Posted on February 16, 2012 by Kevin Sheerin

ECB Incorrectly Serves Business NOVs, Matter Remanded to ECB

Taxraja Management, LLC v. The City of New York Environmental Control Board

 

          Petitioner, Taxraja Management, LLC brought about these Article 78 proceedings that looked to vacate sixteen default judgments by NYC ECB, Respondent. 

          Petitioner claimed that he never received the sixteen NOVs.  Once he received a notice of collection he contacted ECB and was advised to file “a request to vacate” in response to the NOVs.  Petitioner followed this advice and it was denied by the ECB who claimed service was completed.  Petitioner claims that the ECB did not properly serve the NOVs by “certified mail, return receipt requested, as required by Section 1049-a of the City Charter, or in accordance with Article 3 of the CPLR.”  Petitioner claims that ECB violated his right to due process, cross examination, presentation of evidence, and his right to a fair hearing.

          The ECB failed to supply a sufficient affidavit of service.  The affidavit of service only included one of the NOV numbers and not the remaining 15.   Therefore, it was determined that Respondent’s did not comply with the City Charter 1049-a.  

          New York City Charter 1049-a(d) (1) (h) mandates that the ECB send notice of default by “first class mail before a judgment can be docketed in the Civil Court of the City of New York.”  The “actual notice of default” supplied by Respondents was not included in the administrative record.  Therefore, “the court is unable to determine whether the petitioner was properly served with a notice of default with respect to each of the sixteen NOVs.” 

          Petition was granted, the ECB’s denial of requests for a new hearing were vacated and remanded to ECB for further proceedings. 

 

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Posted on February 15, 2012 by Kevin Sheerin

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent's move to dismiss my petition for "failing to exhaust my administrative remedies" or wait for the decision of an internal appeal and have Respondent's move to dismiss their Petition as untimely having been filed more than 4 months after the termination date. 

New York State's highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination.  The 4 months time limit runs from the final day of service.

Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations.  Leslie Khan was terminated "... as of the close of business January 25, 2008"  She filed a DOE appeal of her probationary termination on January 3, 2008.   Despite the committee's non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she "reaffirmed the previous action dated January 25, 2008.  On September 9, 2008 Khan initiated an Article 78.  

Doreen Nash started working for the DOE on September 3, 2002.  In 2005 she received a "U" for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal.  Nash's employment was terminated July 15, 2005.  The Chancellor's Committee held a meeting on May 10, 2006 and recommended "non-concurrence".  Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash's discontinuance as of "close of business July 18, 2005" Nash filed an Article 78 on September 10, 2008. 

The Court held that both Khan and Nash had 4 months to appeal their termination.  Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.  

The Court explained: " Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee's service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date. 

You can read the Probationary teacher Khan case here. 

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Posted on February 13, 2012 by Kevin Sheerin

Court Upheld School District's Decision that Probationary Teacher Did Not Acquire Tenure by Estoppel

Matter of Andrews v. Board of Education of the City School District of the City of New York

 

          Petitioner sought pursuant to CPLR article 78 to “acquire tenure by estoppel and to compel respondents to reinstate her as a tenured teacher.” 

          Petitioner never received a 60-day written notice that she was not recommended for tenure.  This is mandated by Education Law 2573(1)(a) and 3012(2).  She had gone to work the day after her probationary term ended. 

          The Court did not find that Petitioner had acquired tenure by estoppel as respondents did not “with full knowledge and consent” consent to Petitioner’s return to work after her probationary period ended.  Petitioner had knowledge of her discontinuance of service in March of 2009 and when she reported to work after her probationary term expired, was told immediately of her termination and was given no assignments.  Respondent’s proceedings “speak loudly against any supposition that (they) meant to perpetuate (petitioner’s) employment.” 

         

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Posted on February 6, 2012 by Kevin Sheerin

Court Granted Police Officer Accidental Disability Retirement Benefits After Injury Caused By Slip and Fall During the Winter

Matter of Murphy v. New York State Comptroller

 

          Petitioner, a police officer who worked for the Port Authority of New York and New Jersey, who worked at John F. Kennedy International Airport as an emergency rescue worker, commenced an Article 78 proceeding to review determination by Respondent, Comptroller, denying Petitioner accidental disability retirement benefits. 

          Petitioner was injured in January of 1999 when exiting a rescue truck he slipped on black ice and fell injuring his leg, ankle, head and shoulders.  In May of 2007 a hearing officer approved Petitioner for accidental disability retirement benefits but, the Comptroller reversed and denied the benefits. 

          Accidental disability retirement benefits should be awarded when the incident was “a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties.” Petitioner explained that on the date of his injury it was cold but “clear with no precipitation”, the “taxiway was dry” and that he saw “no ice as he was exiting from the truck’s cab.” 

          The Comptroller decision rested on the concept that “encountering slick or icy surfaces was “inherent” in petitioner’s performance of his job during the winter.”  Therefore, the event could have been “reasonably anticipated.”

          The Court determined that it could not hold that “any slip and fall during the course of work performed outside during winter renders that event foreseeable.”  Accordingly, the Court determined that the Comptroller’s decision was not supported by substantial evidence and the determination must be annulled.

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Posted on February 1, 2012 by Kevin Sheerin

NOV's Improperly Served by ECB

Matter of 49 Warren Realty, LLC v City of New York

 

          Petitioners, the former and present owners of the subject premises, sought a CPLR Article 78 proceeding against respondents, City of New York, City of New York Office of Administrative Trials and Hearings, The City of New York Environmental Control Board and Carolyn Klein for (1) to vacate ECB violations against Petitioners (2) grant a hearing on the merits and/or (3) dismiss the violations for failure to state a cause of action and to obtain jurisdiction over petitioners.  Respondent’s cross-moved for an order pursuant to CPLR 3211(a) (5) on the grounds that it is time-barred by the SOL. 

          This case dealt with fifteen separate Notice of Violations issued by the ECB concerning the subject premises which was owned by three separate owners.  The responsibility of the Court is to “determine whether ECB acted arbitrarily and capriciously or abused its discretion when it denied Petitioner’s request to vacate said default judgments.”  The Court had to determine two questions, whether a “NOV issued to a previous owner is enforceable as to the actual owner of the premises.”  As well, “whether the ECB provided proper notice of the NOV’s to the Petitioners.” 

          The NOV was not issued to the actual owner of the subject premise, therefore the NOV “can only be enforced against the entity to whom the NOV was issued.  It is not enforceable against a subsequent owner.”  Therefore it was arbitrary and capricious and an abuse of discretion for the ECB to “deny Petitioner’s request to vacate the default judgment.” 

          Respondent’s argued that the Article 78 proceedings were brought about after the 4 month SOL period.  Respondent’s never submitted affidavits of service for the denial letters in question.  “An affidavit, as opposed to an affirmation, is required by a party to support the Cross-Motion.”  Respondent’s Cross Motion must be dismissed since Respondent’s failed to provide a valid affidavit of service to Petitioner, it can not be proved that Petitioner did not file a Article 78 within the SOL. 

 

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