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 Bronxville Library is one of the great libraries in New York.  I spent countless hours there in 1982 studying for NYPD Sergeant. This photo shows one of its rooms.  

It had a recent controversy went it awarded a raise to its Director then rescinded the raise.  The director responded by filing an Article 78 petition. The director recently ended the controversy when she was hired by the Larchmont library and apparently withdrew her Article 78 petition. Read about this Article 78 case here.

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 New Regulations Concerning DWI/DUI Offenses

            As of now, all people that require a substance abuse screening or assessment are required to submit to a drug test, consent to having the evaluator look at their DMV Driving Abstract, arrest information as well as allow the evaluator to contact a significant other who will be questioned regarding the arrest. 

          Starting in 2012, the NYS DMV and OASES worked together in creating a data base called Impaired Driver System (IDS).  This will eliminate the former paper submission of DS-449 to the DMV.  The DS-449 forms were needed for those looking to restore their driving license.  

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Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Matter of Britt v. DiNapoli

          This case was a CPLR Article 78, to review a determination made by respondent, New  York State Comptroller denying petitioner’s application for performance of duty disability retirement benefits.

          Petitioner was a deputy sheriff, who was injured on the job apprehending a suspect in 1999.  He returned to work in 2000 and was then again injured on the job when punched in the lower spine.  The New York State and Local Employee’s Retirement System denied his disability retirement benefits believing his incapacity was not the result of workplace injuries.  A Hearing Officer affirmed this decision. 

          The Court decided that the Comptroller’s decision lacked substantial evidence.  Both parties agreed that the petitioner was permanently incapacitated from further work.  Petitioner needed to prove that these injuries were the “natural and proximate result of his workplace injuries.”  Petitioner had never suffered back problems until his first incident in 1999.  Petitioner’s chiropractor, orthopedic surgeon and neurosurgeon all agreed that petitioner’s disability was caused by these two work-related accidents. 

          Respondent’s orthopedic surgeon argued that petitioner’s disability was caused originally by degenerative disc disease and osteoarthritis, rather than trauma.  But, the legal precept states that “when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability.”

          Therefore the Court concluded that the Comptroller’s decision was without merit.  The determination was annulled and the petition granted. 

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Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Matter of Oparaji v City of New York

          Petitioner sought an Article 78 proceeding in order to annul a final determination made by the New York City Environmental Control Board that affirmed five separate violations. 

          Respondents asserted that the ECB’s decision “was based upon substantial evidence in the administrative record and in all respects conforms with the applicable statutes, laws and regulations, and was a proper exercise of the ECB’s discretion, and was reasonable and rational and should be upheld by the courts.”

          Judicial review is limited to whether the decision was “arbitrary and capricious, that it exceeded ECB’s statutory authority or was made in violation of the Constitution or the laws of the State. 

          The respondent utilized the “affix and mail” service for all of the NOV’s.  New York City Charter Section 1049-a(2) (b) provides that an “affix and mail” option can only be resorted to after “a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for.”

          A “reasonable attempt” could be considered as at least two attempts at personal service, one during general working hours and once when a person who may work general working hours would be reasonably expected to be home. 

          Considering the ECB final determination, respondent’s ignored the requirement of a reasonable attempt to serve petitioner with NOV’s before choosing to “affix and mail” the NOV’s. 

          The Court found that the ECB failed to determine whether the serving officers made a reasonable attempt to service petitioner with the NOV’s prior to choosing the “affix and mail” secondary option.  The Court found that the ECB’s determination that the petitioner had been properly served and that the ECB had jurisdiction over him was arbitrary and capricious.  Therefore the request to annul the respondent’s determination was granted. 

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Department of Transportation v. K.M.

          The Petitioner, Department of Transportation, brought about these proceedings for employee disciplinary action under section 75 of the Civil Service Law against respondent, a highway repairer for absence without leave and excessive lateness. 

          Respondent had been with the Department since 1985 and was characterized as a hard worker with a poor attendance record. 

          Respondent did not argue that he had been AWOL for several days and late on ten separate occasions. 

          The ALJ had agreed with the Department of Transportation on each instance of respondent’s absence without leave except for one.  This instance was where respondent was denied emergency leave in order to bring his wife to see her brother who was undergoing a biopsy and was being treated for an unknown blood disorder, and still went.  “According to the doctor, the presence of respondent and family members was important to the patient’s well being.” 

          The ALJ believed that because this was an exceptional circumstance this AWOL instance should be dismissed. 

          The Department rules concerning excessive or habitual lateness is expressed by the Citywide Employee Lateness Policy.  “That policy provides for a five minute grace period and defines excessive lateness as seven or more late arrivals.” The policy mandates that a supervisor meet with the employee after the fourth lateness to explain the policy to them and develop methods to help avoid tardiness in the future.  As well, the employee must be warned of the possibility of disciplinary action following further lateness. 

          The ALJ established that it was unclear if the respondent was warned of how future lateness could result in disciplinary action, the petitioner’s compliance with the policy was not followed.  He also expressed that four of respondent’s lateness’s were less then ten minutes each and that excessive tardiness is considered seven within a twelve month period.  Therefore the excessive lateness charge was dismissed. 

          Petitioner sought a 20-day suspension without pay.  Since the respondent had no previous disciplinary record and was expressed as a good worker who needed to improve his attendance.  The ALJ therefore recommended a 10-day suspension.  Dep’t of Transportation v. K.M. (in PDF)

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