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 Tracy Wolak v Thomas DiNapoli, as State Comptroller

This Article 78 proceeding was brought about to review a determination of the Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner began working as a police officer for the Pelham Manor Police Department in 1990. Two years later, she was assigned to the K-9 unit where she worked until she was involved in an incident in 1999. While participating in a training exercise, petitioner was bitten by a patrol dog on her unprotected bicep instead of the protected portion of her forearm. As a result, petitioner suffered nerve damaged causing her to be unfit to return to full duty as a police officer.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits. The performance of duty disability retirement benefits were awarded but the accidental benefits were denied. The Hearing Officer upheld the denial and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

In order to qualify for accidental disability retirement benefits, the injury must arise from a sudden and extraordinary event not related to the ordinary risks of performing routine duties. Petitioner was participating in a training exercise that was part of her ordinary duties that involved risks and the manner in which she was injured was not outside of the normal risks associated with the training.

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

Read more about this Article 78 accidental disability retirement benefits case 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 Enide St. Lois v New York City Employees’ Retirement System and the City of New York

In this Article 78 case, petitioner, a 42-year-old pediatric Registered Nurse, sought a judgment annulling the Board of Trustees (Pension Board) for New York City Employees’ Retirement System (NYCERS) which denied her application for disability retirement. Petitioner sustained on-the-job injuries to her neck and right shoulder area in 2004. She returned to work in 2006 but then went back on sick leave later that year. She was then terminated due to her inability to perform her duties as a staff nurse. Petitioner then applied to NYCERS for disability retirement. The Medical Board recommended denial of her application to the Pension board which adopted the recommendation. Petitioner then submitted a renewed application with additional medical reports from four physicians. The Medical Board and Pension Board again denied petitioner’s application claiming that the evidence did not prove that petitioner was disabled from performing her work duties. Petitioner then commenced this Article 78 proceeding.

As in all Article 78 proceeding, the Court can only determine whether the action of an agency had a rational basis or was arbitrary and capricious. In this case, the Medical Board’s recommendation lacked a rational basis. The report never provided any explanation for the decision to deny petitioner’s application. Additionally, the Medical Board ignored evidence presented by both petitioner’s doctors and their own doctors that indicated petitioner had lost sensation in her right hand and had limited range of motion in her spine which would clearly prevent her from performing the physical duties of her job. The Medical Board also only considered tests and reports that supported the denial and ignored any evidence to the contrary. Therefore, the Medical Board and the Pension Board’s determination was unsupported by any credible evidence and must be annulled.

Accordingly, the Supreme Court granted the petition, annulled the denial of petitioner’s application for disability retirement, remanded the instant matter to the New York City Employees’ Retirement System for a new medical report and findings, and ordered a new determination by the Pension Board.

Read more about this Article 78 disability retirement case 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 Idella Abram v New York State Division of Human Rights, City of Buffalo and Buffalo State Police Department

Petitioner brought about this Article 78 proceeding to annul a determination of the New York State Division of Human Rights (Division) which ruled that she failed to establish that respondents discriminated against her based on a disability or retaliated against her based on her filing of a complaint with the Equal Employment Opportunity Commission (EEOC). Petitioner was a 19 year veteran of the Buffalo Police Department (BPD) with a long-standing animosity between her and her supervisor Lieutenant Guy Zagara. In May 2003, petitioner filed a complaint with the EEOC against Zagara who learned of the complaint later that summer. In September 2003, petitioner was injured when she hit her knee with the door of a patrole vehicle. She applied for injured on duty status (IOD) but was denied. Petitioner was allegedly reinjured in November while subduing an unruly man. Again, petitioner filed for IOD status and was denied, mainly due to a report by Zagara asserting that he was at the scene of the accident and did not see petitioner engaging in any action that could have resulted in an injury.

Petitioner then filed a complaint with the Division. After a hearing the Administrative Law Judge determined that the petitioner failed to prove a prima facie case of either discrimination or retaliation and therefore dismissed the complaint. The Division adopted this decision and the petitioner then filed this Article 78 appeal.

Review of an administrative decision is limited to consideration of whether the determination was supported by substantial evidence. The Court felt that contrary to petitioner’s contentions, the determination was supported by substantial evidence and must be upheld. While the petitioner established that she was disabled, she failed to meet the burden of proof that she could perform the essential functions of her job with reasonable accommodation and the employer is not obligated to create a new light-duty position for a disabled employee. In respect to the retaliation claims, since several months passed between the filing of her EEOC complaint and the denial of her IOD status applications, the Court felt no causal connection could be established.

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

Read more about this Article 78 discrimination retaliation case 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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Develop Don’t Destroy, Inc. and Prospect Heights Neighborhood Development Council (Brooklyn), Inc. v Empire State Development Corporation and Forest City Ratner Companies, LLC

In these Article 78 proceedings, petitioners are challenging a modified general project plan for the Atlantic Yards Project in Brooklyn, a massive, publicly subsidized, mixed-use development project which will include an 18,000 seat sports arena for the New Jersey Nets and 16 high rise buildings for commercial and residential use. Petitioners argue that Empire State Development Corporation (ESDC) violated the State Environmental Quality Review Act (SEQRA) by not preparing a Supplemental Environmental Impact Statement (SEIS) based on the proposed changes to the project and that ESDC violated the New York Urban Development Corporation Act (UDCA) by not assuring that a plan is in place to alleviate the issue that ESDC previously found at the site.

Courts should not second-guess agency decision making unless it is arbitrary, capricious, or unsupported by the evidence. Since the lead agency ESDC felt that an SEIS was not necessary to address the changes made after filing the SEQRA findings statement, the Court must deny petitioners’ challenge. ESDC’s elaboration of its reasons for using a 10 year build-out and for not requiring an SEIS was not irrational as a matter of law and therefore should not be disturbed.

Accordingly, the Supreme Court denied the petitions of Develop Don’t Destroy (Brooklyn), Inc. and Prospect Heights Neighborhood Development Council, Inc. and denied the motion for preliminary injunction.

Read more about this Article 78 case 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 Albert D’Agostino v Thomas DiNapoli, as State Comptroller

Petitioner in this Article 78 case is an attorney who worked part time as counsel for several municipalities and school districts in addition to maintaining a private law practice. In 2000, he retired from municipal service and began receiving public retirement funds. In April of 2008, the State Comptroller changed the regulations for New York State and Local Employees’ Retirement System regarding the classification of professional municipal service providers as employees or independent contractors. Under the new regulations, petitioner’s enrollments in the Retirement System were invalidated and he was told he needed to return over $600,000 of retirement benefits that he had received.

Petitioner then commenced an Article 78 appeal seeking immediate reinstatement to the Retirement System alleging improper retroactive application of the new regulations and violation of his due process rights. The Supreme Court granted his petition and dismissed the determination to terminate petitioner’s pension benefits and membership in the Retirement System and ordered respondents to pay accrued arrears in petitioner’s pension. Petitioner then appealed the decision because all of his grounds were not granted relief. Since an appellant must be aggrieved in order to file an appeal, the Court ruled that the appeal must be dismissed. Petitioner was granted the ultimate relief that he sought and therefore cannot be aggrieved.

Accordingly, the Supreme Court dismissed the appeal, without costs.

Read more about this Article 78 retirement benefits case 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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