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 Richard Benedetto v Thomas DiNapoli, as State Comptroller

This Article 78 appeal was brought about to review a determination of the Comptroller denying petitioner his application for accidental disability retirement benefits. Petitioner was a corrections officer who injured his back in 2004 by falling on stairs in a correctional facility. Following the accident, petitioner did not return to work. In 2005, petitioner applied for accidental disability retirement benefits and was denied. Petitioner then requested a redetermination but the Hearing Officer upheld the denial at his hearing and the Comptroller adopted this decision. Petitioner then commenced this Article 78 proceeding to challenge the determination.

In his report following the accident, petitioner stated that he slipped while escorting a prisoner down stairs to the facility’s basement. Later on, petitioner said that his accident occurred when he slipped on a sheet of ice on the stairs. Regardless of the fact that these two stories were slightly different, the petitioner bore the burden of proving that the injury was accidental and the Comptroller’s decision must be upheld if supported by evidence. The Comptroller has the authority and discretion to determine if the incident was a sudden and extraordinary event not related to the ordinary risks of performing routine duties. In this case the Comptroller determined that the injury was the result of a misstep related to ordinary duties.

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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Howard Norton v. Town of Islip

In this Article 78 case, the plaintiff Howard Norton purchased a house in 1986 that had been converted into a two-family dwelling which the Town of Islip certified as a “legal nonconforming two-family dwelling”. When the plaintiff decided to rent out the house two years later, he was denied a rental permit because the Town claimed the house had lost its “legal nonconforming” status after being left vacant for a year. Plaintiff then commenced an Article 78 proceeding in Supreme Court to challenge the permit denial. The Supreme Court denied the petition but refused to determine whether the house was a legal nonconforming two-family dwelling or not.

After the conclusion of the Article 78 hearing, the Commissioner of the Town’s Department of Building and Engineering made notations of the house’s certificate of occupancy describing the denial of the rental permit and concluding that the house’s “non-conforming use” had been “lost due to non-use in excess of one consecutive year”. Plaintiff was not informed of these notations nor was he given an opportunity to challenge them.

In 1997, the Town commenced a criminal action against the plaintiff for using the house as a two-family dwelling. The Town charged him with violating the Town Code based on the notations made by the Commissioner on the certificate of occupancy. The plaintiff then brought about an action against the District Court claiming his Due Process rights had been violated. Plaintiff claimed that the Town’s attorneys committed malicious prosecution and abuse of process in connection with the criminal proceeding against him. The individual defendants then moved for summary judgment in District Court alleging they were entitled to absolute or qualified immunity. The Court granted the individual defendants the qualified immunity with respect to plaintiff’s federal-law claims since they believed that the house’s nonconforming use had been lost based on the notations on the certificate of occupancy and had probable cause to prosecute the plaintiff for a Town Code violation. Since the District Court did not discuss whether the individual defendants were entitled to immunity with respect to the plaintiff’s state-law claims, the Court must remand this issue to the District Court to address the confusion.

Accordingly, the Court reversed the District Court’s order and remanded the cause for further proceedings with this order.

Read more about this Article 78 housing 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 Jeffrey Baker v Poughkeepsie City School District

Petitioner, a Business Manager for the Poughkeepsie City School District, brought about this Article 78 proceeding to review a determination of the School District adopting the recommendation of a hearing officer which found petitioner guilty of eight charges of misconduct and incompetence and terminated his employment.

In July 2007, petitioner was charged with eight counts of misconduct and incompetence and subjected to a disciplinary hearing where two members of the Board testified. The hearing officer found the petitioner guilty of all the charges brought against him and recommended termination. The members of the Board then issued a final determination terminating the petitioner’s employment which resulted in petitioner bringing about this article 78 proceeding.

The two Board members that testified at the disciplinary hearing were personally involved in the matter and should have disqualified themselves from reviewing the recommendation and being involved in the decision of this matter. Also, the petitioner is entitled to pack pay and benefits regardless of whether he is terminated or not.

Accordingly, the Court granted the petition, annulled the determination, with costs, and remitted the matter to the Board of Education for a review of the findings of the hearing officer and a determination of the back pay amount and benefits owed to the petitioner.

Read more about this Article 78 termination 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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 The New York Times reports that Mayor Bloomberg has recommended streamlining the pistol license application process by having the NYPD Pistol License Division open one night a week and providing quicker approvals or denials of applications.  Read the article by clicking here  www.nytimes.com/2010/05/15/nyregion/15guns.html To view the rules click here nyc.gov/portal/site/nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.jsp

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The Village of Montgomery and Town of Mount Hope must stop using in-house police ranks and start hiring police supervisors from a competitive list. Orange County has decided not to certify its payroll if they do not comply with Civil Service Law. After a local paper identified village officers as chiefs and sergeants, the Personnel Commissioner began investigating the county’s use of police titles and their non-compliance with state Civil Service Law. The new Commissioner feels that the departments need a supervisor who holds a rank of sergeant or higher and that a police officer should not be filling a supervisory rank. The Village of Montgomery is currently interviewing candidates for a part-time police chief and an additional supervisor.

Read more about this Civil Service Law 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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Judge Alice Schlesinger has stopped the scheduled toll booth clerk layoffs and will meet this morning with attorneys to discuss the issue.  www.nydailynews.com/ny_local/2010/05/06/2010-05-06_judge_hits_mta_with_restraining_order_barring_layoffs_of_475_token_booth_clerks.html

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