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

Acosta v. Benepe

Petitioner asked the Court to be permitted leave to file a late notice of claim. 

Mary Acosta, the petitioner was released from her position as Urban Park Ranger on July 9, 2010.  This timely notice of claim should have been filed by October 7, 2010.  This event did not take place but, the petitioner began an Article 78 on November 5, 2010.  The petition filing did not occur until March 8, 2011. 

Petitioner sought counsel on August 16, 2010.  A letter was delivered to the Commissioner of the Department of Parks, Adriane Benepe, On September 8, 2011 Ezra Pincus-Rother responded to this letter on behalf of the Commissioner stating the referral to the Parks Legal Division, General Counsel.  Phone calls were made by his attorney to the Park’s attorney supplying needed information.  On October 3, 2010 a letter was sent that remained unanswered.  Then an Article 78 proceeding was filed on November 5, 2010. 

The petitioner argues that her untimely filing of the notice of claim “was a good faith reliance on the Parks Commissioner duty to inquire and to act.”  The petitioner waited to file a lawsuit because of this confidence. 

            Discussion

Three aspects determine whether a court can approve an application for leave to serve a late notice of claim pursuant to General Municipal Law 50-e.  It is “understandable” the resistance to bring a suit to litigation because of an immense amount of time and money involved, and the hope that the “matter could be resolved.”  The Department also obtained the petitioner’s entire personal file containing records of events leading up to her termination.   They also had opportunities to contact the petitioner and her attorney to obtain needed information.  The late notice of claim was also within months. 

The petition for leave to serve a late notice of claim was granted. 

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Matter of Luft v New York City Bd./ Dept. of Educ.

Petitioner pursuant to CPLR 7511. 

            I. Background

Petitioner began employment in Brooklyn, 1987 as a pre-kindergarten teacher with respondent New York City Department of Education.  After an incident on May 10, 2008 petitioner was “charged with conduct unbecoming her position, conduct, prejudicial to the good order, efficiency, or discipline of the service, and endangering the welfare of a child.”  This was in response to petitioner’s responsibilities concerning a child’s release at dismissal.  The hearing officer “declined to terminate petitioner, finding that while it is (her) responsibility . . . to make sure her students are properly dismissed to the appropriate caregivers, the failure of the school to provide (her) with a substitute paraprofessional mitigates (her) culpability for the incident.”  However, petitioner was ordered to pay a fine of $1,000 for failing to ask for help during the end of the day procedures. 

            II. Contentions

Petitioner sought to prove that the hearing officer’s decision was not proper in accordance with CPLR 7511.

            III. Analysis

Petitioner was unable to prove that the hearing officer’s decision was based on corruption, fraud of misconduct.  The petitioner’s allegations of bias of the hearing officer were denied.  Petitioner contends that the New York City Board of Education did not vote on the above situation, that the hearing officer overstepped her position.  That in accordance to Education Law 3020-a(2)s, “the Board must vote on charges against a teacher to determine “whether probable cause exists to bring a disciplinary proceeding against (her) pursuant to this section.”” But, Education Law 2590-h(38) allows for the Chancellor and then community superintendents to “duties and responsibilities of the (Board).”  Hearsay is permitted therefore, the hearing officer reached her decision within allowance.  Hearing procedures and timeliness were also followed.  It was found that the award imposed was supported.  The petitioner’s argument that the hearing officer needed K.Z.’s testimony are without substance since the petitioner did not show how this addition would change the conclusion.  Lastly, the adequate punishment was inflicted as to the petitioner’s involvement in the event.  The petitioner displayed a lack of proposed help during the time of dismissal, and therefore, in part, responsible for the event. 

            IV Conclusion

The petition for an order to vacate the award was denied. 

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