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 Johnson v Town of Amherst

In this Article 78 case, petitioner sought to annul the determination of the Town of Amherst terminating his employment for failure to meet the residency requirement of the Town Code. Employees are required to be domiciliaries of the town which means they must have a permanent home in Amherst. Respondents presented evidence at the hearing which established that petitioner’s family lived in a home in Elba, New York. Additionally, petitioner listed this address in Elba on his income tax forms and admitted that he had no intention of moving to Amherst and only established residency with the Town to comply with the requirements of his employment. Therefore, the Court must agree with the decision of the Town of Amherst that petitioner is a domiciliary of Elba and thus the Town’s decision is supported by substantial evidence and must be upheld.

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

Read more about this Article 78 employment 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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Click here to download DWI EBOOK   civilservice.sheerinlaw.com/uploads/file/dwi ebook.pdf

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Lisa Colangelo of the New York Daily News recently wrote about the issue of provisional workers in New York City. Over two years ago, the city was ordered to reduce the number of provisional employees in the workforce. The Department of Citywide Administrative Services has developed a five-year plan to reorganize civil service titles and give additional exams. Provisional employees are hired when the city needs to fill a position but lacks a list of candidates who have passed the exam for that position. These employees should then be subjected to a test for their job within nine months of being hired but this does not always happen. Sometimes when individuals take the test, they are not able to pass and lose their provisional job. The city is working on improving this process and holding the exams in a more timely fashion.

Read the 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 Jessica Coulter v State of NY Insurance Department

Petitioner brought about this Article 78 case to review a determination of the State of New York Insurance Department adopting the recommendation of a hearing officer and revoking petitioner’s insurance broker license in New York. Petitioner was charged with untrustworthiness and incompetence as an insurance producer based on her license being revoked by the state of New Jersey and her owing restitution and fines of over $100,000. Additional charges of misconduct included failure to remit payroll taxes to the IRS for a period of eight years and making a false statement under oath. After a hearing regarding these charges, the hearing officer recommended that petitioner’s license be revoked in New York and the Department adopted this recommendation. Petitioner then brought about an Article 78 appeal contended that there was not sufficient evidence to support the determination. The Court disagreed and felt that the evidence was, in fact, sufficient and the penalty of revocation was not disproportionate to the offences committed and thus, not shocking to one’s sense of fairness.

Accordingly, the Supreme Court confirmed the determination, denied the petitioner, and dismissed the proceeding, with costs.

Read more about this Article 78 employment 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 Philip Warshawky v Thomas DiNapoli, as State Comptroller

In this Article 78 case, petitioner, a court officer, applied for accidental disability retirement benefits after suffering two heart attacks. He did not identify any specific incident as the causative event for his heart problems. The New York State and Local Retirement System denied the application finding that the heart attacks did not constitute accidents. Petitioner’s case was heard by a Hearing Officer who agreed with the Retirement System’s decision and the Comptroller adopted the Hearing Officer’s conclusions. Petitioner then brought about an Article 78 appeal to challenge the Comptroller’s decision. The Supreme Court granted petitioner’s application to annul a determination of the Comptroller denying him accidental disability retirement benefits on the grounds that petitioner did not need to show an accident occurred.

The Comptroller then appealed this decision arguing that petitioner was responsible for showing that a qualifying accident occurred to cause his heart attack. The Court, while noting that the Supreme Court performed a sound analysis of established principles of construction, ruled that the precedent and legislative history did does not excuse petitioner from demonstrating a qualifying accident occurred causing his disabling heart disease.

Accordingly, the Supreme Court reversed 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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Resat Keles v. The Trustees of Columbia University in the City of New York

Plaintiff brought about this Article 78 case to challenge the academic and administrative standards and decisions of Columbia University. Article 78 appeals are limited to determining whether a decision is arbitrary, capricious, irrational, or in bad faith and courts have repeatedly declined involvement in the evaluation of academic performance since the educational institutions are better suited to make judgment. In this case, the Court declined to convert plaintiff’s action to an Article 78 special proceeding because his claim made past the four-month statute of limitations.

Read more about this Article 78 education 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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