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State Liquor Authority decision modified following Article 78
Cris Place v. NY State Liquor Authority Appellate Division, First Dept 2008 NY Slip OP 09161
The SLA imposed a $1000 bond forfeiture and a $8,500 civil penalty against the Petiitoner after a hearing which found that marijuana use; after-hours drinking; violation of local laws and ordinances and cabaret activity took place at the accused premises. The First Department ruled that there was no substantial evidence to support the marijuana accusation but the other charges were backed by substantial evidence. The Court sent the case back the the SLA for reconsideration of the penalty. The decision can be found here: www.nycourts.gov/reporter/3dseries/2008/2008_09161.htm
Article 78 Battle over Railroad Depot-Chautauqua County
Chatauqua County legislators recently rescinded a tax lien for the Forestville railroad depot which had been held by Aimee Rogers. Ms. Rogers purchased the lien in the hopes of repairing the station. Based on complaints the legislators rescinded the lien. In response Ms. Rogers filed the instant Article 78 and was granted an injunction until the Supreme Court hears the matter. The full story can be found here: www.observertoday.com/page/content.detail/id/514326.html
Article 78 appeal to review denial of variance granted
Matter of Bassano v Town of Carmel Zoning Board of Appeals
An Article 78 appeal was brought about by petitioner to review a determination by the Town of Carmel Zoning Board of Appeals denying petitioner’s application for an area variance. The Supreme Court granted the petition, annulling the determination and directing the variance and all necessary permits be granted for petitioner to construct a single-family dwelling on the premises. The Town then appealed the decision of the Supreme Court.
The original decision not to grant the variance sought by petitioner had no rational basis. The variance would not negatively alter the character of the neighborhood and the benefit sought was unachievable by any other means. Since there was no foreseeable adverse effect on the neighborhood, the Board’s decision to deny petitioner’s application was arbitrary and capricious and without a rational basis.
Accordingly, the Court granted the petition, annulled the determination by the Board of Appeals, and directed that the variance and all necessary permits to construct a single-family dwelling on the premises be granted.
Matter of Bassano v Town of Carmel Zoning Bd. of Appeals (2008 NY Slip Op 09074)
Another Article 78 petition to review denial of accidental disability retirement benefits dismissed
Matter of Joseph Confreda v New York State Comptroller
This Article 78 proceeding was brought about by petitioner, Joseph Confreda, to review a determination of respondent Comptroller denying petitioner accidental disability retirement benefits. Petitioner was employed by the Port Authority of New York and
The burden of proof relies on the petitioner to prove that the injury was accidental. Petitioner testified that he had walked across the plank multiple times during his shift without noticing any snow or ice. In the injury report, petitioner wrote that he “slipped and fell on snow and ice covering [the] plywood”. Since his written statement describes the plank as being ice covered, the Court concluded that petitioner should have been aware of this dangerous condition and been able to anticipate the possibility of falling.
Accordingly, the Court confirmed the determination, without costs, and dismissed the petition.
Article 78 to review denial of accidental disability retirement benefits dismissed
Matter of Gerard O’Brien v New York State Comptroller
This Article 78 proceeding was brought about by petitioner, Gerard O’Brien, to review a determination of respondent Comptroller denying petitioner accidental disability retirement benefits. Petitioner was employed by the Port Authority of New York and
The burden of proof relies on the petitioner to prove that the injury was accidental. Petitioner testified to being aware of the sewer grates presence but that the grate had been covered by plywood and he did not know that on the day of the incident, the grate was uncovered. The Court thus confirmed the previous rulings that the incident was not an accident. The reasoning behind this decision was that since petitioner was aware of the sewer grate the hazard was therefore something petitioner “could have reasonably anticipated”.
Accordingly, the Court confirmed the determination, without costs, and dismissed the petition.
Appeal of Southhold Zoning Change Denied
Zupa v. Zoning Board of Appeals of Town of Southhold Index #29166/06 Appellate Division, Second Department
Zupa appealed Southold's interpretation of the Town Code sect 280-121(A) that the proposed realignment of the dock/marina would not be a change that would render inapplicable the provisions concerning non-conforming uses. The Court held that the Town Board decision was rational and not arbitrary and capricious. The appeal was dismissed. Read the decision here: www.nycourts.gov/reporter/3dseries/2008/2008_08748.htm
Appealing a Character Disqualification from the NYPD
Frequenlty I get calls in my office inquirying about what would disqualifiy a candidate from the NYPD. The NYC Department of Citywide Administrative Services (DCAS) is the personnel office for New York City and they make the rules for applicants for NYC positions. On the DCAS website they list the following list concerning factors that may disqualify a candidate from the NYPD:
The following are factors which would ordinarily be cause for disqualification: Conviction of an offense which indicates lack of good moral character or disposition towards violence or disorder, or which is punishable by one or more years imprisonment. Repeated convictions of an offense which indicate disrespect for the law. Discharge from employment as a result of poor behavior or inability to adjust to discipline. *Dishonorable discharge from the United States Military. Conviction of an offense for Domestic Violence Misdemeanors. *A Felony conviction. Statutory Disqualification (disqualified by law)
A candidate that receives a disqualification from the NYPD other law enforcement or civil service positions can contact my office to see if an appeal would be appropriate:
Toll-Free (888) 998-9984
Law Office of Kevin P. Sheerin
323 Willis Ave, Suite 1
Mineola, New York 11501
Veteran allowed to apply to NYPD despite felony record
Yesterday, Osvaldo Hernandez was granted relief from civil disabilities putting him one step closer to his goal of becoming a
Article 78 appeal against denial of accident disability retirement benefits dismissed
Matter of Stanley Jefferson v Raymond Kelly
This Article 78 proceeding was commenced to annul respondents’ decision denying petitioner’s application for accident disability retirement benefits. Petitioner became a uniformed police officer for the NYPD in 1997 and was assigned to work at the World Trade Center site for some period of time following the September 11 attacks. The petitioner began having symptoms of depression, anxiety, and agoraphobia in 2002 and was granted ordinary disability retirement (ODR) in 2004. Shortly thereafter, petitioner applied for accidental disability retirement (ADR), claiming that his psychological problems were due to the time spent at Ground Zero. The Medical Board unanimously denied petitioner’s application in 2005 which resulted in this Article 78 appeal.
Petitioner argued that the denial of his ADR was arbitrary and capricious. Respondents contend that credible evidence exists showing that petitioner’s disability was not caused by his time assigned to the World Trade Center site but due to his cardiac problems and the passing of his mother. Additionally, petitioner did not file the necessary notice of petition to qualify for the World Trade Center presumption.
In the various medical documents from petitioner’s doctors and mental health care providers there are numerous references linking his anxiety, panic, and depression to the death of his mother and his incipient cardiac disease. Neither of petitioner’s doctors causally linked his psychological ailments to his World Trade Center assignment but instead suggested his condition was caused by other “life changing circumstances”.
Accordingly, the Court denied the petition and dismissed the proceeding.
Article 78 police officer appeal against 40 days suspension denied
Matter of Lou-Ann Elias v Raymond Kelly
This Article 78 proceeding was brought about by Petitioner Lou-Ann Elias to reverse a determination of respondent Police Commissioner finding the petitioner guilt of engaging in prohibited conduct with a punishment of 40 days suspension. Petitioner visited her estranged husband who was growing marijuana plants in his basement. Petitioner admitted that she was aware of an always locked room in the basement and that her estranged husband mentioned the idea to grow marijuana in the basement. These facts along with Petitioner’s use of the garage, located closely to the growing room, where both the smell of marijuana and heat from growing lamps would be noticeable, is substantial evidence that Petitioner’s ignorance of criminal activity was deliberate. The Court feels that the 40 day suspension does not shock the conscious.
Accordingly, the Court affirmed the determination and denied the petition.
Two youths' motion to dismiss complaints against them in personal injury case denied
Regis v. Condoleo
Plaintiff Naomi Regis is seeking to recover damages from the defendant youths, Antonio Condoleo, Christian Wright and Donald Schumacher and their parents for injuries she sustained when she was struck in the face by a model rocket while stopped at a stop sign in
The parents of the youths seek summary judgment dismissing the complaints against them holding them responsible for the actions of their children. Since there was no evidence to prove that any of the parents were aware of their sons having violent predispositions nor did any of them supply the defendants with the model rocket engines, sparklers, or lighters, the parents were granted their motions for summary judgment.
In the three youths examinations before trial, different stories were told and some issues of fact exist regarding the exact sequence of events. It is undisputed that Antonio brought the model rocket/firework devices but it is unclear as to who supplied the sparkler and lighter used to light the model rocket engine that injured the plaintiff. Defendants Christian and Donald claim that their only involvement was to supply the sparklers and the lighter and that they had no part in the actual setting off of the model rocket which struck the plaintiff. Whether or not Antonio acted alone in setting off the model rocket using equipment supplied by Christian and Donald or whether the three youths acted in concert is an issue for the trier of fact to resolve.
Accordingly, the Court denied the motions to dismiss the complaints against Defendants Christian and Donald.
Article 78 appeal of denied mobile food license renewal granted
Matter of Falco v. NYC Department of Health and Mental Hygiene
Petitioner, Michael Falco, brought about this Article 78 proceeding to challenge Respondent’s determination not to renew his mobile food unit license due to his vehicle inspection request being one week late. Falco is an honorably discharged military veteran who was permanently disabled while serving this country. For the past few years, Falco has been earning his living with a food vending machine. Falco filed his renewal application in a timely manner but due to a confusing regulation, he did not initiate the request for his vehicle to be inspectedwithin the specified time frame. Respondent denied his renewal license which led to Petitioner filing this appeal.
For the Respondent to force Petitioner, a disabled veteran, to lose his livelihood for being a few days late is arbitrary and capricious. Respondent’s claim that they do not have the discretion to inspect the vehicle after the six month period has passed is irrational. The decision to deny Petitioner’s license renewal for such a minor mistake is arbitrary, especially considering the laws in place concerning disabled military veterans.
Accordingly, the Court granted the petition and vacated Respondent’s determination to deny Petitioner a renewal license.
Article 75 petition to vacate arbitration in favor of PBA denied
Matter of Town of Wallkill Police Benevolent Association
This Article 75 proceeding was brought about to vacate an arbitration decision that the Town of Wallkill violated the collective bargaining agreement. The issue at hand was whether the Town of Wallkill violated the collective bargaining agreement between it and the Town of Wallkill Police Benevolent Association (PBA) by placing a Town police officer on modified duty and not permitting him to serve overtime following an incident in December 2003. The arbitrator found that the collective bargaining agreement was violated and ordered the police officer be returned to full duty and be compensated for the overtime he was denied. The Supreme Court agreed that vacating the arbitration award would not be warranted since it was not irrational nor did it violate a strong public policy.
Accordingly, the Court ordered the judgment affirmed, with costs.
Decision to permit late notice of claim in lacrosse accident reversed
Matter of Monfort v Rockville Centre Union Free School District
Infant petitioner was running laps around the track at South Side High School in Rockville Centreduring a girls’ varsity lacrosse team practice when she was allegedly “blind-sided by a flying discus”. Petitioner was seeking to impose liability on the school district based on a theory of inadequate supervision. She was granted her petition for permission to serve a late notice upon the District in November 2007. This decision was then appealed.
The infant petitioner failed to submit an affidavit with all the facts in a timely fashion and instead only provided her attorney’s affirmation. The petition was not backed up by any testimony or evidence to prove that the District was aware of the facts of the claim within 90 days of the accident.
Accordingly, the Court ordered the judgment reversed, with costs, and denied the petition.
Police cadet class dropped in an effort to cut costs
Mayor Michael Bloomberg has decided to cancel January’s class of police officers in an effort to bridge billion-dollar deficits. This decision will affect more than 1,000 cadets. The next class will begin in July. This is only one of several extreme measures that Mayor Bloomberg is putting into effect to guide
OATH judge dismisses charges against Environmental Police Officers
DEP v. Nuccio and Williamson OATH Index #s 2360/08 &2361/08 (9/26/08)
Response to 911 call without supervisory approval was proper.
Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval. This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement. When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.
On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir. Respondent's were 2 to 3 miles away at the time of the call. No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call. They called their base and asked the officer assigned to desk duty to get the supervisors approval. Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.
ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action. Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order. eg. officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero; failure to inspect justified not operating vehicle. HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively.
Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.
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Tavern wins Article 78 case to get back license taken after isolated drug use
In July 2006, a police officer noticed someone smoking marijuana in a tavern in
Albany Manor argued that the state agency did not have substantial evidence to prove that the isolated incident of reported marijuana usage amounted to a violation of §106(6) and that the penalty was arbitrary and capricious.
The Appellate Division noted that the bar had eight security guards on duty on the night in question patrolling the premises to ensure that no one was smoking. The bar also had openly displayed “no smoking” signs throughout the tavern and no ashtrays. There was no evidence that the petitioner had any knowledge of the act and nothing indicating that this was an ongoing condition.
Accordingly, the panel annulled the authority’s revocation of the bar’s liquor license.
Article 78 seeking reinstatement of pistol license denied
Matter of Leto v. Mulvey
Petitioner, John Leto, brought about this Article 78 case to get the Court to annul the Nassau County Police Department’s (NCPD) decision to revoke his pistol license and reinstate his license. Leto was issued a Nassau County Pistol License in July of 2004. He lost his pistol license after a series of altercations with his ex-girlfriend that resulted in his arrest and an order of protection being issued.
On November 6, 2004, Petitioner followed his ex-girlfriend, Donna Composto, in his motor vehicle and repeatedly cut her off in traffic. He then called her on her cell phone and made inappropriate remarks. When Ms. Composto reached her destination, Petitioner harassed her in the parking lot, inside at the event she was attending, and after the event when Ms. Composto returned to her vehicle, he threatened her with a gun. Ms. Composto complained to the NCPD resulting in Leto’s arrest, an order of protection against him, and a suspension of his pistol license. In March 2005, Petitioner violated the order of protection and was arrest and charged with second degree criminal contempt.
Petitioner’s pistol license was revoked in March of 2007. Petitioner denied any wrong doing and submitted into evidence a letter from Ms. Composto recanting her prior accusation that Leto displayed a firearm on the evening of November 6, 2004. Petitioner argued that no weight should be given to the allegations of his ex-girlfriend due to the recantation letter and that he otherwise had a clean record. Petitioner also relied heavily on Schneider v. Mulvey where the Court vacated the NCPD’s revocation of a pistol license because petitioner was unable to cross examine a witness at his hearing. The Court argued that Petitioner was not denied the right to confront and cross examine Ms. Composto at the hearing. She was not in court because she was out of town. Petitioner could have given her a subpoena to appear in court or sought an adjournment.
Accordingly, the Court found the respondent’s determination to revoke Petitioner’s pistol license to be rational and neither arbitrary nor capricious.
