New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Clarke v Town of Sand Lake Zoning Board of Appeals

This article 78 proceeding was an appeal from a judgment dismissing petitioner’s application to review a determination of respondent, Town of Sand Lake Zoning Board of Appeals, issuing a building permit and certificate of occupancy to respondents Richard and Diane Morris.

Petitioner, Nancy Clarke, owns property in Sand Lake adjacent to the lakefront property owned by respondents, Richard and Diane Morris. In June 2006, respondent Town of Sand Lake Code Enforcement Officer issued a building permit. Petitioner appealed to respondent Town of Sand Lake Zoning Board of Appeals (ZBA) and commenced an action in Supreme Court. The court dismissed this action.

Petitioner commenced this article 78 proceeding to annul the ZBA’s decision. The Court notes that petitioner was aware that construction was occurring on the neighboring property prior to and during the construction and did not appeal to the ZBA until late October 2006. The doctrine of laches bars petitioner’s challenge due to her delay in seeking protection for her interests and her inability to provide a reason for not acting sooner. Also, the ZBA’s determination was not arbitrary and capricious.

Accordingly, the Supreme Court affirmed the judgment, without costs.

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Matter of Woodland Community Association v Planning Board of Town of Shandaken

This article 78 appeal was brought against a judgment dismissing petitioners’ application to review a determination of respondent Planning Board of the Town of Shandaken granting respondent Good Water Corporation’s application for site plan approval and a special use permit.

In 2006, respondent Planning Board approved a special use permit to Good Water Corporation for the proposal to collect and haul away water to be sold for non-potable uses such as filling swimming pools. Petitioner, Woodland Community Association, in an article 78 proceeding sought to have the Planning Board’s resolution annulled. The Supreme Court dismissed the petition which prompted this appeal by petitioners.

The Court agrees with petitioner’s argument that the Planning Board lacked jurisdiction to determine the water collection was a special use permit. The Town Zoning Code only identifies “water bottling and related uses” as being relevant to a special use permit. Good Water’s proposed use did not involve the bottling of water at any location. Only the Zoning Board of Appeals has the authority to interpret the Code’s provisions and the Code expressly states that a special use not specifically listed is prohibited unless deemed a similar use by the ZBA. Thus, the Planning Board had no authority to approve Good Water’s application for a special use permit.

Accordingly, the Supreme Court ordered the judgment reversed, without costs, petition granted, and matter remitted to respondent for further proceedings not inconsistent with Court’s decision.

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Matter of Monreal v Administrative Review Board of the State Board for Professional Medical Conduct

Petitioner, F. Javier Monreal, brought about this Article 78 to review determination of respondent which revoked petitioner’s license to practice law in New York. Last year, petitioner who is a pediatric neurologist was personally served with a notice of hearing and statement of charges alleging multiple instances of misconduct involving his treatment of 12 children. When contacted by the Administrative Law Judge (ADJ), petitioner said he would not attend the hearing. All subsequent letters regarding the upcoming hearing petitioner returned unopened. Due to petitioner’s failure to respond, the charges were deemed admitted and his license to practice medicine in New York was revoked.

Petitioner argued that he suffered from a mental health affinity and thus the Committee’s decision should be vacated and a hearing conducted. No evidence exists to support a claim that petitioner did not understand the charges against him. In fact, the evidence proves the contrary. Instead of answering the charges, petitioner wrote a letter to the Department of Health and State Board for Professional Medical Conduct saying that he was commencing a separate action to prevent the hearing from taking place. These circumstances make it apparent that petitioner understood the charges against him and was able to assert his legal rights.

Accordingly, the Supreme Court confirmed the determination, without costs and dismissed the petition.

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Matter of Island Mermaid Restaurant Corporation v New York State Liquor Authority

Petitioner, Island Mermaid Restaurant Corp., brought about this Article 78 appeal to review determination of the New York State Liquor Authority which found petitioner to have violated Alcoholic Beverage Law 106(6).

The respondent alleged that petitioner permitted the licensed premises to become disorderly. One of the petitioner’s employees verbally abused patrons and was involved in a physical altercation while ejecting these patrons from the premises. The petitioner argued that the evidence did not prove that licensee permitted the disorderly conduct. The incident was spontaneous and isolated and involved a nonmanagerial employee. No testimony was produced saying that the manager was aware that the incident was taking place nor was there any evidence that the employee involved had any history of any similar instances.

Accordingly, the Supreme Court granted the petition, with costs and annulled the determination.

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Yesterday, Nassau officials made known their plans to appeal a $950,000 award in a federal lawsuit by a correction officer who convinced a jury that she was denied the opportunity to become a police officer due to gender discrimination and harassment.

County Attorney Lorna Goodman said Luca was not retaliated against but that “She simply was unable to satisfactorily explain her expensive homes and cars on a correction officer’s salary.” Thus, she didn’t pass the investigation.

Read the full article here.

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Matter of Patricia Luca v Nassau County

Patricia Luca’s conflicts with Nassau County began in November 2000 when she was subject to sexual harassment at the county jail in East Meadow where she is employed. According to Luca, a fictitious scenario using her name was distributed while she was attending a workshop with colleagues. This scenario humiliated her and made her the butt of lewd comments. Luca filed a lawsuit regarding this incident and received an out-of-court settlement.

Luca claims that her challenging the county resulted in her being prevented from achieving her dream job of becoming a Nassau County police officer. She took the police officer exam in 1994 and was eligible to be hired but her name was passed over until she reached the max age and was no longer eligible. Luca sued Nassau County for a second time charging retaliation by the county.

After seven years in court, Patricia Luca was awarded a total of $949,973.86 in damages and lost pay, legal fees, and other costs.

Read the full article here.

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Matter of Solomon v Department of Buildings of City of New York

Petitioner, Jeffrey Solomon, brought about an Article 78 petition for an order directing respondent to either grant petitioner’s application for a master electrician license without any further hearing  and barring the Master Electrician Licensing Board (MELB) from investigating the quality of petitioner’s supervision by a master electrician and directing MELB to consider only petitioner’s character and fitness as an applicant.

Petitioner argued that MELB would be acting in excess of its jurisdiction by considering the sufficiency of his supervision by a master electrician for the requisite time period. The law does not preclude MELB from evaluating the sufficiency of the requisite supervision as long as that evaluation is not arbitrary, capricious, irrational or unlawful.

The Court also rejected petitioner’s argument that he is entitled to have his license application considered under the laws existing before certain modifications to the statutes in 2003. Applications are determined based on the law as it exists at the time of the decision, and the reasons supplied by the petitioner for relying on an outdated standard did not sway the Court’s decision.

Accordingly, the Supreme Court denied the petition.

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Reinhard v City of New York

Petitioner, Christopher Reinhard, brought about petition to appeal the decision terminating him from the FDNY for illegal drug use. Petitioner argued that he was denied due process because the disciplinary hearing was conducted in his absence. The Court made multiple attempts to contact petitioner at his home address, through his attorney, and through his union. Petitioner did not inform the Court that he had entered an inpatient treatment facility. He was fully aware that disciplinary action would follow his positive test result and should have given notice of a change of address. Accordingly, the Supreme Court dismissed the petition, without costs.

Kirk v City of New York

Petitioner, Michael Kirk, tested positive for cocaine during a random drug test and the Fire Department terminated his employment. Petitioner argued that the random drug testing policy is unconstitutional. Although alcohol dependency qualifies as a disability under Human Rights Law, drug abuse does not and petitioner failed to prove his drug use to be casually related to his alcoholism. Accordingly, the Supreme Court dismissed the petition, without costs.

O’Neill v City of New York

Petitioner, Kevin O’Neill, was terminated for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision. Petitioner argued that changes were made to the Fire Department’s policy regarding drug usage subsequent to his termination. The Court rejects petitioner’s claim that the changes should be retroactively applied to his case. Accordingly, the Supreme Court dismissed the petition, without costs.

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Smith v. New York City Department of Correction

Defendant, Kenneth Smith, made an appeal to annul his termination from the New York City Department of Corrections. Smith argued that he was terminated without notice or a hearing. The Court stands by the fact that he was a probationary employee at the time of his termination and it is a well known fact that a provisional or probationary employee may be discharged for any or no reason as long as the dismissal was not in bad faith.

The one factor that the Court considered was the fact that Smith’s probationary period had been extended by the number of days he was absent from duty. This extension was the reason Smith was still in probationary status at the time of his termination. Smith argued that he should have been given notice that his probationary period had been extended. The Court ruled that Smith was not entitled to notice because he signed a form acknowledging this and other conditions of his probation.

Accordingly, the Supreme Court dismissed the petition and the Appellate Division affirmed the lower court’s ruling.

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Fernandez v. City of New York

Defendant, Rite Aid, moved for an order dismissing plaintiff’s slip and fall complaint, alleging that the City of New York was on notice of the broken sidewalk and should be responsible for fixing it.

Administrative Code of NYC states that the property owner is responsible for maintaining the sidewalk in a safe condition. In order for the city to be liable for a defective sidewalk, they must have caused and created the defective condition that caused the plaintiff’s accident. Rite Aid employed trial testimony of a supervisor for the NYC Department of Environmental Protection who stated that the condition of the sidewalk appeared to be a result of a fire hydrant malfunctioning or leaking.

Rite Aid failed to provide any evidence that definitively proves that the City is responsible for the alleged defect under the theory of cause and create. They also failed to establish the City’s affirmative negligence and that the condition alleged caused the sidewalk to immediately break and not simply erode over time. Also Rite Aid failed to demonstrate that the sidewalk in proximity to the fire hydrant falls within the special use exception.

Accordingly, the Supreme Court denied the motion for summary judgment.

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Lackow v Department of Education of City of New York

Supreme Court granted petitioner, Douglas Lackow’s, petition to have certain determinations of teacher misconduct vacated and remanded for imposition of a lesser penalty than termination of employment in January of 2007.

Respondent, Department of Education of the City of New York brought about this appeal seeking reconsideration. A number of complaints were filed against petitioner concerning his use of sexual innuendo in high school classes he taught. Petitioner made multiple inappropriate comments to different students that can be verified by witnesses.

In light of petitioner’s proven misconduct and the fact that he had been warned in writing three times about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. The repetitive nature of petitioner’s misconduct is especially alarming. Such conduct is indicative of a continued pattern of offensive behavior that reflects an inability to understand the necessary separation between a teacher and his students.

Accordingly, the Supreme Court ordered the petition to vacate certain determinations of teacher misconduct and remand for imposition of a lesser penalty than termination reversed, the cross motion to dismiss granted, and the petition dismissed.

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Retaliation cases are a subset of workplace discrimination cases that are growing in number. This is due to the fact that it is often easier for employees to demonstrate that they were retaliated against than that they were victims of discrimination in the first place.

In two major federal statues, Congress has provided explicit protection against retaliation. No such protection exists in the portion of the age-discrimination law that applies to federal government workers. Also lacking is explicit language in a post-Civil War-era statute giving “all persons” the same right “as is enjoyed by white citizens” when dealing with contracts of employment.

The Court interpreted those two statues and adopted a broad interpretation of workers’ rights under two federal civil rights laws ruling that employees are protected from retaliation when they complain about discrimination in the workplace.

Read full article here.

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