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 Kolmel v City of New York

          Petitioner seeking to annul the determination of the City of New York Department of Education, denying certification of completion of probation and terminating employment as a probationary teacher, as well as denying his appeal of petitioner’s “U” rating for the 2008-09 school year. 

          The Court decided to unanimously reverse and the petition was granted annulling the “U” rating and remanding the matter to the DOE for proper completion of the final review and recommendation.

          Petitioner was a probationary teacher for three years, receiving satisfactory reviews and reports for each school year.  Petitioner agreed to extend his probationary period into the 2008-09 school year.  This year he received two unsatisfactory and satisfactory classroom reports.  The principal gave him an unsatisfactory rating for each category within the year-end report resulting in a U-rating for the 2008-09 school year.  Petitioner was then denied certification of completion of probation which required his termination and disallowed him from being hired elsewhere in the City.

          Although petitioner’s unsatisfactory reviews within the 2008-09 school year could suffice as rational support that he had not developed enough to be a proficient teacher, there is evidence that proves other.

          Petitioner submitted evidence that the principal, who made the final determination of the “U” rating for the 2008-09 school year, did not observe the petitioner’s teaching within his last two years of teaching.  This violates the DOE’s rules when considering teachers reviews, that require at minimum one observation (by the principal) and pre-observation meetings with probationary teachers in danger of “U” ratings.  The principal’s year end evaluation was without evidence and seemed arbitrarily completed.  A current DOE employee submitted a statement that the principal would pressure assistant principal’s into giving undeserved “U” ratings without observation.  “These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process.” 

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Matter of Colon v. Kelly

          Petitioner is the widow and beneficiary of a former Detective of the NYPD.  Petitioner brought proceedings under Article 78 seeking to annul the decision of The Board of Trustees of the Police Pension Fund that denied petitioner accidental death benefit. 

          Petitioner’s spouse performed “rescue, recovery, and clean up operations at Ground Zero for over forty hours” following September 11, 2011.  He was then diagnosed with esophageal cancer after doctors discovered a tumor, he then past away in August of 2003. 

          The Medical Board had denied the petitioner’s application for ADB stating that “based on the size of the tumor, Titus’ cancer predated his work at Ground Zero.” 

          Administrative Code of the City of New York requires that ADB is available to a widow of a deceased police officer when the death was caused by an accident in the line of duty and not the consequence of negligence by the deceased.  “WTC presumption” is available to any member of the NYPD that participated in the WTC “rescue, recovery, and clean-up” and later “dies from a qualifying World Trade center condition … unless the contrary can be proven by competent evidence.”  Administrative Code 13-252.1(3). 

          Respondents’ maintain that the Medical Board used its own expertise to conclude that “cancer grows over a period of years and not months.”  Respondent’s state that the deceased’s cancer couldn’t have been caused by exposure to WTC.  As well, that asbestos does not negatively affect esophageal cancer. 

          The Medical Board failed to provide any scientific evidence about its conclusion.  As well, they failed to discuss the likelihood that the deceased could have been exposed to other cancer causing substances that could have made his condition worse. 

          Petition is granted, the decision by the PPF to deny petitioner ADB is annulled and it is further ordered that the matter is remanded to a fresh Medical Board for a new determination. 

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Matter of Ward v City of Long Beach

          An Article 78 proceeding to review a determination of the City of Long Beach, made in 2008, which denied the petitioner’s application for supplemental wage benefits pursuant to General Municipal Law 207-a(2).  The City of Long Beach appeals from the judgment that annulled the determination and directed it to pay the petitioner subject benefits. 

          The petitioner, a former lieutenant, employed by the fire department of the City of Long Beach allegedly injured his left knee in 2003.  In 2005 petitioner was granted accidental disability retirement benefits pursuant to General Municipal Law 207-a(2).  The petitioner applied for supplemental wage benefits through the City of Long Beach pursuant to General Municipal Law 207-a(2).  The Supreme Court granted within the petition to annul the determination and direct the City to pay the petitioner subject benefits. 

          It was decided that the Supreme Court correctly determined that the City’s determination had no rational basis, was arbitrary and capricious.  Therefore, the determination by the Supreme Court was proper in granting the branch of the petition to annul the determination and direct the City to pay petitioner supplemental wage benefits. 

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 In a post from the New York Public Personnel Blog of Harvey Randall:

THURSDAY, NOVEMBER 10, 2011

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