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

In the Matter of Eastern Oaks Development v Town of Clinton, et al.

In this Article 78 case, petitioner, Eastern Oaks Development, asked the court to review a decision of Clinton where petitioner was denied their application to have its road accepted for dedication by the Town of Clinton.

In 2005, petitioner applied with the Town of Clinton Planning Board for approval of a residential subdivision that contained eleven lots. Petitioner stated they did not intend to builds any homes on the lots and that it was up to the purchasers to build their own homes. A few months later, the Planning board granted the application for conditional final approval for the Subdivision. Planning Board stated that at least eighty percent of the construction must be done in the Subdivision in order for formal acceptance of the roads.

The Town Engineer wrote a letter to the Board pleading that they disapprove the road based on the fact that there was not eighty percent of construction done in the Subdivision. The Planning Board took this into consideration and declined  acceptance of the road stating that the Town Board disapprove of the dedication “…until there are sufficient houses constructed on the subdivision parcels.”

Petitioner, then commenced this Article 78 proceeding alleging the following: (1) the Town was aware that in order to attract potential purchasers it was necessary for the Town and Town Board to accept the dedication of the road; (2) before an actual vote took place, the Town Board already determined that they were going to decline the acceptance of the road by the influence of Budd, who had a interest of conflict; (3) Budd and the Town Engineer were good friends and they “collaborated and conspired to thwart the perfunctory approval of the road…”; (4) after a dispute between Eastern and Budd, Eastern has a dispute with the Town Engineer “... over baseless charges and has been advised that same threatened the Subdivision."

The Court denied the Town Parties motion to dismiss holding that Budd, although recused from the vote could have influenced it.

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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NYPD Prior Probationary Service Counts Upon Reinstatement

Ward v  Kelly

Petitioner, Michael Ward, sought to annul a decision of the NYPD, to terminate him as a Probationary Police Officer on March 11, 2009.

In July 2006, Petitioner was originally appointed as a probationary police officer. Approximately nineteen months later, Ward resigned from his position in order to join the New York City Fire Department and less than a month later, on February 13, 2008, he resigned from the Fire Department and reapplied to the NYPD on the same day.

When Petitioner reapplied to the NYPD, he was required to sign a document called “Police Officer Terms of Probation,” which states that he was informed that there will be a twenty-four month probationary period. On February 21, 2008, Ward was appointed as a Probationary Police Officer. Upon appointment, Petitioner alleges that his probationary period would only last thirty-two days because he had started his probationary period on his initial appointment into the NYPD.

In December 2008, Petitioner was arrested for assault, menacing and harassment. Eventually, the charges were dropped, but as a Probationary Police Officer, Ward was terminated from the NYPD.

Petitioner argues that his initial probationary period should have been counted towards the two year probationary period, which ended in August 2008. Therefore, this would entitle Ward to a disciplinary hearing before his termination because he was no longer a Probationary Police Officer.

According to the Personnel Rules and Regulations of the City of New York, when “…a probationary employee has been separated from service, for any reason other than fault or delinquency, and is thereafter re-appointed by the same agency, the length of his prior probationary term shall be deducted from his current probationary term.”

The petition was granted and the decision terminating petitioner was vacated and rescinded. Petitioner will also be subject to such other disciplinary procedures applicable to him as a non-probationary police officer from his December 14, 2008 arrest.

Read more about this Article 78 case here.

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John Tipaldo v Christopher Lynn, etc., et al.

Pursuant to Article 78, plaintiff appealed an order by the Supreme court that granted his back pay without interest in his Civil Service Law § 75-b action. The plaintiff is also asking for the court to grant his reinstatement to the prior position.

In August 1996, plaintiff, John Tipaldo, was promoted to the position of Acting Assistant Commissioner for Planning by the New York City Department of Transportation (DOT). Plaintiff, which was a salary of $55,000 and if the position became permanent, he would receive a $25,000 increase. Six months later, plaintiff was demoted from the new position. As determined in the Civil Service Law § 75-b action, the demotion was in retaliation for the plaintiff reporting a supervisor violated bidding rules. Due to the demotion, the plaintiff new position never became permanent and he never received the $25,000 salary increase.

At the trial court, plaintiff presented an expert economics testimony to establish the total amount of back pay the plaintiff was entitled to. The expert determined that if the plaintiff had not been demoted he would have received the $25,000 increase and would have been making $81,000. The expert also calculated the amount of money the plaintiff would have earned through the time of trial if he was not demoted by comparing two managers with similar position and salary to that of the plaintiff and applied a statutory interest rate of 9% to the lost earning. The expert arrived at a total of $662,721.

The Appellate Court found that the back pay calculated by the plaintiff’s expert had sufficient support and that the plaintiff was likely to have received the raise.

Therefore, it was determined that the predetermination interest is available for those who claim under the Civil Service Law § 75-b. Further, it Supreme Court granted an interested award because the defendants did not offer any counter argument as to why the plaintiff’s expert testimony is flawed. Finally, the Supreme Court order that the plaintiff be reinstated “to the same position held before the retaliatory personnel action, or to an equivalent position.”

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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Pitts II v City of New York Office of Comptroller

Pursuant to Article 78, petitioner sought the court to review a decision of the New York City Department of Health and Mental Hygiene (DOHMH) stating that he had violated New York City Health Code.

Petitioner received a violation notice from the DOHMH which cited him for violations of the New York City Health Code. A DOHMH hearing examiner determined that petitioner had two violations and he would be fined $500 total. Petitioner brought suit but failed appeal the decision prior to suit.  Due to the petitioner not exhausting all administrative remedies the Supreme Court granted DOHMH’s motion to dismiss.

The court stated that in order for a proceeding to be litigate in a court of law, petitioner must exhaust all available administrative remedies

The Supreme Court ordered that the order and judgment is affirmed, without costs or disbursements.

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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