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

Parker v. City of New York

Plaintiffs, 327 former and current Juvenile Counselors and Associate Juvenile Counselors employed by New York City’s Department of Juvenile Justice (DJJ) filed this action pursuant to the Pair Labor Standards Act of 1983 (FLSA) against the City of New York and the DJJ, alleging that the City’s compensation policies and practices violate the FLSA.

Plaintiffs argued that pursuant to 29 U.S.C. §207(o) and associated regulations, Defendants must compensate employees in cash and not compensatory time for time worked between 35 and 40 hours in a workweek where employee works over 40 hours; Defendants failed to comply with 29 U.S.C. §207(o)(5) requiring public employers to grant requests for compensatory time off within a reasonable time period; and Defendants violate the FLSA’s prompt payment requirement by paying overtime that is earned in the second week of a biweekly pay period in the paycheck covering the succeeding pay period.

The Plaintiffs’ contention that Section 207(o) mandates cash payment rather than compensatory time payment for gap-time hours falls outside the ambit of the FLSA. Nothing in Section 207(o) required Defendants to compensate gap hours in cash. Plaintiffs’ interpretation of the relevant regulation is untenable

Regarding the claimed failure of Defendants to grant requests for compensatory time off within a reasonable time period, Plaintiffs submitted data that proves only that the employees did not make use of their compensatory time within a reasonable period within their requested date and not that the City failed to make such a date available to them.

Finally, in regards to Plaintiffs’ allegation that DJJ’s overtime payment policies violate prompt payment requirements of FLSA, there is no requirement in the Act that overtime compensation be paid weekly. Plaintiffs provided a variety of arguments but these contentions are nothing just conjecture and do not create triable issues of material fact.

Accordingly, the Supreme Court ordered that the Defendants’ motion for summary judgment is granted and Plaintiffs’ cross motion denied.

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Munoz v City of New York

Plaintiff, New York City Police Officer Andres Munoz alleged that his police car was stuck by Defendant, Washington Vera, when responding to an emergency. Defendant, Petrocelli Electric Co., Inc. moved for summary judgment claiming that no issues of triable fact exist.

Vera entered into the intersection while the light was red due to the traffic light having a history of malfunctioning. The issue then becomes whether or not the malfunctioning traffic light is the proximate cause of the plaintiff’s injuries. The Court, though the City and Petrocelli retain responsibility for maintaining properly functioning traffic lights, finds that the malfunction of the light at the time of the accident was not the proximate cause of plaintiff’s injuries.

Accordingly, the Supreme Court ordered that the motions for summary judgment by the City and Petrocelli are granted and the complaint and cross claims dismissed.

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Matter of Friends of Stanford Home v Town of Niskayuna

Article 78 appeal from a judgment which granted petitioner’s application to annul a determination of respondent Town Board of the Town of Niskayuna issuing a special use permit to respondent Highbridge Development BR, LLC.

Petitioners filed this Article 78 proceeding to annul the negative declaration and the special use permit for Standford Crossings, and to gain injunctive relief prohibiting approval or further development of the State Street site. Supreme Court granted the petition which led to Highbridge and respondent LJC Properties, LLC’s appeal.

Petitioners’ argument is that contingencies in the contract of sale for the State Street property establish a nexus between the two projects. Respondents contend that the State Street and Consaul Road projects are unrelated actions with independent utility and that the Town Board did not impermissibly segment review of the two projects.

The Court sides with respondents and feels that the contractual contingencies, standing alone, do not create a geographic or environmental interrelationship between the two projects and that the contractual link between the otherwise independent actions is not sufficient to establish that they are part of an overall plan of development requiring cumulative review.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and petition dismissed.

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Timmerman v Board of Education of City School District of City of New York

In February 2007, Supreme Court ruled against Petitioner, Dolph Timmerman, in his Article 78 petition seeking to direct respondents to reimburse petitioner for the expenses he incurred defending himself against criminal charges leveled against him by two of his students.

Respondents contend that petitioner’s criminal proceeding does not fall within the scope of Education Law 3028. Since the record shows that the criminal proceeding against petitioner clearly arose directly from the disciplinary actions he took against pupils, respondents should reimburse petitioner for the attorneys fees and expenses he accrued defending himself.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and the petition granted.

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Muto v NYS Executive Department Division of Human Rights

Petitioner, Joseph F. Muto, sought to annul decision to terminate his probationary appointment on the grounds of bad faith and arbitrary and capricious action.

 Petitioner was hired by respondent, New York Division of Human Rights, for a probationary period of one year. On his application, Muto wrote that though he had worked as a practicing attorney in New York, he was not admitted to the New York bar. Petitioner said that the reason for this was because he was disbarred for negligent client representation by failing to appear for out-of-state cases due to his fear of flying and heights.

 During his probationary period, the senior staff held a meeting to review plaintiff’s personnel file and determined that he failed to fully disclose the reasons for his disbarment. A total of 43 serious charges were brought against petitioner and he was terminated.

 Muto then brought about this Article 78 proceeding on the ground that his termination was done in bad faith and was arbitrary and capricious. Petitioner’s arguments fail to show that respondent’s determination was in bad faith. Petitioner argued that respondent could have discovered all the details of his disbarment as a matter of public record but this does not mitigate the fact that Muto disclosed certain aspects of his disbarment while hiding others.

 Petitioner did not meet his burden to show a triable issue of fact to support a claim of bad faith, improper motive, arbitrariness or capriciousness.

 Accordingly, the Supreme Court grants the Respondent’s Cross Motion to dismiss this Petition.

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Matter of DeStefano v Board of Cooperative Educational Services of Nassau County

Index No. 11638/06

Petitioner brought about this Article 78 proceeding to review a determination by the Board of Cooperative Educational Services of Nassau County (BOCES) demoting her from her position as a Teacher’s Aide to that of a School Monitor awarding her back pay of $25,927.05. January 2004, BOCES found petitioner guilty of misconduct and terminated her employment as punishment. In February 2006, the Court found that the sanction of dismissal was so disproportionate to petitioner’s misconduct as to be shocking to one’s sense of fairness and demanded a less severe punishment. March 2006, BOCES demoted petitioner to the position of School Monitor and awarded her back pay based on a School Monitor’s salary, which was less than a Teacher’s Aide salary.

 Petitioner commenced an instant proceeding to review BOCES’ determination. The Supreme Court dismissed the proceeding. No basis exists for annulling the determination of BOCES to base the back pay on a School Monitor’s salary.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

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Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

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Matter of Criscolo v Vagianelis

The Supreme Court of New York County granted petitioners’ appeal to review a determination of respondent Department of Civil Service reclassifying certain civil service job titles.

 Petitioners challenged the classification standards issued in October 2006 by respondents revising their job titles within the Department of Corrections. This reclassification would add a duty to conduct tier III inmate disciplinary hearings to the following job titles: education supervisor, plant superintendent, and assistant industrial superintendent. Petitioners contended that this reclassification was inappropriate and conflicted with the duties of their civil service titles. Supreme Court rejected these contentions and dismissed the petition resulting in this appeal by petitioners.

 The Division argued that the job titles were in need of updating and that the standardized nature of the tier III hearings combined with procedural safeguards that are in place would allow for hearings to be conducted by non-attorneys. The proposed new standards set forth many changes and among them were requiring the employees to occasionally conduct tier III hearings.

 The Division may not utilize reclassification as a means of validating out-of-title work and this appears to be the case. The Governor’s Office of Employee Relations issued determinations in August 2006 ruling that the duties of conducting tier III disciplinary hearings constituted out-of-title work. The Division was attempting to indirectly do what it is prohibited from doing directly.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

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