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

Levine v Smithtown Central School District

Defendants brought about a motion for summary judgment to dismiss plaintiff, Melissa Levine’s alleged disability discrimination action. Plaintiff was a school psychologist at the Tacken Elementary School in her final probationary year. After sustaining a concussion while trying to restrain a student, plaintiff was on leave from October through November of 2001. Then plaintiff was absent from work from December 2001 through the end of the school year due to bi-polar disease and Lyme disease. When the time came for Levine’s supervisor to evaluate her, she was not recommended for tenure and instead was recommended for termination. Plaintiff asked for an extension of her probation but was denied.

Plaintiff brought about this appeal and alleged that she was discharged due to her disability. Defendants argued that she was terminated due to poor performance prior to her prolonged absence. Additionally, in order to meet the ADA’s definition disability, a person must have a physical or mental impairment that substantially limits at least one major life activity, must have a record of this impairment, and must be regarded as having the impairment. Plaintiff failed to provide evidence that her impairment substantially limited any major life activity, her sole record of impairment was her doctor’s notes that stated a diagnosis and recommendation for continued sick leave, and her only evidence that she was regarded as impaired was the defendants’ alleged perception that she could not perform her job. In summary, Levine failed to provide sufficient evidence to permit a trier of fact to conclude that she was disabled within the meaning of the ADA.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment and dismissed the plaintiffs’ claim.

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Rosenthal v Arlington Central School District

Defendant moved for summary judgment dismissing plaintiff’s complaint against school for an alleged injury on school grounds. The infant plaintiff was allegedly injured while participating in a baseball game during gym class. The students were playing with a foam-like ball and a foam bat with a plastic handle. While waiting in line, plaintiff was struck in the nose by a bat that another student let go of while swinging. Plaintiff was in a designated safety zone surrounded by orange safety cones located 25 feet away from the batter.

A teacher’s duty is to supervise his or her student’s by exercising the same care as a parent would in similar circumstances. The defendant took reasonable and prudent measures to ensure the safety of the children engaged in this physical activity by providing students with foam equipment and having them wait in a safety zone until it was their turn to bat. The plaintiffs failed to establish any triable issues of fact. No evidence shows that the school district and supervising teachers failed to exercise the appropriate level of care nor that the safety precautions taken were inadequate.

Accordingly, the Supreme Court granted defendant’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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After Plaintiff fell on its property NYCTA moved for summary judgment dismissing the complaint.  The Appellate Division Second Department denied the motion holding that NYCTA failed to present sufficient evidentary proof that it neither created the condition nor knew of its existence.  Read the opinion here:http://www.nycourts.gov/reporter/3dseries/2008/2008_06288.htm

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Challenging an administrative determination by a civil service commission

Challenging an administrative determination by a civil service commission
Horn v The New York City Civil Service Commission, 43 A.D.3d 760, Appellate Division, First Department

Sharhann Lane, had been terminated from her position with the New York City Department of Corrections. She appealed to the New York City Civil Service Commission, which directed the Department to reinstate her to her former position.

Martin Horn, the Commissioner of the New York City Department of Correction, filed an Article 78 petition seeking to annul the Commission’s determination reinstating Lane to her former position as a correction officer.

Citing Matter of New York City Dept. of Envtl. Protection v New York City Civil Service Commission, 78 NY2d 318, the Appellate Division ruled that the lower court properly dismissed the Commissioner’s petition as a determination by the New York City Civil Service Commission is subject to judicial review only if “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”.

The Commissioner of Corrections had argued that the Civil Service Commission’s determination was against public policy and inconsistent with the Commission’s precedents in such matters. Challenges based on an alleged violation of public policy and, or, a failure to follow precedents, said the court, do not fall within the scope of judicial review permitted – i.e., consideration of alleged illegal or unconstitutional actions by the Commission or rulings alleged to be on matters beyond the Commission’s jurisdiction.

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

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Diana Hallock v Riverhead Central School District

Defendant appealed an order from Supreme Court denying its motion for summary judgment dismissing the complaint, an action to recover damages for personal injuries sustained on a school bus and at school. The defendant established its entitlement to judgment by submitting evidence proving no actual or constructive notice or knowledge of alleged misconduct on the school bus and at the school. Plaintiffs failed to prove that school authorities had specific knowledge of the dangerous conduct with caused the injury.

Accordingly, the Supreme Court reversed the order and granted defendant’s motion for summary judgment dismissing the complaint.

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Matter of Thomas Kempkes v Brian Downey

Petitioner, a police officer, brought about this Article 78 appeal to review a determination by the Chief of Police of the Village of Bronxville suspending petitioner without pay pending a disciplinary hearing. Petitioner argued that the Village was obligated to pay his disability benefits pursuant to General Municipal Law § 207-c since benefits conferred under this law constitute a vested property interest.

The issue in this case was whether General Municipal Law § 207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held. Since the constitutional guarantee of due process requires that a benefit recipient under General Municipal Law § 207-c be granted an evidentiary hearing prior to suspension of said benefits, a municipality may not discontinue the benefit payment without a prior evidentiary hearing.

Accordingly, the Supreme Court annulled the petitioner’s suspension and ordered appellants to restore the disputed benefits to petitioner until an evidentiary hearing is held and a final determination of the disciplinary charges made.

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Diane Consalvo v City of New York

The decedent was a New York City sanitation worker. He was employed with the Department of Sanitation for ten years and his duties included picking up and disposing of dead animals. In 2000 the decedent was instructed to remove a dead cat from the roadway and in the process was struck and killed by a hit-and-run driver. Plaintiffs brought about an action to recover damages for wrongful death against the City of New York Department of Sanitation and the City of New York. The defendants appealed with a motion for summary judgment dismissing the complaint. Supreme Court denied the motion leading to this appeal.

Plaintiffs alleged that the defendants’ negligence caused decedent’s death. The defendants showed that the decedent was an experienced sanitation worker who was aware of the risks inherent in his job which included the duty of picking up dead animals from the roadway. The plaintiffs failed to raise a triable issue of fact with their contention that the defendants had a duty to send two sanitation workers to pick up the dead animal. Though union rules recommend sending two sanitation workers to promote efficiency, defendants were not required to do so.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment dismissing the complaint.

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Dinapoli v City of New York

Plaintiff, Dominick DiNapoli, a 62 year old disabled veteran brought about this action against the City of New York challenging the revocation of his firearm license and the failure to accommodate his appeal in violation of the Americans with Disabilities Act. The City moved for summary judgment.

Plaintiff was issued a license to possess a rifle or shotgun in 1970. In 2002, his license was revoked due to an arrest where plaintiff was charged with sending threatening correspondence to employees of the US Department of Agriculture. Additionally, plaintiff was evicted from his apartment and homeless for 2 years and failed to inform the NYPD. Plaintiff appealed the revocation of his license in 2002 but the hearing officer upheld the NYPD’s decision due to plaintiff not timely informing the NYPD that he had become homeless and that the prior arrest, even though the charges were dropped, indicated a lack of good moral character required for firearms possession.

In this action, the Court agreed with the previous decision and felt that since the NYPD’s revocation was not based solely on plaintiff’s disability, the City’s motion for summary judgment was granted on his claim that the City discriminated against him in revoking his license. Also, plaintiff’s allegations that defendant did not accommodate his disabilities was not substantiated. The City made reasonable accommodations for plaintiff by holding the hearing in a wheelchair-accessible facility and offering to reschedule the hearing to accommodate plaintiff’s transportation difficulties.

Accordingly, the Supreme Court granted City’s motion for summary judgment and dismissed action.

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McClellan v Majestic Tenants Corporation

Plaintiff began working for Majestic Tenants Corporation as a doorman in 1984 and later became a porter. In 2005, plaintiff was terminated. Plaintiff alleged unjust termination sought reinstatement to his prior position with full back pay, benefits, seniority, and contributions to the benefit funds lost through his union. The arbitrator decided that there was just cause for plaintiff’s termination which led to plaintiff filing an instant action alleging discrimination and harassment based on his race and age.

Defendants assert that plaintiff’s cause of action must be dismissed because collective bargaining agreements between Local 32B-32J and The Realty Advisory Board on Labor Relations Incorporated (RAB) exclusively require that discrimination claims be resolved by arbitration. The Court felt that under current binding precedent, plaintiff’s complaint must be dismissed because his discrimination claims are subject to the mandatory arbitration provisions outlined in the collective bargaining agreement.

Accordingly, the Supreme Court granted motion by defendants for an order dismissing plaintiff’s action.

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A deal between the teachers union and education officials was made to reduce the amount of time that teachers accused of misconduct will spend idling in “Rubber Rooms”. A recent analysis found that taxpayers spend about $65 million a year paying the salaries of teachers accused of misconduct. In order to expedite the processing of cases against teachers, the Education Department is increasing the number of arbitrators from 20 to 28, with 14 devoted strictly to cases of alleged incompetence. The goal of this new deal is to improve fairness and timeliness.

Read full article here.

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