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

Matter of Michael A. Ciacciullo v. Police Commissioner of the City of New York

The decision for this Article 78 case was rendered in 2006. In 1992, petitioner was placed on ordinary disability retirement as a New York City Housing Authority police officer due to a psychological condition related to job stress. In 1998, petitioner sought reinstatement with the New York City Police Department (NYPD). Petitioner did not work while on retirement. In 1999, the New York City Employee Retirement Systems medical board determined petitioner was no longer disabled and referred him to the Department of Citywide Administrative Services (DCAS) for reinstatement.

According to the regular NYPD screening process, petitioner was referred to a psychologist for evaluation. The psychologist found petitioner to be unfit for the position of police officer due to continued issues with stress tolerance and the possibility of a relapse of his disabling psychiatric symptoms. Petitioner was notified of his psychological disqualification in December 2000. He then appealed the decision to the New York City Civil Service Commission. Prior to the hearing, petitioner underwent a second psychological examination with the same conclusion of psychologically unfit.

At the hearing, the Civil Service Commission reversed the NYPD’s unfitness determination and ordered petitioner reinstated with the reasoning that the evidence did not indicate petitioner suffered from any psychological disorders. Petitioner then commenced this Article 78 proceeding to compel his reinstatement while DCAS filed a cross-petition to annul the Commission’s decision.

The Supreme Court transferred the petitions to the Appellate Division which unanimously annulled the Civil Service Commission’s determination concluding that the Commission applied the wrong standard of review and erroneously failed to grant deference to the NYPD’s determination. The matter at issue was whether the Commission’s reinstatement determination was rational and while there may not have been evidence that petitioner was psychologically disabled there also was no evidence that, given his background and decade long lack of employment, petitioner was fit for the stress of police work. DCAS provided medical evidence of petitioner’s future unfitness while petitioner failure to offer proof future fitness.

Accordingly, the Supreme Court affirmed the judgment of the Appellate Division, with costs.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Norgrove v. Board of Education of the City School District of NYC

This Article 78 proceeding was brought about by petitioner, a tenured mathematics teacher of 28 years, to annul determination of respondents, Board of Education of the City School District of New York, terminating his employment. Petitioner is also seeking retroactive reinstatement with full back salary.

In December 2006, the Board of Education advised petitioner via hand-delivered letters that a serious allegation was made against him and that he was reassigned to Region 8 Human Resources. In May 2007, petitioner received another hand-delivered letter entitled “Notice of Charges” (“First Notice”) informing him of the nature of the complaint being filed against him. The Board of Education also sent this letter via certified and regular mail addressed to petitioner. According to petitioner, the address respondents used was old and he moved in 2003. Later that month the Board of Education mailed petitioner a Second Notice at the address they had on file. In the Second Notice respondents advised petitioner that he had 10 days to request a hearing. Petitioner asserts that he never received this notice since it was not sent to his correct address and therefore he was unable to submit a timely request for hearing.

In October 2007, the Chairperson of the Panel for Education Policy wrote a letter to petitioner detailing the events occurring since the charges in May, the Panel’s findings and indicating petitioners’ termination. Petitioner was then hand-delivered a letter stating he had been terminated. Petitioner immediately informed his union representative who contacted the Board of Education to request a hearing but the request was denied. Petitioner then filed a Notice of Claim in January 2008 and commenced the instant Article 78 proceeding in February 2008.

Petitioner argues that since he did not receive the notice regarding his right to a hearing, the Board of Education’s termination of his employment without the due process hearing deprived him of property rights in his tenured position and was arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of his rights. The Court agrees because the Board of Education had an obligation to take additional steps to effect notice after the certified mail to petitioner was returned unclaimed.

Accordingly, the Supreme Court granted the petition, annulled respondents’ determination terminating petitioner’s employment, and ordered respondents to reinstate petitioner with full salary and benefits retroactive to November 26, 2007.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Tuesday night, members of the Midstate Regional Emergency Medical Services Council voted to deny the city of Utica’s application for a certificate of need that would have allowed it to continue responding to medical calls with ambulances. The council feels that Utica failed to prove that a need exists for the city ambulance service.

The city has 30 days to appeal this decision and the Mayor plans to appeal right away. The appeal would be filed with the state Bureau of Emergency Medical Services of the state Department of Health. If the state agrees with the decision made by the regional council then Utica’s next course of action would be to file an Article 78 appeal in state court. Utica officials feel that their ambulance service provides a continuity of care that is not present with the private ambulances. Another benefit of the city ambulance service is that it generates an average of $540,000 in profit yearly for the city.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Petitioner, Carol Nolett, brought about this appeal to challenge her termination by the Board of Education of the Greater Johnstown City School District. Petitioner has been a teacher in this district since 1990 when she received a probationary appointment in the tenure area of remedial reading. Ms. Nolett gained tenure in 1993 in the tenure area of remedial reading and has been teaching “Remedial Reading – Academic Intervention Services” (AIS) since 2000.

During the 2007-2008 school year, petitioner and three other teachers taught AIS. According to petitioner, she had the most seniority of the four teachers in the “tenure area” and alleged that one teacher had taught AIS for only five and a half years while the other taught for only three.

In June of 2008, the board voted to abolish one position in the tenure area of remedial reading and selected petitioner as having the least seniority among the teachers in that tenure area. Petitioner argues that the board incorrectly calculated her seniority and that she has more seniority than the other two teachers. She appealed this decision, requesting to be reinstated as a full-time tenured teacher in the tenure area of remedial reading.

According to respondents, there is no such tenure area in AIS and that petitioner only taught reading within that program. Additionally, respondents assert that petitioner failed to name and serve the other teachers who she claims to have seniority over. The Court agrees that the appeal must be dismissed for failure to join the necessary parties whose rights would be adversely affected by a determination in favor of petitioner.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 The Northgate Plaza has fallen to disrepair. Once a home to big name stores such as J.C. Penny and Woolworth’s, this shopping plaza in Greece, New York’s biggest draws are now a Hallmark Store, a Citizen’s Bank, and a Big Lots. Northgate’s owners have looked to Wal-Mart to bring the shopping center back to life and Wal-Mart has agreed to build a “supercenter” in the plaza. This construction would require much of the existing plaza to be knocked down and a handful of small businesses to be evicted. Some local residents are not happy with these plans and have formed Residents Against Wal-Mart (RAW). They insist that Wal-Mart will erode the character of their neighborhood.

The Greece Town Planning and Zoning Board approved the plans to build the new Wal-Mart and the Zoning Board of Appeals followed suite. In retaliation, RAW has filed an Article 78 proceeding in Supreme Court. Since ZBAs do not have the authority to review zoning regulations and Northgate Plaza is zoned for the commercial use that Wal-Mart would fall under that category, RAW has the difficult task of appealing the ZBAs interpretation of existing zoning laws. The only way to do this would be to prove that “commercial use” under the existing law would be violated by the presence of a Wal-Mart Supercenter.

Therefore, RAW only has two routes to impose its will on the Northgate Plaza to keep out the new Wal-Mart and they have already failed at the more effective option. Their best chance would have been to elect anti- Wal-Mart town board members who would have appointed anti- Wal-Mart planning board and ZBA members. The last option would be to use their position as property owners as a source of authority whose rights to reasonable use of their property would be adversely affected by the presence of Wal-Mart.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Roslyn Rosenfeld has been selling civil service test books for 55 years now at her Civil Service Bookshop at 89 Worth Street in Lower Manhattan. The bookstore offers a wide range of test preparation manuals for every civil service exam imaginable from the more common jobs like police officer and fire fighter to budget examiner and fingerprint technician. Ms. Rosenfeld is worried that she may have to move her shop due to the landlord possibly taking the building in a different direction. Business wise, her shop is doing well since the civil service exams and constantly being given and people come in to buy practice tests and guide books.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In East Hampton, a group of neighborhood residents have banded together in opposition to a structure that they feel will tarnish the surrounding area. They have filed an Article 78 appeal to challenge the town’s Architectural Review Board (ARB) and Planning Board’s approval of the application.

The proposed building has already been awarded LEED status (Leadership in Energy and Environmental Design) by the US Green Building Council as well as a commendation from the Peconic branch of the American Institute of Architects for the design’s environmental consciousness and long-term sustainability. The proposed structure features recycled removable cedar shingles that can be rotated to mitigate the effects of weathering over time and a botanical garden on the roof to insulate the offices and absorb storm water.

The issue that opposing neighbors have with the construction of this building is its proposed location, directly across the street from the historic Sarah Lester House and Barn. This 250 year old homestead is being awarded historic designation by the Town of East Hampton and being restored using town funds. Those in opposition feel that the proposed new-age structure will be incongruous with the surrounding neighborhood. The neighbors’ lawyer feels that the Planning Board did not fully review their concerns and neglected to consider the total impact of the proposed building, specifically the Lester property, prompting the residents to file an Article 78 against the ARB and Planning Board challenging the board’s finding that there will not be any adverse affects on the neighborhood.

Read article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Oyster Bay Associated Limited Partnership v Town Board of Town of Oyster Bay

This Article 78 appeal was commenced to review a determination of the Town Board of the Town of Oyster Bay denying petitioner’s application for a special use permit. The Supreme Court reversed the Town Board’s order and granted petitioners’ motion directing the issuance of a building permit and petitioners’ motion to compel the Town Board to adopt the findings made by the Town Environmental Quality Review Commission in 2000.  The original findings of the TEQR Commission were favorable to petitioners but then the Town Board instructed the Commission to revise its initial findings.

This is the third appeal in the litigation involving the proposed construction of a 750,000 square foot shopping mall in Syosset, arising from petitioners’ applications to the Town Board for a special use permit and site plan approval. The petitioners commenced this Article 78 hearing to annul the Town Board’s determination as arbitrary, capricious, and not supported by evidence in record. The Supreme Court vacated the Town Board’s denial of petitioners’ application in 2002. In 2003, the Supreme Court granted petitioners’ motion for judgment and then reversed the order in 2005 finding that the decision did not mandate the issuance of a special use permit. In 2007, the Supreme Court denied petitioners’ motion to compel the Town Board to issue a special use permit for an 860,000-foot-shopping mall. In an attempt at resolution, the Town Board determined it would consider petitioners’ mitigation proposal for a 750,000-square-foot shopping mall. The petitioners then moved to compel the Town Board to adopt the original TEQR Commission’s findings from 2000, issue a special use permit, and process and review petitioners’ proposed site plan. In 2008, Supreme Court granted petitioners’ motion.

 The Town Board then appealed and the Court reversed the order saying that the Court erred in determining the Town Board’s request that petitioners prepare an SEIS was arbitrary and capricious. The request was proper and to direct the Town Board to process and review the site plan with all due haste deprived them of the right to meaningfully consider a revised site plan for the 750,000-square-foot-shopping mall.

Accordingly, the Supreme Court reversed the order as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs and denied petitioners’ motion.

Read article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Councilman Vincent Gentile feels that city traffic agents are unfairly ticketing Bay Ridge drivers in order to generate revenue. In this fiscal crisis, the increase in the budget is in traffic enforcement personnel. There have been multiple instances of ticketing excess recently. In one case, an individual playing Santa Claus was ticketed while on his horse-drawn carriage meeting with children. Other examples include the ticketing of a Good Samaritan who stopped to rescue an injured woman and a senior citizen at a dialysis center who parked to pick up his wheelchair bound wife.

Gentile has information sheets with steps for getting fines reduced as well as a list of violations eligible for fine reductions. To obtain these documents you can stop by his office at 8703 Third Avenue or call (718) 748-5200.

Read full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link