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

At least four former NYPD officers are currently suing the Department over their termination after receiving false positives from hair drug testing. One of these individuals is Roxann Hayes, a former NYPD Detective who tested positive for cocaine in a hair drug test. NYPD’s zero-tolerance drug policy resulted in Ms. Hayes losing her job and pension. According to her lawyer, Ms. Hayes’ sample was subject to cross-contamination and this error has caused her not only her job but also the ability to find a new employment.

In August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. This led to a hearing at the Board of Collective Bargaining in 2006 and eventually was heard in Supreme Court December 2007. The end result was that the NYPD must bargain with the police unions before implementing changes in drug-testing procedures.

Unfortunately, even after the ruling, former police officers who were affected by the new, now invalid, hair testing are still out their jobs. Some are suing for reinstatement.

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Matter of Antonio Cardona v City of New York Civil Service Commission

Petitioner, Antonio Cardona, brought about this Article 78 proceeding to vacate his disqualification for appointment as a Police Officer with the New York City Police Department (NYPD).

Petitioner passed the written portion of the exam and was placed on the eligible list for a position as a police officer but then failed three pure tonal hearing tests and was subsequently disqualified. Petitioner filed an appeal and submitted two medical reports. Both doctors stated that they did not feel that Mr. Cardona’s mild hearing loss in his left ear would interfere with his ability to perform the duties of a police officer. The Civil Service Commission reviewed this case and affirmed the NYPD’s decision to disqualify Petitioner. Petitioner then filed this Article 78 appeal to review the determination.

Petitioner argued that the pure tonal hearing test administered by the NYPD was not rationally related to the duties of a police officer and that his disqualification violated New York Executive Law § 296, prohibiting discrimination against an applicant based on a disability.

The Court disagreed with Mr. Cardona’s first argument and felt that the use of a pure tonal test was related to police officer functions in that is serves to set a hearing standard for applicants. In response to Petitioner’s accusations of discrimination, the Court agreed. Since Petitioner did have a disability under Executive Law § 296, the NYPD needed to prove that his hearing loss would prevent him from performing in a reasonable matter. NYPD would need to conduct an individualized test and since they merely relied on the results of three pure tonal hearing tests, they only proved Petitioner suffered from a hearing disability, not that he was unable to perform the duties of a police officer. Plus the reports from Petitioner’s two doctors and seven affidavits from current and retired NYPD officers all stated that he would be an effective Police Officer.

Accordingly, the Supreme Court granted petition and remanded this matter to the New York City Police Department to make an “individualized” determination consistent with Executive Law § 296.

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Matter of MHC Greenwood Village NY, LLV v County of Suffolk

In this Article 78 case, Petitioner appealed from an order of the Supreme Court declaring Local Law No. 1534 (2006) of Suffolk County valid in all respects. Petitioner, MHC Greenwood Village NY, LLC, owns and operates a retirement community in Suffolk County. Residents of Greenwood Village own their homes, lease the land, and pay a “Base Residency Charge” which is a monthly fee for the lease of the land.

Several residents attended a public hearing and voiced concerns that a significant portion of the common areas of Greenwood Village were in disrepair. Also, residents were having issues selling their homes because petitioner was raising the Base Residency Charge for the new homeowner. In response to these complaints, Suffolk County Legislature passed Local Law No. 1534 (2006) with the goal of regulating the operations of planned retirement communities by protecting the community residents.

Petitioner then commenced an Article 78 appeal contending that the Local Law was invalid because it violated the Equal Protection Clause of the Constitution, the County Legislature exceeded its power and the Local Law was preempted by State and Federal legislation. The Supreme Court ruled against petitioner and declared the Local Law valid. Petitioner subsequently brought about this Article 78 appeal.

The Supreme Court agreed with the Court’s determinations that the Local Law did not violate the Equal Protection Clause, and that it was not preempted by State or Federal legislation but found that several portions of the law should have been declared invalid because the County Legislature did not have the authority to enact those portions of the Local Law.

Accordingly, the Court modified the order by deleting the provision declaring valid Section 3(A), Section 4(F), Section 7(A), Section 7(C), Section 12(A), and Section 12(B) and affirmed the order as modified without costs or disbursements.

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Ambrosino v Village of Bronxville

In 2007, the plaintiff, Joseph Ambrosino, was terminated from his job with the Village of Bronxville Department of Public Works (DPW). Plaintiff’s Union then filed a grievance which was denied by the DPW Superintendent, the first step of the grievance process, and then denied by the Village Administrator, the second step. The plaintiff then skipped the third and final step of advisory arbitration and went straight to commencing an instant action against the Village and the DPW Superintendent alleging discrimination and breach of contract. The Supreme Court dismissed his petition on the grounds that he did not exhaust his administrative remedies.

Plaintiff then commenced this appeal. The Court found that the original dismissal of the petition on the grounds of failure to exhaust administrative remedies was only partly acceptable. While plaintiff did fail to complete the entire grievance process he was not given the opportunity to plead his case concerning the allegations of discrimination. Therefore the second cause of action was properly dismissed but the first cause of action should not have automatically been denied due sua sponte.

Accordingly, the Court modified the order by deleting the provision, sua sponte, dismissing the first cause of action and affirmed the order as modified without costs or disbursements.

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The Bloomberg administration has proposed a $500 million three-district Department of Sanitation garage for Hudson Square. Community leaders recently enlisted the help of advertising and marketing firm Saatchi & Saatchi to help them convince the Bloomberg administration to accept a smaller community alternative. This alternative, the Hudson Rise plan, would accommodate a two-district Sanitation garage, create rooftop green space and cost $200,000,000 less than the Department of Sanitation project. The Sanitation project was granted approval from the City Counsel last November but Bloomberg agreed to hold off on construction for six months to allow the community time to suggest alternatives.

If the megagarage project is chosen over the smaller Hudson Rise plan, project opponents plan to challenge the Sanitation Department in court by filing an Article 78 appeal.

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The Town of Carroll has been fighting against the expansion of the Jones-Carroll Landfill for years. In 1989, the landfill was opened as a construction and demolition landfill. In 1996, the owners of the Jones-Carroll Landfill were granted a permit for further expansion of the landfill from 2 acres to 3 acres. When the town heard that Sealand Waste of Rush, NY was planning to purchase the landfill and expand it to encompass the entire 49.5 acre property, residents began active opposition.

When the town discovered that Sealand Waste intended to turn the 50 acres of land into a non-putrescible landfill and accept asbestos, oil-contaminated soil, and medical wastes, the opposition became more vocal. The town board unanimously passed an amendment to the town’s zoning laws eliminating landfills from operating by special-use permit and allowing no further expansion of landfills.

Jones-Carroll’s attorneys then commenced an Article 78 appeal to the Supreme Court. The Court ruled in favor of the landfill which resulted in an appeal of the Article 78 decision by the town’s attorney. After five years of town board meetings and active opposition, the Appellate Division ruled against the Supreme Court’s decision and declared the local law reasonable and rational.

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The Supreme Court dismissed the Soho Alliance’s appeal challenging the city’s approval of the Trump Soho condominium-hotel. The Court agreed with the Board of Standards and Appeals’ decision to uphold the Department of Buildings permit for the hotel. The not yet completed building is 449 feet and between 43 and 46 stories tall. The Soho Alliance plans to take their case to the Appellate Division charging that the project is overbuilt by several thousand square feet.

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The Saratoga Springs City Council decided they were willing to spend up to $20,000 to defend itself against a lawsuit alleging the violation of multiple laws with the approval of a 33,000-square-foot recreation center. Fourteen members of The Friends of South Side Park filed a motion in Supreme Court alleging that the City Council and Planning Board violated the state Environmental Quality Review Act, city zoning code and City Charter by approving the indoor recreation center. Plaintiffs want the project stopped and since the city has no insurance coverage for Article 78 suits they are forced to pay out of pocket for the legal defense.

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A Supreme Court Justice decided to extend a temporary restraining order barring Colonie’s personnel chief, Michael Foley, from considering the appeals of two demoted highway supervisors for another ten days. The stay was first issued in December 2008 after the town sough to freeze the process arguing that the supervisors had already appealed their demotions and that Foley had a conflict of interest.

The Town Board demoted these two men in December 2008 and they subsequently appealed to Foley and commenced a lawsuit on the town in Supreme Court alleging that the public works commissioner and not the Town Board had the authority to discipline them. Originally, the supervisors received suspensions without pay for two months which the town then changed to demotions with pay cuts.

The judge wants to prevent Foley from taking any action regarding the appeals until after he has a chance to hear arguments on both the pending lawsuits.

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Matter of Dennis Timmons v Michael C. Green, Monroe County District Attorney

Petitioner commenced this Article 78 proceeding to compel respondent to provide documents sought pursuant to the Freedom of Information Law (FOIL). Respondent then made a motion to dismiss the petition which the Supreme Court denied. Respondent argued that petitioner incorrectly sent his FOIL requests to the Monroe County District Attorney’s Office. Even though the official FOIL representative for Monroe County may be the Department of Communications, the DA’s office is still an agency that is subject to FOIL and therefore has the burden of responding to FOIL requests. The Court also rejected respondent’s argument that the petitioner failed to exhaust all administrative remedies and that the proceeding is untimely. Petitioner did, in fact, commence the proceeding within four months of the denied FOIL requests. However, the Court agreed with respondent’s contention that the court erred in granting the petition without first allowing respondent the opportunity to serve and file an answer.

Accordingly, the Court modified the judgment vacating those parts granting the petition and granted responded 20 days to serve and file an answer.

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U.A. Plumbers and Steamfitters, Local No. 22 v City of Niagara Falls

Petitioner commenced an Article 78 appeal to compel respondents to determine whether a plumbing company was violating provisions of the Plumbing Code of respondent City of Niagara Falls. The City then moved for dismissal of the petition. The Court denied the motion and granted petition, mandating respondents conduct a public hearing on the matters included in the petition. Respondents then commenced this appeal.

The remedy of mandamus can only be used as a remedy when a clear right to the relief sought exists. Since the petitioner failed to cite any statute, rule, regulation or case law requiring respondents to investigate petitioner’s allegations, no right to the relief sought was established.

Accordingly, the Court reversed the judgment, without costs, granted the motion and dismissed the petition.

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Kittredge v. Planning Board of the Town of Liberty

Petitioners brought about this proceeding to appeal a judgment of the Supreme Court dismissing petitioners’ Article 78 appeal to review determinations of respondent Planning Board of the Town of Liberty issuing a negative declaration of environmental significance and granting the application of respondent CR Menderis, LLC for preliminary subdivision approval.

In May of 2006, CR Menderis, LLC (Menderis) submitted an application for approval to subdivide a 143.2-acre plat into 27 lots for single family homes to the Planning Board of the Town of Liberty (the Board). When a public hearing was held, numerous surrounding landowners expressed concerns regarding the proposed development’s impact on the surrounding environment. The Board then required Menderis to conduct studies to address the raised environmental concerns. After receiving the results of the studies, the Board issued a negative declaration of environmental significance and granted preliminary subdivision approval to Menderis.

Petitioners then commenced an Article 78 appeal to annul the decision arguing that the negative declaration violated the State Environmental Quality Review Act (SEQRA) and the subdivision approval violated Town laws and codes. The Supreme Court upheld the Board’s decisions which resulted in this appeal.

The Court agrees with petitioners’ contention that the Board did not closely investigate every aspect of potential environmental impact from the project. While the Board’s studies involving wetlands and storm water impact fulfilled its obligations to take the requisite hard look, the studies concerning the presence of endangered or threatened species were inadequate. The Board based its decision on two letters from the Department of Environmental Conservation that merely stated that their databases showed no record of endangered species in the area but the absence of records would not definitively establish that such species do not exist. Therefore, the Board’s determination that there would be no significant impact on wildlife was arbitrary and capricious.

Additionally, the Court agrees with petitioners’ contention that the Board improperly failed to hold a public hearing regarding the proposed subdivision following its issuance of a negative declaration.

Accordingly, the Court reversed the judgment, without costs.

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Boakye-Yiadom v Roosevelt Union Free School District

Plaintiff brought about an action to recover damages for breach of contract, promissory estoppel, and defamation. The Supreme Court denied granted defendants’ motion to dismiss the complaint and plaintiff commenced this appeal.

Education Law requires that any complaint against the school district or board of education must be presented to the governing body of said district or school within three months after the accrual of the claim. Therefore, a claim against a school district on an action alleging breach of contract or promissory estoppel based on a contract must be served in a timely manner and since plaintiff failed to serve the notice of claim within three months, the Court properly dismissed the claim.

Accordingly, the Court affirmed the order, with costs.

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