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

Department of Sanitation v. Perez

          Employee disciplinary proceeding was brought about by Petitioner, Department of Sanitation pursuant to Section 16-106 of the Administrative Code.  Petitioner charged respondent, a sanitation worker, with being absent without leave and out of residence during supervised sick leave.

          Respondent was charged with being AWOL, for failing to report to work and failing to call in.  Respondent did not deny this charge.  This was respondent’s 13^th such absence in a 12 month period. 

          Respondent was charged with being away from the home without authorization while being on supervised sick leave.  Respondent claimed that he was home but, the Court believed that the Investigators testimony, who had gone to respondent’s home to make sure he was at home during his sick leave, was more credible than respondent’s denial. 

          Respondent was charged with: “Charge No. 8475 is sustained in that, … respondent was absent without authorization, in violation of Department rules.”  As well “Charge No. E156891 is sustained in that, … respondent was absent from home during supervised sick leave, without authorization, in violation of sick leave rule.” 

          Respondent had been a sanitation worker since 2000.  Since that time respondent has been disciplined on 10 separate occasions concerning time and leave violations.  He had “unsatisfactory” overall evaluation in 2008 and 2009 due to these violations. 

          Respondent acknowledged his disciplinary issues concerning time and leave and said that it was due to child care difficulties.  In 2009, he filed for hardship and was given a new work shift for nights to alleviate this burden.  He had less absences and had improved his sick leave status to the A category, from the chronic absence or C category. 

          The court found that although there were disciplinary issues in the past, they did not warrant termination.  Since the respondent had reversed a pattern of poor performance in his time and attendance since the commission of the misconduct two years ago. 

          The ALJ therefore recommended a 30 day suspension for the misconduct proven, which should adequately address the need for progressive discipline. Dep’t of Sanitation v. Perez (in PDF),

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Matter of Derosa v. Dyster

          Petitioner was a retired employee of the respondent, City of Niagara Falls.  This CPLR Article 78 proceeding sought either post-employment health insurance coverage or opt-out payments in lieu of such coverage, pursuant to the terms of a Memorandum of Understanding between respondent and the union representing petitioner. 

          The court decided that there were no administrative remedies available to the petitioner when she first became aggrieved.  She was aggrieved only after she retired, at that time there was no department head with whom she could file a grievance with.  Therefore, petitioner could not have pursued a grievance through administrative remedies before commencing the proceeding. 

          The previous court erred in determining that the City must provide petitioner with opt-out payments as well as retroactive payments, in lieu of providing her with health insurance. 

          The court further decided that as a retiree, petitioner was entitled to enroll in the health care plan at no cost to her. 

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Matter of Caslin v Nassau County Civ. Serv. Comm.

Petitioner brought about CPLR Article 78 concerning application for Nassau County Civil Service Commission Police Officer Examination.

Petitioner was disqualified due to “failure to meet the MPTC standard for audiology.”  The MPTC is the Municipal Training Council that sets standards for the necessary job functions for candidates of the NYPD.  In August of 2007 petitioner passed the written examination.  The petitioner then had to pursue with other tests necessary to become a Police Officer.  He was given at firs the “pure tone screening” hearing test, petitioner showed impairment in the left ear at 2,000 and 3,000 Hz.  When retested both ears showed impairments at 2,000 Hz.  Because of these impairments, petitioner was then disqualified.  The problem in question is that the MPTC’s Medical and Physical Fitness Standards and Procedures for Police Officer Candidates, states that a police officer candidate “shall score no poorer than 90% in quiet and 70% in noise” for resource testing.  Petitioner had passed these tests but failed the 35dB quiet test, at 68%.  This 35dB test is only found in a modification of the MPTC audiology standards that was adopted by the CSC in 2007. 

The questions raised by the petitioner is whether the determination was (1) arbitrary and capricious; (2) an abuse of discretion; (3) made in violation of lawful procedure; or, (4) affected by an error of law (CPLR 7803(3)).  “The arbitrary and capricious question therefore turns on whether the CSC’s denial of the petitioner’s appeal, based upon the auditory evaluations of Dr. Richards and Dr. Bressi Hamilton, is justified.”  Dr. Richards evaluation performed does not provide enough facts to decide whether the testing was compliant with standards for the MPTC.  “Thus any administrative action based upon Dr. Richard’s report is without foundation in fact, and thus arbitrary and capricious.”  Also, Dr. Bressi Hamilton only administered one test that the petitioner failed, the 35dB sound-field speech recognition test.  This was a modification of the MPTC audiology standards, “it remains to be determined whether the CSC’s unilateral adopting, as the petitioner suggests, violated Civil Service Law 20.” Petitioner refers to Section 20, subdivision 2 that states “rules, and any modifications thereof, shall be adopted only after a public hearing . . . and shall be valid and take effect only upon approval of the state civil service commission.”  The CSC’s failure to adopt the 35dB test modification within a public hearing makes the CSC’s decision arbitrary and capricious, as all other tests given by Dr. Bressi Hamilton were passed.  The CSC does not argue this fact but states that the 35dB test “is not a “rule” but a “standard” or a “regulation”” which does not have to comply with Civil Service Law. 

The CSC’s adoption of the 35dB test in 2007 violated CSL 20(2) and “was null and void.”  Therefore the petitioner’s disqualification was “without foundation in fact and thus is arbitrary and capricious.”  The CSC’s determination was annulled, and the respondent’s are to further the remaining tests to finish the petitioner’s application for the Nassau County CSC Police Officer Examination. 

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Matter of Griffiths v Kelly

            Article 78, petitioner Gale Griffiths sought to appeal the decision denying her an accident disability retirement. 

            Griffiths was a member of the NYPD from July 5, 1989 until her retirement on August 25, 2010.  She sustained an injury on February 24, 2009 when the petitioner tripped over an extension cord to the heater in an office at the Queens Family Court in Jamaica.  The Command Supervisor provided an injury report stating that the petitioner tripped over the extension cord and fell into the file cabinets injuring her neck, right arm and right shoulder.  The Investigating Supervisor found that the petitioner was in “proper performance of official police duty.” 

            On March 8, 2010 the petitioner filed an ADR allowance application in accordance with Administrative Code 13-252 in reference to the injury sustained on February 24, 2009.  She alleged this event caused consistent pain and consequently decreased her range of motion and mobility. 

            Police Officer Gumiela responded to the incident on February 24, 2009 but, did not write her report until May 20, 2010 stating that “Det. Griffiths stated to me that she tripped on the extension cord that was attached to the heater. This heater is normally under the desk. I can only surmise that it was moved by the night time cleaning crew and they failed to put it back under the desk.”

            On May 12, 2010 the PDF Medical Board approved the petitioners ADR application. 

            On July 14, 2010, the Board of Trustees held a meeting where Elizabeth Botwin, trustee for the New York City Department of Finance, conveyed her opinion that the petitioner should have seen the extension cord.  And that the statement that the heater had been moved by the cleaning crew was made over a year later and not aligning with the accounts from the day of the injury.  On September 8, 2010 the Board of Trustees denied the petitioners ADR application in a 6 to 6 tie, stating that the “incident was not an “accident” for pension purposes.”

            The petitioner commenced in an article 78 stating that the Board of Trustees’ decision was arbitrary and capricious.  That the petitioner had proved that she had been injured in an “accident.”

            It was argued that the Board of Trustees’ decision was based upon evidence.  That the injury occurred not because of a sudden event but because of an “incident that was an inherent hazard of performance of police duties and her own misstep.”

Discussion

            The petitioner must prove “that he or she suffered physical or mental incapacitation as a natural and proximate result of an accidental injury received in city-service and that such disability was not the result of petitioner’s own willful negligence” in order to acquire accident disability retirement benefits. 

            The City respondents dispute that (1) the evidence did not consider the injury an “accident” by law and (2) the affidavits supplied by Griffiths and Gumiela were not in alliance with the evidence from the date of the injury and were dismissed by the Board of Trustees. 

            The court found that there was an “accident” in accordance within the New York City Administrative Code 13-252.  There is no evidence that the injury occurred because of the petitioner’s willful negligence.  “Griffiths’ fall was sudden, unexpected, and out of the ordinary in that one would not normally expect an extension cord to be laying on a floor where people are walking in an office room.”

            The petition is granted in annulling the findings of the Board of Trustees against the petitioner and the matter was remanded to the Board of Trustees.

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In the Matter of Helen Hickey v. New York City Department of Education

In the Matter of Rachel Cohn v. New York City Department of Education

Petitioners Helen Hickey and Rachel Cohn are two tenured teachers who seek to have “letters of reprimand” removed from the personnel files for failure to follow Education Law § 3020-a procedures by filing an Article 78 petition against the Board of Education.

For Petitioner Hickey, the letters of reprimand placed in her file stated that she demonstrated incompetence and “unsatisfactory professional attitude” when preparing students for a field day. For Petitioner Cohn, the letter was a complaint filed with the Department of Education’s Office of Equal Opportunity. The complaint was in regards to a heated discussion with the principal, where Cohn told her to watch her “Latin temper.” The letters of reprimand was placed in both Petitioners’ file in 2008 and indicated that it “may lead to further disciplinary action.”

Respondent maintains that the letters were appropriately placed in their files according to the 2007-2009 Collective Bargaining Act (CBA). According to the 2007-2009 CBA, Petitioners’ union waived the section 3020-a procedures, allowing the letter of reprimand in tenured teacher’s filed and replaced it with a different procedure stated in Article 21A.

Supreme Court granted the petitions and ordered the letters be expunged from the Petitioners’ files. However, the Appellate Division reversed the decision and denied the petition.

According to Section 3020, “a CBA negotiated between respondent and the United Federation of Teachers, petitioners’ union, can modify or waive the 3020-a procedure.” The Supreme Court agrees that Article 21A of the 2007-2009 CBA states the procedure directing the placement of reprimands letter in tenured teacher’s files. Article 21A is broad provision that clearly states procedures for letters of reprimands and the issue in these two cases fell within the purview of Article 21A.

The Supreme Court concluded that the union knowingly waived the procedural rights granted in Education Law § 3020-a. Therefore the letters of reprimand are not subject to 3020-a procedures and Petitioners are not permitted to have them expunged.

For both cases, the Order is affirmed, with costs.

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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In the Matter of John Dickinson v New York State Unified Court System, Office of Court Administration

Pursuant to Article 78, Petitioner, John Dickinson, seeks to annul the determination of Respondent, Office of Court Administration (OCA), to terminate Petitioner.

John Dickinson, Petitioner, was an Associate Court Clerk for OCA. He was terminated from his position on May 24, 2010 due to charges of excessive absence from work and excessive lateness. A written Report and Recommendation dated April 24, 2010 was submitted by Deputy Chief Administrative Judge Joan B. Carey. According to the Report, “…pattern of excessive absence and latenesses demonstrates in crystal clear fashion his [Petitioner] lack for fitness in this job title.”

Petitioner sought to annual OCA’s decision to terminate him because the Administrative Judge took into consideration additional time sheets that were submitted in OCA’s Brief but not presented at the hearing. Petitioner contends that this was a “manifest violation of due process” and that the penalty of termination was cruel. Petitioner also “…argues that the questions presented here is where there was substantial evidence in the record to support the Report, so as to require that this petition be transferred to Appellate Division, First Department, for consideration under CPLR 7804(g).”

CPLR 7804(g) states that issues of substantial evidence raised in a hearing are required by law to be transferred to the appellate division and “…Article 78 prohibits the Supreme Court from reaching the issue of whether an agency determination is supported by substantial evidence,” and requires the petition be transferred to the Appellate Division.

The Judicial Hearing Officer had an abundance of documentation as to petitioner’s transgressions, therefore the additional documents submitted after the hearing did not really play any part in the decision of termination. So, “the only matter before this court is whether the JHO’s determination that petitioner was excessively absent or late so at to warrant the penalty of termination, is supported by substantial evidence.

Therefore, it is ORDERED that this issue be transferred to the Appellate Division, First Department, for review and determination.

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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Both parties have started separate legal proceedings to have the Town Land Use Board of Appeal decision thrown out. The Land Use Board of Appeals determined which ruled that the “addition of an asphalt batch plant to a nonconforming quarry is an expansion of mining and requires a special use permit from the Planning Board of the town of Russia.” 

The first petition was filed in early March by 14 residents living near the proposed asphalt plant. The “citizens’ petition” is requesting the court prevent the town planning board from making a decision based on the appeals board’s determination. Also, they are requesting that Respondents, Material Sand and Troy Sand and Gravel, be prohibited from constructing and operating a plant there.

The second petition, “the company’s petition,” was filed on behalf of Material Sand and Troy Sand and Gravel requesting that the Land Use Board of Appeals’ decision be dismissed due to “pre-existing nonconforming use consisted not only of ‘mining’ bt also related aggregate product manufacturing” and for the court to allow the construction of an asphalt plant without the issuance of a special use permit.

Read full article here.

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In the Matter of Department of Correction v Stanley Saint-Phard

In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold.

On October 16, 2008, Eric Smith, an inmate at George Motchan Detention Center was mopping up an area near the A station. Respondent entered the area and asked Smith to return to his cell. After some conversation between the two, Respondent dispersed oleoresin capsicum (“OC”) spray towards Smith’s face. Then Smith began to leave the room when Respondent grabbed him and walked him to the front of the A station wall. Smith began to remove one of his hands from the wall when Respondent brought him to the ground and restrained him.

There were several testimonies by witnesses, but the crucial evidence in this case was the videotape of the incident. The videotape did not have sound, but it depicts that Smith’s hands were behind his back when Respondent used the OC spray within a the three feet radius and is also shows that Respondent’s left arm was around Smith’s neck and he maintained that hold while forcing him to the floor.

First, the video evidence showed that Smith was compliant and not aggressive immediately prior to being sprayed and contradicts Respondent’s written statement. Respondent use of the OC spray was prohibited under the Directive 4501R-E. Directive 4501R-E states that “that dispersal of hand-held chemical agents is authorized to defend oneself, another employee, inmate or visitor, to maintain the safety and security of the facility, or to enforce Department rules where necessary to promote the good order and safety of the facility.” Also, Respondent use of the OC spray was impermissible because the directive states that use the spray in less than three feet away from the intended target because spraying the OC spray in close range can cause severe eye and skin irritation or other injuries.

Second, Respondent’s written statement he maintained that he put Smith in an upper body control hold. However, in. the videotape showed that Respondent pushed Smith up against the wall and then put his arm around Smith’s neck. Directive 5006R-C § V (C) prohibits the use of the chokehold except in situations where there is deadly physical force. According to Directive 5006R-C § V (C), you are allowed to use deadly physical when there is no other reasonable alternative to stop or prevent an escape, or when an officer must “defend him/herself of another person from what he/she reasonably believes to be the use or imminent use of Deadly Physical Force by the inmate.” Respondent’s use of the chokehold was unnecessary and is constituted as excessive force.

Lastly, Respondent written statement and use of force report was false and misleading and he submitted the report approximately eleven days after the incident, on October 27, 2008. When an officer is in a use of force incident, a report must be submitted before leaving the facility on the day of the incident. The only exception to this is if you are injured than the use of force report can be submitted at a later time. Respondent claimed that he sustained an injury during the use of force incident and was immediately taken to the hospital. Respondent acknowledges that he may have been back to work before October 27, but cannot provide any plausible reason as why he did not submitted the use of force report earlier.

The Administrative Law Judge has come to the following conclusions: (1) although there was no evidence of actual choking, the use of pressure around someone’s neck can potentially cause serious or even fatal consequences; (2) the use of the OC spray at a close range is also dangerous because of the risk of retinal damage with a pre-existing condition; and (3) submission of a late and misleading use of force report is wrong. Due to Respondent have no prior disciplinary record during his five years as a Correction Officer, it is recommended that Respondent be suspended for 60 days.

Read more about this case here.

To read about more similar cases go to http://www.sheerinlaw.com/?id=78.

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In the Matter of Jerome Skrine v New York City Department/ Board of Education

Petitioner brought this Article 78 proceeding to seek to compel Respondents to accept the revocation of his resignation.

On October 31, 2008, Petitioner resigned from his position as a tenured special education teacher. In a letter dated June 10, 2010, Petitioner stated that he wanted to revoke his resignation. However, the Board of Education refused verbally. Petitioner went on to admit that he resigned in October 2008 while there were disciplinary charges that were pending against him and the Board of Education did not grant him his due process.

Petitioner also maintained that this Article 78 proceeding is timely because “…the statue of limitations runs from the rejection of the revocation itself, which occurred in June 2010.” Under the Chancellor Regulation C-205(28), Petitioner claimed that he allowed “…to revoke his resignation within five years of the resignation, BOE is mandated to accept the revocation.”

The Court ruled that Petitioner’s action to revoke his resignation in October 2008 was barred by the four month status of limitations. Therefore, any claims Petitioner made after March 2009 was barred.

The court decided to grants the Respondent’s cross motion to dismiss on the ground that the statue of limitations expired and for failure to state a cause of action was granted. The petition was denied and the proceeding was dismissed.

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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Matter of Richard J. Sherwood v Town of Lancaster

In this Article 78 case, the petitioner sought to appeal the Supreme Court ruling that he was ineligible to receive credit for unused vacation and sick leave accrued as of the date of his retirement.

According to the Appellate Division, petitioner resigned from his position as Town Attorney, therefore making him ineligible for a credit of unused vacation days. Because the petitioner chose to resign effective immediately, he is not entitled to that credit, which follows the explicit terms of Article 3 of the Collective Bargaining Agreement.

Petitioner’s also alleges that he is entitled to credit for unused sick days, which falls under Article 5 of the Collective Bargaining Agreement. The court concluded that the CBA provisions concerning retirement unambiguously apply to petitioner, entitling him to a credit for unused sick leave that he accrued. Previously, the court made a mistake in concluding that Article 5 of the CBA applied only to those who have actually applied for retirement through NYS Employee’s Retirement System to receive credit for accumulated sick days. The CBA stated nothing to this effect. Therefore, the court concluded that the retirement stated in Article 5 of the CBA applies to the petitioner, making him eligible to a credit for accrued sick days.

The judgment was modified. Petitioner’s claims under the CBA and under the Retirement and Social Security Law § 41 (j) were granted for only the accumulated sick days from the date of petitioner's reappointment as Town Attorney through the date of his retirement.

Read more about this Article 78 employment case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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On Tuesday night, members of the Midstate Regional Emergency Medical Services Council voted to deny the city of Utica’s application for a certificate of need that would have allowed it to continue responding to medical calls with ambulances. The council feels that Utica failed to prove that a need exists for the city ambulance service.

The city has 30 days to appeal this decision and the Mayor plans to appeal right away. The appeal would be filed with the state Bureau of Emergency Medical Services of the state Department of Health. If the state agrees with the decision made by the regional council then Utica’s next course of action would be to file an Article 78 appeal in state court. Utica officials feel that their ambulance service provides a continuity of care that is not present with the private ambulances. Another benefit of the city ambulance service is that it generates an average of $540,000 in profit yearly for the city.

Read full article here.

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In East Hampton, a group of neighborhood residents have banded together in opposition to a structure that they feel will tarnish the surrounding area. They have filed an Article 78 appeal to challenge the town’s Architectural Review Board (ARB) and Planning Board’s approval of the application.

The proposed building has already been awarded LEED status (Leadership in Energy and Environmental Design) by the US Green Building Council as well as a commendation from the Peconic branch of the American Institute of Architects for the design’s environmental consciousness and long-term sustainability. The proposed structure features recycled removable cedar shingles that can be rotated to mitigate the effects of weathering over time and a botanical garden on the roof to insulate the offices and absorb storm water.

The issue that opposing neighbors have with the construction of this building is its proposed location, directly across the street from the historic Sarah Lester House and Barn. This 250 year old homestead is being awarded historic designation by the Town of East Hampton and being restored using town funds. Those in opposition feel that the proposed new-age structure will be incongruous with the surrounding neighborhood. The neighbors’ lawyer feels that the Planning Board did not fully review their concerns and neglected to consider the total impact of the proposed building, specifically the Lester property, prompting the residents to file an Article 78 against the ARB and Planning Board challenging the board’s finding that there will not be any adverse affects on the neighborhood.

Read article here.

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Zupa v. Zoning Board of Appeals of Town of Southhold  Index #29166/06 Appellate Division, Second Department

Zupa appealed Southold's interpretation of the Town Code sect 280-121(A) that the proposed realignment of the dock/marina would not be a change that would render inapplicable the provisions concerning non-conforming uses.  The Court held that the Town Board decision was rational and not arbitrary and capricious.  The appeal was dismissed. Read the decision here:   www.nycourts.gov/reporter/3dseries/2008/2008_08748.htm

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A Nassau County Supreme Court judge has recently ruled that an employer need not attend a anger management counseling to accommodate an employees disability. In the decision issued recently employee alleged that his Parkinson's disease was exacerbated by an employer's volatile behavior. The plaintiff alleged that the employer assured him he would remain calm to avoid disturbing the plaintiff/employee. When the employer failed to do so the employee brought suit. Among other determinations the judge hearing the case found that although anger management may be imposed in child neglect and matrimonial cases the for an employer to attend anger management goes beyond "reasonable" accommodation in the workplace Racing Recovery LLC V. Abbate 017764\2005 Decided 8/10/07

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