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 Edward Paradiso v Joseph Loeffler

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Village of Ocean Beach denying his application for an increase in his annual compensation. Petitioner is the head of the Village of Ocean Beach Police Department (OBPD) and has one immediate subordinate. When his subordinate received an annual salary increase, petitioner requested the same but was denied. He then commenced an Article 78 proceeding to annul the determination denying his request. His appeal was based on General Municipal Mal 207-m(1) that states, in pertinent part, when the base salary of the permanent full-time police officer of a negotiating unit is increased, the salary of the head of police must also be increased by that same amount. The Supreme Court granted his petition.

The appellants appealed this decision by arguing that petitioner was not covered by GML 207-m(1) because it refers to a unionized police force and the OBPD is not unionized. Therefore, the petitioner was not within the coverage of this statute. The Court agreed with appellants that the salary of petitioner and petitioner’s subordinate would not be covered by a collective bargaining agreement.

Accordingly, the Supreme Court reversed the judgment, confirmed the determination, denied the petition and dismissed the proceeding on the merits.

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Patricia Lewis v New York City Police Department

Petitioner, Patricia Lewis, a retired New York City police detective, commenced this Article 78 appeal to annul the denial of her application for accidental disability retirement (ADR) and to direct respondents to retire her with a line of duty ADR allowance retroactive to the date of her ordinary service retirement. Petitioner worked for the NYPD from 1984 through 2004. Over the course of her service, she sustained multiple line of duty injuries. Among these injuries were injuries sustained while assisting at the World Trade Center site on September 11, 2001. In October 2002, petitioner filed an ADR application to the Medical Board stating that she could not perform her duties due to respiratory problems caused by her work at the World Trade Center.

The Medical Board first considered petitioner’s application in June 2003 and found that the evidence did not prove petitioner was disabled from performing the full duties of a NYC police officer. The Trustees reviewed this decision and upheld the decision to deny petitioner’s ADR. In May 2004, petitioner filed another application for ADR based on her issues with shortness of breath, burning lungs, and nose bleeds. Again, the Medical Board recommended disapproval of petitioner’s applications and the Trustees agreed. In August 2006, the Medical Board reviewed petitioner’s second ADR application for a second time and came to the same conclusion. After the fifth denial, petitioner commenced this Article 78 appeal.

To challenge a disability determination in an Article 78 appeal, the findings of the Medical Board will always be upheld unless it lacks a rational basis or is arbitrary and capricious. As long as the Medical Board can provide evidence to support its decision the Court cannot weigh the medical evidence or substitute their judgment. While the petitioner clearly suffered from some sort of respiratory impairment, as evidenced in the doctors’ reports she provided, the Medical Board’s finding that the impairment was not substantial enough to the level of a disability was supported by independent credible evidence and therefore the Court must defer to the expertise of the Medical Board.

Accordingly, the Supreme Court denied petition seeking to annul respondents’ determination to deny ADR and dismissed the proceeding.

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.

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Mitchell Barandes v New York City Department of Education

Petitioner, Mitchell Barandes, brought about this Article 78 appeal to enjoin the New York City Department of Education from enforcing termination of petitioner, to declare that he had acquired tenure by estoppel, and to order a disciplinary hearing or a name-clearing hearing.

Petitioner’s argument that he had acquired tenure by estoppel was proved false because he had not earned sufficient credits as a substitute teacher to reduce his probationary period. Petitioner’s argument that respondents acted in an arbitrary and capricious manner was also unfounded because he failed to present any evidence to support this allegation. In fact, respondents noted that petitioner had been on notice that his teaching performance was unsatisfactory since December 2007. The decision to terminate petitioner was not in bad faith and was supported by three unsatisfactory observations and an incident of misconduct. Since petitioner was not a tenured employee he is warranted a disciplinary hearing. In regards to the demand for a name-clearing hearing, the materials contained in petitioner’s personnel file are not stigmatizing but instead describe instances of bad judgment or incompetent performance of duties.

Accordingly, the Supreme Court denied petitioner’s motion for an order enjoining respondent from enforcing its determination discontinuing petitioner’s probationary service, denied the petition and dismissed the proceeding.

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.

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Yan Ping Xu v New York City Department of Health

This Article 78 appeal was commenced by petitioner, Yan Ping Xu, to remove an unsatisfactory rating issued to her by respondent, New York City Department of Health, return her to her position and compensate her for back pay and money damages. Petitioner represented herself in this appeal and argued that respondent acted in an arbitrary and capricious manner. Respondents cross-move to dismiss the claim and petitioner cross-moves for permission to file a late notice of claim.

Petitioner worked as a City Research Scientist for New York City Department of Health and Mental Hygiene. She was terminated on March 13, 2008. Petitioner claims she had no warning that her work was unsatisfactory prior to her termination and feels that she was fired in retaliation for bringing to the attention of her supervisor incorrect figures used in a report.

Due to petitioner choosing self-representation, many procedural errors were made including the initial petition being served before it was filed, amended petitions never being filed with the court and no Notice of Claim being filed. Petitioner failed to follow proper procedure for challenging her termination. Prior to filing the Article 78 appeal in Supreme Court, she should have first appealed the performance evaluation with the appeals board and accordingly her petition is premature. Also, petitioner’s failure to file a timely notice of claim within 90 days of her termination date and the fact that she served her initial petition more than 90 days later indicates that the respondent knew nothing of her claim prior to the 90 day deadline.

Accordingly, the Supreme Court denied petitioner’s petition and cross-motion to file a late notice of claim and granted respondent’s cross-motion to dismiss petition.

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.

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Kifan Pak v New York City Department of Education

Petitioner, Kifan Pak, commenced this Article 78 proceeding to review the decision of respondent, New York City Department of Education, terminating him as a probationary teacher. Petitioner pursued an administrative appeal which resulted in the decision of termination being upheld. He then brought about this Article 78 appeal in Supreme Court. Respondents cross-moved to dismiss the petition arguing that it was time barred and the statute of limitations had expired.

Petitioner was informed of his termination by letter dated February 21, 2007. Petitioner immediately pursued an administrative appeal and received the determination to sustain the recommendation of termination by letter dated September 11, 2007. Petitioner then commenced the Article 78 appeal to vacate the decision on January 15, 2008. CPLR Section 217 states that an Article 78 proceeding to challenge an administrative decision must be commenced within four months after the determination becomes final. The internal administrative review did not extend petitioner’s limitation period because it is merely a procedural contractual right and not a constitutional or statutory right.

Accordingly, the Supreme Court granted respondent’s cross-motion to dismiss the petition as time-barred and dismissed the petition.

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.

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