legal Aid Society.

 Traditionally, the advocate’s office has been staffed by police officers straight out of law school. In 2005, Commissioner Raymond Kelley hired Julie Schwartz, former chief of the Sex Crimes and Special Victims Bureau at the Brooklyn District Attorney’s office, to alter the public perception of the advocate’s office. Ms. Schwartz’ aim was to “professionalize” the advocate’s office as a legal agency.

 This effort to bring credibility to the department has given way to a plethora of benefits to the parties involved. Officer-lawyers pursuing criminal charges against fellow police officers were commonly referred to as “rats” and most officers did not desire the position of a rat. Now, with the shift to civilian attorneys, more police officers are back out on patrol. A handful of the 25 lawyers under Ms. Schwartz command are uniformed police officers but these individuals do not have caseloads nor do they try cases.

 Positive statistics show prove an “improvement of the quality of service” provided by the civilian lawyers. In the past three years, since Ms. Schwartz’ reform, trials have gone down and negotiations have gone up. This means that the NYPD advocate’s office is being more careful about what they bring to trial. Also, fewer dismissals mean more credibility with the public and fewer cases brought to trial mean less unnecessary anxiety for police officers.

 Read entire article here.

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