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 James Cotter v Board of Education of Garden City Union Free School District Board of Education

Back in 2008, I wrote about a Nassau County Supreme Court Decision (J. Feinman) which held that the Garden City School District did not have to defend or indemnify a teacher involved in a fight with another teacher while they were grading Regent’s exams. (You can read that post here.)

The Second Department reversed the prior determination and ordered the school district to defend the teacher who was the target of a civil suit.

This Article 78 case was brought about to review the determination of respondent denying petitioner’s request to defend and indemnify himself in an action pending in Supreme Court. The Supreme Court originally denied the petition and dismissed the motion which resulted in this Article 78 appeal.

Petitioner was involved in a physical altercation with a fellow teacher while grading Regents examinations in the school library. Petitioner was in charge of a group of teachers and directed his co-worker, Philip McCarthy, to sit down and continue grading papers. McCarthy then threw water at petitioner and petitioner proceeded to place him in a head-lock. After this incident, McCarthy filed a civil action against petitioner to recover damages for the assault and respondent refused to defend and indemnify the petitioner.

The Court feels that it was unreasonable for the respondent to deny petitioner’s request due to the circumstances of the altercation. The incident occurred on school grounds while the petitioner and McCarthy were on duty grading exams and therefore could not be considered “wholly personal”.

Accordingly, the Supreme Court reversed the judgment, granted the petition, annulled the determination and directed respondent to defend and indemnity petitioner in the subject action.

Read full article here.

To read about more Article 78 cases 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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Matter of Ethan Mirenberg v Lynbrook Union Free School District Board of Education

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Lynbrook Union Free School District Board of Education which affirmed a determination of the Lynbrook School Superintendent accepting the recommendation of a hearing officer finding petitioner guilty of disciplinary charges. Petitioner filed an appeal with the Supreme Court which was denied on the ground that he failed to exhaust his administrative remedies prior to pursing action in the Supreme Court.

The petitioner did appeal the Board of Education’s decision to the Commissioner of the New York State Education Department but that appeal was not yet resolved when he filed his appeal in Supreme Court and thus he failed to exhaust an available administrative remedy. Additionally petitioner failed to establish that there was an applicable exception to the administrative remedies doctrine.

Accordingly, the Supreme Court dismissed the proceeding without prejudice and affirmed the judgment denying the petition.

To read about more Article 78 cases 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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Back in July of 2007, we blogged about some issues that Long Beach was having with provisional appointments in civil service positions. Long Beach is not alone in their struggles, recently Cleveland has been experiencing a similar situation. Much like Long Beach, Cleveland is now fighting a legal battle to determine whether the hiring of civil service employees was done fairly. Cleveland’s Judge McGinty ruled in favor of the employee organizations against the charter amendment that would allow hundreds of municipal workers to keep their jobs without taking any qualifying civil service exams.

You can read more about Cleveland’s civil service feud here.

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