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

New York is holding a Civil Service exam for certain management jobs for the first time in three years. In March 2009, tests for Professional Careers and Professional Careers (Diversity Management) will be held. If you are interested in either of these tests, you must possess a bachelor’s degree or plan to earn one before August 31, 2009 and must register by January 5, 2009. For more details, visit the state Civil Service website here.

College seniors and recent graduates interested in how the city government works should check out New York City’s Urban Fellows Program, sponsored by the Department of Citywide Administrative Services. This nine-month fellowship provides the opportunity to work in various city agencies and the mayor’s office. Individuals interested should submit their applications prior to January 9, 2009. More information can be found on the DCAS website.

For anyone who enjoys a good laugh and supporting children with autism, there will be a comedy show featuring retired city cops and firefighters on January 10, 2009 at The Jeanne Rimsky Theater in Port Washington, Long Island at 7:00 pm. Tickets range from $30 to $75 and all proceeds go to the ELIJA School in Levittown. For more information contact Tim Dwyer at (917) 612-8439.

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Matter of Jason Longton Jr. v. Village of Corinth

Petitioner Jason Longton Jr. brought about this Article 78 proceeding to review the determination of the Village of Corinth Board of Trustees terminating his employment as a police officer. Petitioner began working as a police officer in 2003. In 2004, he was charged with violating multiple department rules and suspended. The most serious charge was insubordination involving his investigation of an individual after receiving a direct order by the Chief of Police not to do so. Following a hearing, petitioner’s employment was terminated but the determination was later annulled due to an issue with improper stenographic transcription. A second hearing resulted in a recommendation for termination which the Board of Trustees enforced. Petitioner then commenced this appeal.

In August 2004, petitioner quarreled with a restaurateur, Trevor Downie, during a traffic stop. Downie complaints about petitioner’s conduct were then forwarded to the Chief of Police. Petitioner then confronted Downie at his restaurant resulting in Downie threatening a lawsuit against the Village of Corinth. Further altercations between petitioner and Downie led to the Chief of Police ordering petitioner to stop any investigation or contact with Downie. Petitioner ignored the orders and continued investigating Downie secretly.

Petitioner argued that the penalty of termination was excessive. The Court feels that petitioner, being an employee of short duration, deliberately disobeying the orders of the Chief of Police constitutes conduct at odds with the strict discipline necessary to perform the duties of a police officer and therefore the penalty was not shocking.

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

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Matter of Shelter Island Association v Zoning Board of Appeals of Town of Shelter Island

This Article 78 appeal was brought about to challenge the decision of the Zoning Board of Appeals of the Town of Shelter Island granting respondent John Meister’s application for an accessory apartment variance. Supreme Court denied petitioners’ motion for leave to amend the petition to add additional petitions and granted respondents’ motion to dismiss the proceeding. Petitioners then commenced this appeal.

The originally named petitioners include three individuals and a homeowner association. The Court feels that they lack standing to commence an instant proceeding because they were unable to establish that any of the individual petitioners or members of the association would suffer any environmental injury different from what would affect the public at large. The petitioners made a cross-motion to amend the petition and add petitioners who met the criteria for standing but the Court found that even with the added petitioners their allegations of increased traffic and the effect on the water table from additional tenants would be insufficient to establish such standing.

Accordingly, the Court affirmed the judgment, with costs.

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Matter of McElligott v Nassau County Civil Service Commission

Petitioner, Maurice McElligott, brought about this Article 78 proceeding to review the determination of the Nassau County Civil Service Commission psychologically disqualifying him from probationary employment as a police officer. The Supreme Court ruled in favor of petitioner, ordering Nassau County Civil Service Commission to produce the written protocol used to determine passage or non-passage of petitioner’s MMPI-2 test. The Commission then appealed this decision.

In 2003, petitioner applied to the Nassau County Civil Service Commission (the Commission) for a position as a Nassau County police officer. He passed the written exam and other tests but was required to schedule an appointment for a psychological interview following his completion of the Minnesota Multiphasic Personality Inventory II (MMPI-2). After completing the psychological interview, petitioner was then directed to make an appointment with a psychiatrist. Petitioner was then informed that he failed to meet the psychological requirements of the position and therefore was psychologically disqualified. Petitioner submitted two independent psychological evaluations and numerous personal recommendations and requested the Commission reconsider his disqualification. The Commission reaffirmed its determination and petitioner commenced this Article 78 appeal finding the disqualification arbitrary and capricious and based upon a subjective reaction to his personality rather than based on any objective criteria.

The Commission explained in its answer that the first stage of the psychological screening process includes a group administration of the MMPI-2. Applicants that fall within the accepted range are not subjected to further psychological testing while applicants with scores outside the normal range must complete an in-person interview with a clinical psychologist. According to his affidavit, the psychologist who completed petitioner’s interview said that contrary to the claims of the Commission, all candidates’ MMPI-2 results are reviewed by a psychologist and then interviewed. The Court found the statements by the Commission and the staff psychologist to be in opposition and directed the Commission to produce the actual protocol used to determine whether petitioner’s scores were within the normal MMPI-2 range.

The Commission argued that the courts order constituted an attempt to interfere with its discretion to determine the qualifications of police officers. The Court disagrees and feels that the evidence demanded, the written protocol for determining whether a given candidate’s MMPI-2 score fell outside of a pre-determined normal range triggering the need for an in-person psychological evaluation, was relevant.

Accordingly, the Court affirmed the decision, without costs or disbursements.

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Matter of Bridge & Tunnel Officers Benevolent Association v Triborough Bridge & Tunnel Authority

In January 2005, the Bridge and Tunnel Officers Benevolent Association changed its policy and required employees to substitute paid annual leave for FMLA leave. Prior to this, petitioner allowed employees to choice whether to take FMLA leave paid or unpaid. The Triborough Bridge and Tunnel Authority then filed a grievance arguing that the new requirement violated its members’ rights under the collective bargaining agreement.

The grievance went to arbitration where the arbitrator sustained the grievance but left it to both parties to come up with a compromise that would take into account the needs of both, and retained his jurisdiction to provide a solution if they failed at doing so. In May 2006, the arbitrator directed that respondent could require an employee to charge up to 25% of his accrued annual vacation leave for FMLA leave purposes before giving him the option of taking unpaid FMLA leave. This decision was then appealed and modified in Supreme Court which then led to this review.

The Court impermissibly substituted its judgment and interpretation of the collective bargaining agreement by modifying the arbitrator’s May 2006 determination. The arbitrator’s decision was not irrational and thus should not have been modified.

Accordingly, the Court reversed the decision modifying the May 2006 arbitration award without costs, denied the petition, and dismissed the proceeding.

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Matter of Vazquez v New York City Housing Authority

Petitioner, Anita Vazquez, commenced this Article 78 appeal against the New York City Housing Authority (NYCHA) to review the determination terminating her public housing tenancy on the ground of nondesirability. Petitioner was charged with chronic rent delinquency and later non-desirability based on charges of unauthorized use of an ATM card. The decision to termination petitioner’s tenancy was in response to her guilty plea to this felony offense.

The penalty imposed on petitioner was disproportionate to the offense considering that petitioner is current in all rent due, has a source of income from SSI and public assistance, and has paid full restitution to the complaining witness and complied with the conditions of her probation. Additionally, petitioner has no prior criminal record and her criminal conduct was an isolated occurrence. Terminating petitioner’s tenancy considering her specific circumstances is shocking to the judicial conscience and sense of fairness.

Accordingly, the Court vacated the penalty of termination and remanded respondent for imposition of a lesser penalty.

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Eric Devendorf, a star shooting guard for the Syracuse University Orangemen basketball team may have to file an Article 78 petition to get a one semester suspension overturned.  Devendorf was found to have violated the Syracuse University Student Code when he hit a female student after a traffic incident.  Members of the basketball team were leaving a campus party when they came upon a car driven by Kimberly Smith another student.  Ms. Smith said Mr. Devendorf struck her in the jaw. 

William Sullivan, Devendorf's attorney, said that his client would file an appeal of his one semester suspension on 12/17/08.  If the appeal is not granted Mr. Sullivan said that he would file an Article 78 petition and seek a stay of the suspension during the course of the Article 78 in the hopes Mr. Devendorf continue to play ball until the case is resolved.  Click here for details.

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Matter of Anthony Jackson v New York City Housing Authority

Petitioner, Anthony Jackson, commenced this Article 78 appeal against the New York City Housing Authority (NYCHA) to gain succession rights to the public housing apartment formerly leased to his deceased mother.

Petitioner argues that the decision was arbitrary and capricious because the building manager failed to act on his mother’s request to add him to the lease in 1993. He also contends that the NYCHA knew about and implicitly approved his residency when they took no preventative action against him. NYCHA opposes with the argument that even if the Management Office had considered Ms. Jackson’s permission request, Petitioner would still have been found ineligible for occupancy because he did not reside in the apartment for at least one year prior to his mother’s death. Additionally, NYCHA explains that Petitioner was deemed ineligible for public housing due to prior violent criminal convictions.

Since the rules and regulations concerning succession rights support the agency’s determination that Petitioner was ineligible for public housing because of his criminal record and the decision of the NYCHA was neither arbitrary nor capricious, the Court must uphold the decision.

Accordingly, the Court denied and dismissed the petition.

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A group of residents in Stony Point are not happy about the proposed construction of a ShopRite supermarket and strip mall on Key Fries Drive. They filed an Article 78 proceeding with the Supreme Court to appeal the special permit granted by the Town Board to the developer.

The residents argue that the town wrongly interpreted its code on the light industrial district, overriding the county Planning Department’s disapproval by the Town Board’s supermajority. Also, they are concerned over the possibility of worsened traffic conditions.

The defendants then filed a motion to dismiss because the petitioners did not name the property owner as a party of the lawsuit nor did they exhaust their administrative remedies available to them before going to the Supreme Court when they felt the town’s actions were inappropriate. They could have first voiced their complaints with the Zoning Board of Appeals.

According to the plaintiffs, the town’s response is based on procedural issues instead of focusing on the environmental and legal issues that the residents want the court to consider.

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Matter of Transport Workers Union, Local 100 v New York City Transit Authority

An Article 75 appeal was brought about to vacate an arbitration award. The New York City Transit Authority then appeals from an order of the Supreme Court granting the petition and directing the reinstatement of Edward Miller to the position of track specialist with back pay and lost benefits.

Since there is a policy supporting arbitration and discouraging judicial interference with either the process or its outcome in this State, an arbitration award should not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds the limitations of an arbitrator’s power. In this case, the arbitrator did not exceed her power nor was the award irrational. The award was consistent with the evidence provided, the federal regulations governing drug testing for transit employees, and the collective bargaining agreement between the parties.

Accordingly, the Court reversed the order, with costs, denied the petition to vacate the arbitration award, and dismissed the proceeding.

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Matter of Tappan Cleaners v Zoning Board of Appeals of Village of Irvington

An Article 78 appeal was commenced to review a determination of the Zoning Board of Appeals of Irvington (ZBA) upholding the issuance of a building permit and granting application of 53 Main Realty, LLC a variance to use combustible solvents in its laundry business. The Supreme Court granted the petition and annulled the determination of the ZBA leading to this Article 78 appeal.

When reviewing the initial ruling of the Supreme Court, the Court found that they erroneously determined that the petitioner had standing to challenge the determination of the ZBA because the petition failed to allege any clear noneconomic concerns. Instead, petitioner’s challenge was hinged on a fear of increased business competition. This type of interest is not protected by relevant zoning regulations. Though Petitioner claimed the building permit and variance would cause potential safety issues and reduce neighboring property value, these claims were conclusory and speculative and not sufficient to establish standing.

Accordingly, the Court reversed the judgment, with one bill of costs, confirmed the determination, denied the petition, and dismissed the proceeding.

Matter of Tappan Cleaners v Zoning Bd. of Appeals of Vil. of Irvington (2008 NY Slip Op 09806)

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Matter of Timothy Kennedy v New York State and Local Police and Fire Retirement System

Petitioner Timothy Kennedy filed this Article 78 appeal to review the determination of the Comptroller denying his applications for performance of duty and ordinary disability retirement benefits. In 2000, after working as a police detective for 12 years, petitioner suffered from various heart, gastrointestinal and psychological problems causing him to stop working. Petitioner then filed applications for ordinary disability retirement benefits and performance of duty disability retirement benefits. His applications were denied and then at the hearing, the Hearing Officer concluded petitioner was not entitled to either benefits because he was not permanently incapacitated from performing his duties. Petitioner then filed this Article 78 appeal.

The Comptroller is allowed to determine which opinion to credit in the case of conflicting medical opinions by different medical experts. In this case, conflicting opinions existed regarding whether petitioner’s psychological problems and irritable bowel syndrome prevented him from performing his duties as a police detective. Since one medical expert provided evidence that petitioner did not suffer from permanent incapacitation due to his afflictions, the Comptroller has sufficient evidence to support his decision.

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

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Matter of McGillicuddy’s Tap House, Ltd. v New York State Liquor Authority

This Article 78 proceeding was brought about to review a determination of the New York State Liquor Authority finding petitioner McGillicuddy’s Tap House in violation of the Alcoholic Beverage Control Law. Petitioner was charged with permitting a licensed premises to become disorderly following an altercation that occurred in petitioner’s bar. Respondent suspended petitioner’s liquor license for 15 days and imposed a fine of $6,500 which resulted in this Article 78 appeal seeking to annul the determination.

The evidence supporting respondent’s claim that petitioner did not take proper action or allowed the altercation to continue was hearsay and seriously controverted by the testimony of petitioner’s head bouncer, Joseph Santiago. One witness, Marshall Ross, claimed that two altercations occurred and that the individuals involved in the first altercation returned to the bar after being thrown out and resumed the altercation. Ross did not testify at the administrative hearing and therefore was not available for cross-examination. The head bouncer, Santiago, was only aware of one altercation which he responded to promptly by ejecting one group involved and immediately calling the police. The police corroborated this story and vouched for Santiago’s reputation.

Since the only evidence provided by respondent was hearsay and this evidence was seriously controverted by the sworn testimony given on petitioner’s behalf which was subject to cross-examination, the hearsay evidence was not substantial to support respondent’s determination. Without Ross’ testimony, no evidence exists to prove that petitioner was aware of and ignored escalating arguments between patrons or allowed a fight to continue for a long period of time prior to calling the police. Additionally, still photographs taken from a videotape of the bar supports Santiago’s story that the altercation was isolated and brief and not foreseeable.

Accordingly, the Court annulled the determination, without costs, and granted the petition.

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Matter of Momot v Rensselaer County, Hudson Valley Community College

Petitioner, John Momot, commenced this appeal to review a determination by the Supreme Court dismissing his petition finding no probably cause to support claim of unlawful discriminatory practice relating to education.

Petitioner was a student at Hudson Valley Community College. He filed a complaint with the State Division of Human Rights alleging that Hudson Valley discriminated against him by engaging in a conspiracy with various government agencies to use young female students to tempt him, distort his reputation, and dismiss him from the college. The Division determined that petitioner’s allegations were unfounded and absurd. Petitioner then commenced a proceeding to challenge the determination. The Supreme Court dismissed the petition and this appeal ensued. The Court did not find the determination to be arbitrary and capricious and found no evidence to support petitioner’s accusations.

Accordingly, the Court affirmed the decision.

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Matter of Kennedy v Zoning Board of Appeals of Village of Patchogue

Petitioner brought about this Article 78 to review the judgment of the Supreme Court denying petition to review a determination of the Zoning Board of Appeals of the Village of Patchogue (ZBA).

Respondent, Chris Peppard, was granted a frontage variance by the ZBA to construct a single-family dwelling. The variance required him to have “substantially commenced” the construction within one year after the variance was granted. Petitioner, Peppard’s neighbor, requested the ZBA to stay further issuance of permit renewal because the previously granted variance expired. The ZBA determined that Peppard had in fact complied with the zoning code provision because he obtained a building permit within one year after the variance was granted.

Petitioner then commenced an Article 78 proceeding to review the ZBA’s decision which the Supreme Court denied. Petitioner then appealed the Court’s ruling in this proceeding. The Court recognizes that a zoning ordinance allows for interpretation of its requirements by a board of appeals and that unless unreasonable or irrational, the ZBA has authority to interpret requirements as they see fit.

Accordingly, the Court affirmed the judgment, with costs.

Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Patchogue (2008 NY Slip Op 09601)

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Patrolemen’s Benevolent Association of City of Long Beach, Inc. v City of Long Beach

The City of Long Beach appealed from a decision of the Supreme Court ruling in favor of plaintiff, Patrolemen’s Benevolent Association of the City of Long Beach, Inc. (PBA), converting the matter from an Article 78 to an action, granting the motion for summary judgment directing specific performances of stipulations and agreements, and declaring these stipulations and agreements legally binding and enforceable.

The stipulations and agreements concerned three grievances by the PBA regarding sick leave retirement computations, night differential pay calculations, and a disciplinary action brought against 17 of its members. After converting this matter from an Article 78 to an action, the Supreme Court declared the stipulations and agreements legally binding and enforceable between the parties. The City of Long Beach then commenced this appeal.

The Court found that City’s arguments that the stipulations and agreements required approval by the City Counsel to bind the parties to be without merit.

Accordingly, the Court dismissed the appeals from the orders, affirmed the judgment, and awarded plaintiff with one bill of costs.

Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach (2008 NY Slip Op 09573)

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A public records expert, hired by the owner of Saratoga Springs’ largest home, filed a lawsuit against the city for not providing him with requested records concerning the mansion’s assessment. The mansion owner’s lawyer, Mark Glaser, requested information about the assessment of the home, filing a Freedom of Information Law request to find out how much the city spent to assess the property. While the city provided access to some records, they were not complete and did not answer Glaser’s question. The city’s attorney feels that the Article 78 appeal is being filed in order to “harass the accounts office”.

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A group of Wilmington residents are threatening a lawsuit if the proposed town house development is approved. The real estate company, First Columbia, applied to the zoning board of appeals for a density variance to build their proposed 10 acre, 36-unit development. The land-use code only allows a maximum of 20 units on 10 acres.

The owners of the adjacent property are strongly opposed to this project and have organized public hearings and sent letters to the town board. If the variance is granted, they plan on filing an Article 78 appeal. First Columbia has submitted revised plans reducing the number of units from 36 to 33. The unhappy residents are willing to accept the legally allowed 20 units but will file an appeal if the project is approved for a higher number.

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Seabrook v City of New York

Petitioner, Norman Seabrook, brought about this appeal to challenge the Supreme Court decision to dismiss his complaint. Employees are not allowed to consult with a union representation after a question is posed and before an answer must be given. The purpose of this policy is to prevent coaching and to encourage truthful responses during an interrogation. The policy does not deprive the employee of his right to representation by his union.

Accordingly, the Court affirmed the order dismissing the complaint, without costs.

Seabrook v City of New York (2008 NY Slip Op 09471)

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Tardif v Town of Southold

Plaintiff, John Tardif, brought about an action to recover damages for age discrimination in this appeal of the Supreme Court decision granting defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleged that the Town of Southold and the Town’s police department did not appoint him as a police officer due to discrimination on the basis of his age. Plaintiff argued that he had “the best qualifications” and “the number one test score” on the police officer examination.

Defendants argued that they did not discriminate against plaintiff due to his age but that the reason they did not hire him was because he submitted deceptive responses in his police officer application. The defendants thus established that they had a legitimate, nondiscriminatory reason for not hiring plaintiff. Plaintiff failed to raise triable issues of fact concerning whether he was deprived of his constitutional right to due process, whether he was entitled to a name-clearing hearing, whether he was deprived of a protected liberty interest, and whether he was denied equal protection.

Accordingly, the Court affirmed the order granting summary judgment dismissing the complaint, with costs.

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Matter of Seery v Waterfront Commission of New York Harbor

Petitioner, William Seery, brought about this Article 78 appeal to review the decision of Waterfront Commission of New York Harbor denying his application for registration as a longshoreman and revoking his temporary registration. The Court ruled that respondent had the authority to deny petitioner’s application and revoke his temporary registration solely on the grounds of his existing felony conviction. With this prior conviction, the Court did not need to consider the question of whether petitioner’s presence at the waterfront was a danger to the public peace or safety. The imposed penalty was not shocking to one’s conscience.

Accordingly, the Court dismissed the petition, without costs.

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Matter of Sunter v. David

This Article 78 appeal was commenced by an incarcerated petitioner, Male Sunter, to challenge the decisions of the New York City Police Department (NYPD) and the New York County District Attorney’s Office (DA) denying his request for Freedom of Information (FOIL) documents.

Petitioner requested 88 documents from the DA’s office. The DA denied his request asserting that these documents were exempt from disclosure due to possible judicial interference and the DA’s inability to locate said documents. Petitioner then brought about an Article 78 appeal to obtain the FOIL documents. The Court finds this appeal must be denied as untimely because it was not filed within the 30 day time limit.

Petitioner also requested 68 items from the NYPD. The NYPD provided petitioner with some of the documents requested but denied others as exempt. Petitioner then appealed this determination. NYPD moved to dismiss the petition, claiming that the documents were exempt due to possible interference with petitioner’s pending appeal. The Court denied NYPD’s motion to dismiss on this ground. The NYPD also argued that the proceeding was barred by the statute of limitations but the Court ruled that the proceeding was timely filed within four months from the date petitioner received the determination.

Accordingly, the Court denied the petition as to respondent District Attorney and denied the cross-motion by NYPD and directed NYPD to serve petitioner a Verified Answer.

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