Posted on August 25, 2008 by Kevin Sheerin

Article 78 challenging termination from FDNY results in Court ordering proof that petitioner's doctor's note was considered prior to termination

 

Adam R. Duchinsky v. Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York

This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary firefighter with the Fire Department of the City of New York. Petitioner was hired as a “provisional” EMS-EMT for the FDNY in 2006. Prior to being hired he disclosed that in 2000 he sustained an injury to his left knee and undergone arthroscopic surgery to repair the damage. In March 2007, Petitioner resigned from this position and became employed as a “probationary” firefighter. Again, Petitioner disclosed his previous injury and subsequent surgery.

Petitioner sustained an injury to his right knee during training in April of 2007, returned to work after a short medical leave but then was placed on light duty due to pain until mid-July. In August of 2007, Petitioner injured his left knee in another training exercise. This injury led to Petitioner’s termination as a probationary firefighter less than a month later. Petitioner then submitted this Article 78 to review the termination under the “arbitrary and capricious” standard.

Prior to his termination date, on August 23, 2007, Petitioner’s doctor, Dr. Levy, wrote a note that stated there was no reason that Petitioner couldn’t perform his duties once his knee sprain healed, that his previous injury was in no way related to the more recent one, and that he should be able to “complete a full career if at least twenty years as a New York City firefighter”. This doctor’s note is significant because it included an MRI that showed “no problems” and the Bureau of Health Services doctor, Dr. Kelly, never mentioned this information in his determination that Petitioner was “medically unqualified to perform the duties of a probationary firefighter”. Since Dr. Kelly relied heavily on the operative report for Petitioner’s 2000 surgery performed by Dr. Levy, logically he should place equal value on the August 23 Doctor’s Note.

Accordingly, the Supreme Court ordered Respondents to deliver to the court affidavits and other evidence to prove when the August 23 Doctor’s Note was received and whether and by whom it was considered prior to Petitioner’s termination.

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Posted on August 22, 2008 by Kevin Sheerin

Motion to dismiss Article 78 seeking issuance of building permit denied

 

Albano v. Town of Islip

Petitioner brought about this Article 78 proceeding to reverse the decision of the Islip Town Engineer and gain a building permit. Petitioner applied to the Town of Islip Board of Appeals in 2006 for an area variance to build a single family dwelling on the premises. In 2007, the Board granted the application with the condition that the applicant could not build until clearing it with the Engineering Department. The Town Engineer expressed concern that construction would cause problems with drainage and flooding and have adverse effects of the environment thus denying the permit application.

Petitioner then commenced this Article 78 in order to annul the Town Engineer’s decision arguing that it was arbitrary, capricious and an abuse of discretion. Petitioner annexed an affidavit from a licensed engineer providing an amended plan with a proposed superior drainage system.

Respondents argue that petitioner failed to state a claim upon which relief is granted, that mandamus is not appropriate, that petitioner’s statute of limitations expired, and that petitioner failed to name a necessary party. The Court agreed with respondents that mandamus relief is not available in this case. In regards to the statute of limitations, the Court found that the proceeding was timely commenced. The Court also disagreed with respondents’ argument that petitioner’s failure to join the Building Division of the Department of Planning and Development as a necessary party should mandate dismissal of action.

Accordingly, the Supreme Court denied respondents’ motion to dismiss the petition based upon nonjoinder of a necessary party.

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Posted on August 20, 2008 by Kevin Sheerin

Parent's action to dismiss complaint to Child Protective Services dismissed

 

J.H. v. County of Nassau

Plaintiff, J.H., brought about this action against the defendants, Jericho High School, Jericho Union Free School District, et al., claiming that their communications to Child Protective Services (CPS) were motivated by malice and revenge and were not in good faith. According to Plaintiff, he was about to file a complaint with the school Superintendent when the school reported him to CPS. Plaintiff’s son, M.H., was learning disabled and having an exceptionally hard time in his foreign language class and his father was trying to get a language exemption for M.H.

The school psychologist, Danielle Largotta, testified that on November 7, 2003, M.H. came to her office visibly upset and said that he had an argument with his father and did not want to go home because he feared a physical altercation. He was planning on running away to Florida. Also, Ms. Largotta stated that M.H. told her that two years prior, his father threw a baseball at his head, missed his head, and the baseball went through the wall.

The plaintiffs, in opposition, did not have any proof that the school was acting with malice or revenge when they contacted CPS. No physical evidence or facts exist to prove their claims and mere conclusions and speculation is not sufficient for a jury to infer malice.

Accordingly, the Supreme Court granted defendants motion and dismissed plaintiffs’ action.

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Posted on August 13, 2008 by Kevin Sheerin

Retired schoolteacher's appeal to change health insurance to family plan granted

 

Douglas Bower v Board of Education, Cazenovia Central School District

Petitioner retired from his teaching position in 2004. In 2006, he got married and requested to change his health plan from individual coverage to family coverage so that his wife would be covered. The district refused and said that a retired teacher is not allowed to change his coverage. Petitioner appealed this decision and the Court granted his motion. Respondents then brought about this appeal.

Respondents argued that petitioner was not allowed to change his coverage following retirement. According to the “ENROLLMENT CHANGES” section of the agreement “[y]ou may request a change from individual to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse.” This section never indicates that the “you” does not include retired employees.

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

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Posted on August 1, 2008 by Kevin Sheerin

Former McDonald's employee files discrimination complaint

Lisa Craib, a 43 year old woman with Asberger’s syndrome, worked at McDonald’s for 21 years. Last March, Craib was told she was “no longer part of the team” and fired. She, along with two other disabled employees, was fired two days after the Shattuck Avenue McDonald’s was sold to Nick Vergis. The previous owner, Mike Maddy, was sympathetic to her disability and contacted California’s Employment Development Department to enlist a job coach to aid Craib with her “performance issues”. Craib filed a discrimination complaint last week under the Americans with Disabilities Act and protested in front of the Downtown Berkeley McDonald’s on Tuesday. If the case is heard in federal court, Craib could be eligible for compensatory damages. 

Read entire article here.

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