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

The Matter of Derrick Wingate v New York State Division of Parole

In this Article 78 case, petitioner requested the court review a decision of the respondent to revoke petitioner’s parole.

Petitioner, Derrick Wingate, has an extensive and violent criminal record. In 1982, he was convicted of escape in the second degree and two counts of criminal possession of a weapon in the third degree. Petitioner was sentenced to 15 years to life in prison. In January 2008, he was release to parole supervision. Under condition six of his release, petitioner was required to inform his parole officers of any contact (including arrests) with any law enforcement agency.

In June of the same year of his release, petitioner was charged with violating condition six. Petitioner did not inform his parole officer that the police were summoned to his residence to investigate a shooting involving his grandchildren.

Petitioner sought an appeal under article 78, after a decision not given within 4 months. The court stated that if there was a violation of the procedural requirements, then petitioner parole revocation will be confirmed. There was a tremendous amount of evidence present supporting the respondent’s decision to revoke his parole.

On the day in question, petitioner gave the officer a false name, refused to allow the officer to search his home and his interaction last several hours with a few officers. “The nature and interaction with the officer would lead a reasonable person to conclude that it was “contact” with the police” and would require the petitioner to report this to his parole officer. The parole officer testified that no such incident was ever reported by the petitioner.

The court concluded that the respondent’s decision is confirmed, without costs and the petition is dismissed.

Read more about this Article 78 case here.

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The Matter of the Application of Judy Florence against The New York City Housing Authority

In this Article 78 case, petitioner sought to reverse respondent’s decision to terminate her lease due to failure to register and maintain her two dogs in compliance with the Housing Authority pet policy and her outstanding rent balance.

According to the respondent, their decision to terminate her tenancy was based on substantial evidence. First, petitioner admitted that she owned a pit bull that was involved in an attack with her neighbor in the hallway near the petitioner’s apartment and she did not register both of her pets. Second, petitioner also admitted that she failed to pay her rent on time and this was a violation of the housing Authority Policy. According to the Housing authority, failure to make payments on time is a good enough reason to terminate tenancy.

The petition was denied and the proceeding is dismissed, without costs and disbursements to the respondent.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

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The Matter of Carlos Ortiz v Brian Fischer, as Commissioner of Correctional Services

In this Article 78 case, the court reviewed a decision where respondent found petitioner guilty of violating a prison disciplinary rule.

Petitioner urine was tested positive twice for the presence of cannabinoids. He was, then, charged with the use of a controlled substance and found guilty in a tier III disciplinary hearing. After the petitioner’s administrative appeal was ineffective, petitioner commenced an Article 78 proceeding.

However, the court still confirmed this initial finding. The following substantial evidence aided in the court’s decision: (1) the misbehavior report; (2) positive test results; (3) testimony of the testing officer; and (4) petitioner’s admission that he smoked marijuana.

The court reviewed the record and determined the petitioner’s guilty charge was a result of the substantial evidence and not a result of any alleged hearing officer bias. Petitioner’s argument was unpreserved or unpersuasive.

The determination was confirmed, without costs and the petition was dismissed.

Read more about this Article 78 case here.

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Matter of Estate of Phyllis Gravino v Thomas Young

In this Article 78 case, the court reviewed a decision of the Zoning Board of Appeals of the Town of Babylon. The Zoning Board denied the petitioner’s application for area variances.

The Zoning Board of Appeals of the Town of Babylon decision to deny petitioner because they found that the requested variances would cause an adverse effect on the surrounding neighborhood. The court’s determination was rational and not arbitrary and capricious. Also, petitioner had failed to show that the Zoning Board had granted variances to other in similar situation.

The court denied the petition and dismissed the proceeding, with costs.

Read more about this Article 78 case here.

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Paul Zuckerberg, et al. v Port Authority of New York and New Jersey

Pursuant to the Federal Employers’ Liability Act, the plaintiffs sought to recover damages for personal injuries.

The injured plaintiff was employed by the defendant as a police lieutenant. One day, the injured plaintiff was stationed at John F. Kennedy International Airport. While on duty, he tripped over a door saddle while exiting the tour commander’s office. The injured plaintiff applied and received worker’s compensation benefits for his injuries from the fall.

The plaintiff and his wife, then commenced this action against the Port Authority pursuant to the Federal Employers’ Liability Act (FELA). Port Authority argued that FELA did not apply to this action and that the injured plaintiff was already covered by worker’s compensation. Therefore, they moved for summary judgment to dismiss the complaint. In opposition, the injured plaintiff asserted that he was assigned to a central lieutenant’s pool and would be randomly to different areas. This included areas in the Port Authority Trans-Hudson Corporation.

The court states that FELA was inapplicable to this case. However, plaintiffs still asserts that the Port Authority, “in its capacity as the operator of an interstate railway transit system, may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA.”

The court concluded that FELA still did not apply under the circumstances of this case and granted Port Authority motion for dismissing the complaint.

Read more about this Article 78 case here.

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Matter of the Application of Philomena Brennan v New York City Department of Education

Petitioner, a tenured teacher, started an Article 78 proceeding against the New York City Department of Education. She wanted her name to be removed from the DOE’s Ineligible/Inquiry List and for the DOE to allow her to withdraw her resignation.

In the spring of 2006, petitioner was working as a full-time teacher Frederick Douglas Academy in Brooklyn. At the end of the school year, the principal informed petitioner that she was receiving an unsatisfactory rating. Immediately after being informed of her “U” rating, petitioner formally resigned.

A few years later, petitioner began to take steps to with her resignation. In January 2009, she returned to the school to speck to the principal. Petitioner saw the principal and was escorted to her office and told to wait. Approximately ten minutes later, petitioner was “handcuffed and charged with misdemeanor of trespass and the violation of harassment.” She immediately informed the DOE of the arrest, as the rules are stated and she was placed on the DOE’s Ineligible/Inquiry List, which makes her ineligible for rehire or for a teaching assignment.

In June 2009, all criminal charges against the petitioner were dismissed. So, she requested the DOE remove her for the DOE’s Ineligible/ Inquiry List. The IA Deputy Chancellor Teaching and Learning signed an undated letter stating she has been approved to be removed for the list. However, due to no date on the letter, the court determined that the effective date would be June 11, 2009, when petitioner initially applied to have her name removed from the list. Now, petitioner sought to have her resignation withdrawn, but she had to wait for all paperwork regarding the list is completed. Therefore, the petition to withdraw he resignation is premature.

The petition was granted as it requests the removal of the name of Philomena Brennan, petitioner, from the Ineligible/Inquiry List maintained by respondent New York City Department of Education, effective June 11, 2009 and the court ordered that respondent's cross-motion to dismiss petitioner's claim regarding the withdrawal of her resignation as a teacher is granted, and that claim is dismissed without prejudice and without costs or disbursements to either party due to it prematurity.

Read more about this Article 78 case here.

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Matter of Michael MacLeod v Robert l. Megna, as Commissioner of Taxation and Finance

 In this Article 78 case, the court reviewed a decision of the Tax Appeal Tribunal which uphold sales and use tax assessment required under Tax Law articles 28 and 2.

Petitioner was the president and sole shareholder of MJM Studios of New York, Inc. This was a New Jersey company that specialized in creating architectural enhancements of buildings in numerous states.

Respondent informed petitioner that they would be conducting a field audit and required access to all MJM’s records. Petitioner could not provide access to the records because they were in possession of a bankruptcy trustee. The auditor made several attempt to contact the bankruptcy trustee and also made several more requests of petitioner to provide the records. After the unsuccessful attempts, the auditor calculated an estimated sales and use tax based on deposits in MJM’s bank records and he adjusted through MJM’s franchise tax returns to include only New York sales. Following a conference, the assessed amount was reduced. In addition to a hearing, the Department agreed to further reduce the assessed amount.

The Tax Appeal Tribunal affirmed the tax assessment. Due to a statutory presumption that all money received by MJM for products and services were taxable, petitioner has the burden of establishing by “clear and convincing evidence” that the money was not taxable and the assessment was erroneous. He failed to prove that the capital improvement exemption applies.

Even though the records were in possession of the trustee, there was no evidence that petitioner attempted to retrieve the records for the auditor.Due to the lack of documentation from petitioner, the auditor needed to come up with its own method to determine the tax assessment.

The determination is confirmed, without costs, and petition dismissed.

Read more about this Article 78 case here.

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Matter of the Application of Robert F. Hayes v The City of New York Department of Citywide Administrative Services, The New York City Fire Department, The City of New York, and The Test Validation Board for Examination (PRO) Battalion Chief

According to this Article 78 case, petitioner sought to prevent the Test Validation Board of the NYC Fire Department from marking three questions void on the answer key for the Battalion Chief examination.

Petitioner, a Captain in the NYC Fire Department, was eligible was for promotion to Chief Battalion. On August 16, 2008, petitioner sat for the Promotion to Battalion Chief Examination No. 8511. He received notice of the final answer key through a letter dated mid-December 2008. Originally, the Test Validation Board stated that the answers to questions 15, 46, and 85 were A, A, and D. Petitioner’s answer key followed accordingly. However, in the final determination, the Test Validation Board allowed A, B, C and D to be the correct answers for questions 15, 46 and 85.

Hayes declared that the board acted outside the reach of its authority as stated in Civil Service Law § 50-a. According to Civil Service Law § 50-a, a candidate may file a petition pursuant to Article 78 within thirty days after service of the notice of availability of the determination of the test validation board.

Petitioner was given notice of the Board’s determination on December 17, 2009. Almost 4 months later, on April 12, 2010, petitioner filed a petition under Article 78. His petition was dismissed because it was outside the statute of limitations set in Civil Service Law § 50-a.

The principle of an Article 78 proceeding is to allow the distressed candidate an chance to dispute why the determination of the administrative agency was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The court dismissed the petition without costs and disbursements to the respondents.

Read more about this Article 78 case here.

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In the Matter of Mark Scott v Brian Fischer, as Commissioner of Correctional Services, et al.

In this Article 78 cases, petitioner sought review of respondent’s conclusion which found petitioner guilty of violating certain prison disciplinary rules.

During a pat frisk of petitioner by a correction officer, petitioner seemed to have swallowed a foreign object that he was hiding in his mouth. He was, then, escorted to the hospital for an x-ray.

The x-ray revealed a razor blade wrapped in some type of material in his stomach. For the next few days, petitioner was placed on a contraband watch, but no razor blade turned up. In a misbehavior report, petitioner was charged with the following: (1) possessing a weapon, (2) possessing contraband, (3) violating search and frisk procedures and (4) possessing gang material. However, he was found of everything but of possessing gang material.

The determination was supported by the following substantial evidence: x-ray taken at the hospital, the misbehavior report, the testimony of the correction officer who authorized it, the testimony of the lieutenant who ordered the pat frisk, the testimony of the sergeant who was present at the pat frisk and the testimony of the nurse who reviewed the x-ray.

Petitioner, however, states that the determination is not supported by substantial evidence because the x-ray taken two days after the incident did not show any object in the petitioner stomach, nor was any contraband recovered.

The courts determination was confirmed, without costs, and petition was dismissed

Read more about this Article 78 case here.

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Matter of Lorrainer C. Brady v The Williams Capital Group, L. P.

In this Article 78 case, the question is whether the petitioner was financially capable of sharing arbitration fees and costs.

In 1999, the respondent hired petitioner to sell fixed income securities. As a requirement for the position, petition needed to complete a Uniform Application for Securities Industry Registration to Transfer in order to become registered with the National Association of Securities Dealers (NASD). Upon registration, petitioner was no subject to the NASD rules.

In 2000, respondent created an employee manual and each employee was required to sign and follows and condition set aside in the manual. The employee manual included a “Mutual Agreement to Arbitrate Claims,” which states that all disputes will be arbitrated and each party will equally share the fees and costs of the arbitrator.

Approximately five years later, in February 2005, petitioner was terminated from her position at The Williams Group. Following her termination, petitioner filed a discrimination complaint with the New York State Division of Human Rights. However, eight months later, before a decision was made, petitioner withdrew her complaint. In December of the same year, petitioner filed a Demand for Arbitration with American Arbitration Association. She was seeking money damages against the respondent. Petitioner claimed that her termination of employment at the Williams Group was in violation of her Civil Rights.

According to the AAA rules, employers were required to pay all arbitration fees. Therefore, AAA decided on behalf of the petitioner and sent an invoice for $42,300 to the respondent. Respondent refused to pay the entire amount due to the Williams Group arbitration agreement in the employees’ manual.

Pursuant to Article 78, petitioner sought to force respondent to pay the fees or to force AAA to issue a judgment on respondent for failure to cooperate.

The Appellate Division sided with the petitioner because they found that respondent “equal share” provision in the agreement was “unenforceable as against public policy.” However, now the petitioner has the burden of showing that she withdrew her initial petition on the grounds that the fees were discouraging to continue the arbitration.

Respondent appealed on the grounds that petitioner was financially capable of paying half of the fees, at the time of the filing the complaint.

Order modified, without costs, by remitting to Supreme Court, New York County, for further

proceedings in accordance with the opinion herein and, as so modified, affirmed.

Read more about this Article 78 case here.

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Matter of William Giblin et al v. Village of Johnson City

Petitioner sought to appeal an order form the Supreme Court which granted petitioner’s application to terminate health insurance benefits to petitioner current wife, Patricia Giblin. This was a combined proceeding pursuant to Article 78 and an action for a declaratory judgment.

Petitioner William Giblin retired as a firefighter from the respondent. According to the collective bargaining agreement (CBA), upon retirement, the petitioner “…shall continue to receive…” family coverage health insurance for himself and his dependents.

In February 2009, petitioner divorced his then-wife, which automatically terminated health coverage for his ex-wife and switch the petitioner to an individual health insurance plan. In March 2009, the petitioner married petitioner Patricia Giblin. William Giblin requested that his current wife be added to his health coverage plan. Respondent informed the petitioner that he did not have the family plan and was no longer permitted to it.

The Supreme Court only terminated the order and instructed the respondent to extend health coverage to Patricia Giblin. According to the court, the petition would be dismissed under Article 78 because this falls under a breach of contract. Therefore, the claim will be resolved under traditional rules of contract.
 

Furthermore, respondent violated its contractual responsibility in failing to provide health coverage to the petitioner’s dependent. According to the collective bargaining agreement, retirees will “continue to receive” health insurance for himself and his dependents. The CBA does not state any limits for the dependents at the time of retirement, nor does it specifically state anything prohibiting retirees to change the type of coverage.

Based on the CBA, the court ordered that the judgment and order be modified, without costs, by dismissing the Article 78 petition and declaring that Patricia Giblin be provide health insurance coverage as a dependent of retiree, William Giblin.

Read more about this Article 78  case here.

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Matter of Brian A. Herlihy v. Thomas P. DiNapoli, as State Comptroller

In this Article 78 case, the court reviewed a decision of the State Comptroller which denied the petitioner’s application for accidental disability retirement benefits.

In 1995, petitioner started working as a police officer for the Town of Bedford, Westchester County. From 2001 to 2005, petitioner sustained three work related injuries. In 2001, while lifting a speed trailer, petitioner felt a pop in his back. In 2002, he injured his upper back and shoulder while aiding burglary arrest. In 2005, petitioner tripped on a step in the police station while trying to answer the phone and work desk duty.

Two years later, in 2007, Petitioner applied for accidental disability retirement benefits. The application was denied due to none of the incidents encompassed an accident within the meaning of Retirement and Social Security Law § 363. The court confirmed stating that the petitioner bears the burden of proving that his injuries were unintentional. This meant that the injuries were sudden and unusual and completely not linked to ordinary risks of employment.

The court confirmed the initial determination, without costs and dismissed the petition.

Read more about this Article 78 case here.

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For those interested in a job with the New York State Department of Correctional Services, there is information regarding the psychological screening program for correction officer trainee candidates here. This document covers an overview of the screening program, lists the psychological tests administered, and explains the rating system. It also provides a breakdown of the number of people tested, number of disqualifications, number of appeals, and number of disqualifications that were overturned.

To read about 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 David A. Hoover v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.

In this Article 78 case, petitioner sought to rescind a determination of Comptroller terminating petitioner’s service credits in New York State and Local Employees’ Retirement System.

Petitioner received service credit from New York State and Local Employees’ Retirement System between 1988 and 1995 for part time employment as a labor regulations specialist for Erie 1 BOCES. In 2008, the respondent declared new regulation for the Retirement System. The new regulations stated how to classify professional service providers as employees or independent contractors.

According to the new regulations, petitioner’s service credits were revoked because he was classified and being an independent contractor and was not entitled to the service credits under the independent contractor title. Petitioner sought reinstatement of his service credits on the grounds that Comptroller improperly applied the new regulations and violated his due process rights. The court granted the petition on the due process claim and order that “… the determination to revoke petitioner’s service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled.”

Read more about this Article 78 case here.

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Thursday, July 15, 2010

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

This post was original published By Harvey Randall, Esq., The Public Employment Law Press on Thursday, July 15, 2010

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Since 2006, more than 1,000 New York City teachers have lost their permanent assignments yet remain on the Department of Education payroll. These teachers are referred to as the Absent Teacher Reserve pool (ATRs). They have not lost their jobs due to any wrongdoing but due to school closings or budget cuts. ATRs are assigned to schools across the city to act as substitute teachers or administrative help. The salaries for these ATRs are paid by the department’s central office and not individual schools.

Many ATRs are unmotivated to seek new employment. The last two New York City job fairs only brought in about ten percent of the ATRs invited. Even the school chancellor has admitted that some people just prefer not to work. While the DOE offers financial incentives to schools to encourage them to hire ATRs, the principals do not always get responses from the ATRs they contact to fill positions and sometimes the responses they do get are half-hearted.

New York City expects more teachers to wade into the ATR pool due to budget cuts.

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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