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 Peter Peltonen v Nicholas Scoppetta, Fire Commissiner of the City of New York, the Fire Department of the City of New York and The City of New York

Petitioner commenced this Article 78 appeal to annul the determination of Respondents terminating Petitioner’s employment as an FDNY fire fighter due to cocaine usage. Commissioner Scoppetta reviewed and accepted the recommendation of the Administrative Law Judge (ALJ), terminating Petitioner’s employment after he tested positive for cocaine during a routine drug screening. Petitioner argued that his termination was arbitrary and capricious and that his case was not handled in accordance with FDNY regulations.

Petitioner asserted that his alcoholism and cocaine usage was a result of his service following the attacks on the World Trade Center. Petitioner worked as a fire fighter to help in the rescue and recovery efforts and said the trauma of the daily stressed caused him to seek out a stronger drug than alcohol. Dr. John McCann, a clinical and forensic psychologist, diagnosed Petitioner with Post-Traumatic Stress Disorder (PTSD) and felt that the alcohol abuse and cocaine usage were effects of the PTSD. Petitioner also asserted that he suffered from a “disability” and therefore should not be fired.

Respondents argued that Petitioner’s use of cocaine was occasional and voluntary. Since he was able to exert self-control in the frequency of his cocaine use, his usage was a voluntary act of misconduct. Dr. McCann did not diagnose Petitioner with alcohol or drug dependency. Additionally, Petitioner used alcohol as a teenager and his alcohol use became a problem 2 years prior to 9/11. He also first used cocaine prior to 9/11.

The Court agreed with Respondents assertions that Petitioner’s drug usage was voluntary and felt that Petitioner failed to provide substantial evidence to prove otherwise. Since the purpose of the Court in an Article 78 appeal is to determine whether the action of an administrative agency had a rational basis, the Court found that the ALJ had sufficient evidence of Petitioner’s misconduct and that the penalty of termination was not shocking to one’s conscious.

Accordingly, the Supreme Court denied the petition.

Read more about this Article 78 appeal of a termination.

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 Theodore Tomita v Thomas P. DiNapoli, as Comptroller of the State of New York

Petitioner brought about this Article 78 appeal to review a determination denying his application for accidental disability benefits. Petitioner was a police lieutenant employed by the City of Newburgh Police Department in Orange County. He tripped on a curb after working an overnight shift. Petitioner then filed for accidental disability benefits and was denied. He then requested a redetermination and a hearing. At the hearing, the Hearing Officer ruled in favor of Petitioner and determined that the incident qualified as an accident within the meaning of Retirement and Social Security Law §363. The Respondent then appealed the decision and it was reversed which led to Petitioner commencing this Article 78 appeal.

The Court notes that an accident within the meaning of Retirement and Social Security Law §363 is unexpected and not as a result of an activity performed during normal work duties. The burden of proof is on the Petitioner and since Petitioner admitted to being familiar with the parking lot and that the streetlights had been off other times, he could have reasonably anticipated the hazard. Therefore, Petitioner was injured as a result of his own misstep and not eligible for accidental disability benefits.

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

Read more about this Article 78 accidental disability retirement benefits case.

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 AJK CafE, Inc. v New York State Liquor Authority

In this Article 78 proceeding, Petitioner appealed a determination of the New York State Liquor Authority finding him in violation of 9 NYCRR 48.3 due to employment of an unlicensed security guard. The Liquor Authority imposed a $2,500 civil penalty and an alternative penalty of a 15 day suspension of Petitioner’s liquor license plus a $1,000 bond forfeiture. Petitioner brought about this Article 78 appeal to review the Liquor Authority’s determination.

The Court felt that substantial evidence established that Petitioner was indeed in violation of 9 NYCRR 48.3 in his employment of an unlicensed security guard. Though Petitioner insisted that the employee in quest was only a busboy that was mistakenly observed to be a security guard by the detective he did not offer any admissible proof to support his position. Since the Petitioner failed to present adequate evidence, the Court found no basis to disturb the decision of the Liquor Authority.

Accordingly, the Supreme Court confirmed the determination, denied the petition, and dismissed the proceeding.

Read more about this Article 78 Liquor Authority case.

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 Gina M. Hammond-Timpano v New York State and Local Retirement System

In this Article 78 proceeding, Petitioner commenced an appeal to review a determination of the Comptroller denying her application for disability retirement benefits.

Petitioner was exposed to fireproofing materials twice during the summer of 1992 while working as a stenographer for the Utica City School District. She sought medical treatment for physical maladies including difficulty breathing, burning in her eyes and mouth and swelling in her hands. In 1993, after she began experiencing these symptoms every time she came into contact with other materials and office supplies, Petitioner stopped working permanently.

In 2002, Petitioner applied for disability retirement benefits and was denied. She then requested a hearing and redetermination. The Hearing Officer ruled against Petitioner, stating that she failed to establish permanent incapacitation from performing the duties of her job. The Comptroller accepted the Hearing Officer’s finding which led to the commencement of this Article 78 proceeding.

In her appeal, Petitioner presented medical records from five treating physicians. Two of these doctors opined that she was permanently disabled from her exposure to chemicals but one subsequently stated that she would be able to return to work as long as she did not come into contact with any further respiratory hazards. The other doctor admitted that there was inadequate medical research to prove causation. Respondent provided two independent medical examiners who ruled Petitioner not permanently disabled. The Court felt that since there was conflicting medical evidence, the Comptroller had the authority to weigh the evidence and decide which opinion to credit. Since the Comptroller’s decision was supported by substantial evidence, the Court refused to overturn it.

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

Read more about this Article 78 Disability Retirement Benefits case.

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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