New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Clarke v Town of Sand Lake Zoning Board of Appeals

This article 78 proceeding was an appeal from a judgment dismissing petitioner’s application to review a determination of respondent, Town of Sand Lake Zoning Board of Appeals, issuing a building permit and certificate of occupancy to respondents Richard and Diane Morris.

Petitioner, Nancy Clarke, owns property in Sand Lake adjacent to the lakefront property owned by respondents, Richard and Diane Morris. In June 2006, respondent Town of Sand Lake Code Enforcement Officer issued a building permit. Petitioner appealed to respondent Town of Sand Lake Zoning Board of Appeals (ZBA) and commenced an action in Supreme Court. The court dismissed this action.

Petitioner commenced this article 78 proceeding to annul the ZBA’s decision. The Court notes that petitioner was aware that construction was occurring on the neighboring property prior to and during the construction and did not appeal to the ZBA until late October 2006. The doctrine of laches bars petitioner’s challenge due to her delay in seeking protection for her interests and her inability to provide a reason for not acting sooner. Also, the ZBA’s determination was not arbitrary and capricious.

Accordingly, the Supreme Court affirmed the judgment, without costs.

• Print
• Comments
• Trackbacks

Matter of Woodland Community Association v Planning Board of Town of Shandaken

This article 78 appeal was brought against a judgment dismissing petitioners’ application to review a determination of respondent Planning Board of the Town of Shandaken granting respondent Good Water Corporation’s application for site plan approval and a special use permit.

In 2006, respondent Planning Board approved a special use permit to Good Water Corporation for the proposal to collect and haul away water to be sold for non-potable uses such as filling swimming pools. Petitioner, Woodland Community Association, in an article 78 proceeding sought to have the Planning Board’s resolution annulled. The Supreme Court dismissed the petition which prompted this appeal by petitioners.

The Court agrees with petitioner’s argument that the Planning Board lacked jurisdiction to determine the water collection was a special use permit. The Town Zoning Code only identifies “water bottling and related uses” as being relevant to a special use permit. Good Water’s proposed use did not involve the bottling of water at any location. Only the Zoning Board of Appeals has the authority to interpret the Code’s provisions and the Code expressly states that a special use not specifically listed is prohibited unless deemed a similar use by the ZBA. Thus, the Planning Board had no authority to approve Good Water’s application for a special use permit.

Accordingly, the Supreme Court ordered the judgment reversed, without costs, petition granted, and matter remitted to respondent for further proceedings not inconsistent with Court’s decision.

• Print
• Comments
• Trackbacks

Matter of Monreal v Administrative Review Board of the State Board for Professional Medical Conduct

Petitioner, F. Javier Monreal, brought about this Article 78 to review determination of respondent which revoked petitioner’s license to practice law in New York. Last year, petitioner who is a pediatric neurologist was personally served with a notice of hearing and statement of charges alleging multiple instances of misconduct involving his treatment of 12 children. When contacted by the Administrative Law Judge (ADJ), petitioner said he would not attend the hearing. All subsequent letters regarding the upcoming hearing petitioner returned unopened. Due to petitioner’s failure to respond, the charges were deemed admitted and his license to practice medicine in New York was revoked.

Petitioner argued that he suffered from a mental health affinity and thus the Committee’s decision should be vacated and a hearing conducted. No evidence exists to support a claim that petitioner did not understand the charges against him. In fact, the evidence proves the contrary. Instead of answering the charges, petitioner wrote a letter to the Department of Health and State Board for Professional Medical Conduct saying that he was commencing a separate action to prevent the hearing from taking place. These circumstances make it apparent that petitioner understood the charges against him and was able to assert his legal rights.

Accordingly, the Supreme Court confirmed the determination, without costs and dismissed the petition.

• Print
• Comments
• Trackbacks

Matter of Island Mermaid Restaurant Corporation v New York State Liquor Authority

Petitioner, Island Mermaid Restaurant Corp., brought about this Article 78 appeal to review determination of the New York State Liquor Authority which found petitioner to have violated Alcoholic Beverage Law 106(6).

The respondent alleged that petitioner permitted the licensed premises to become disorderly. One of the petitioner’s employees verbally abused patrons and was involved in a physical altercation while ejecting these patrons from the premises. The petitioner argued that the evidence did not prove that licensee permitted the disorderly conduct. The incident was spontaneous and isolated and involved a nonmanagerial employee. No testimony was produced saying that the manager was aware that the incident was taking place nor was there any evidence that the employee involved had any history of any similar instances.

Accordingly, the Supreme Court granted the petition, with costs and annulled the determination.

• Print
• Comments
• Trackbacks

Yesterday, Nassau officials made known their plans to appeal a $950,000 award in a federal lawsuit by a correction officer who convinced a jury that she was denied the opportunity to become a police officer due to gender discrimination and harassment.

County Attorney Lorna Goodman said Luca was not retaliated against but that “She simply was unable to satisfactorily explain her expensive homes and cars on a correction officer’s salary.” Thus, she didn’t pass the investigation.

Read the full article here.

• Print
• Comments
• Trackbacks

Matter of Patricia Luca v Nassau County

Patricia Luca’s conflicts with Nassau County began in November 2000 when she was subject to sexual harassment at the county jail in East Meadow where she is employed. According to Luca, a fictitious scenario using her name was distributed while she was attending a workshop with colleagues. This scenario humiliated her and made her the butt of lewd comments. Luca filed a lawsuit regarding this incident and received an out-of-court settlement.

Luca claims that her challenging the county resulted in her being prevented from achieving her dream job of becoming a Nassau County police officer. She took the police officer exam in 1994 and was eligible to be hired but her name was passed over until she reached the max age and was no longer eligible. Luca sued Nassau County for a second time charging retaliation by the county.

After seven years in court, Patricia Luca was awarded a total of $949,973.86 in damages and lost pay, legal fees, and other costs.

Read the full article here.

• Print
• Comments
• Trackbacks

Matter of Solomon v Department of Buildings of City of New York

Petitioner, Jeffrey Solomon, brought about an Article 78 petition for an order directing respondent to either grant petitioner’s application for a master electrician license without any further hearing  and barring the Master Electrician Licensing Board (MELB) from investigating the quality of petitioner’s supervision by a master electrician and directing MELB to consider only petitioner’s character and fitness as an applicant.

Petitioner argued that MELB would be acting in excess of its jurisdiction by considering the sufficiency of his supervision by a master electrician for the requisite time period. The law does not preclude MELB from evaluating the sufficiency of the requisite supervision as long as that evaluation is not arbitrary, capricious, irrational or unlawful.

The Court also rejected petitioner’s argument that he is entitled to have his license application considered under the laws existing before certain modifications to the statutes in 2003. Applications are determined based on the law as it exists at the time of the decision, and the reasons supplied by the petitioner for relying on an outdated standard did not sway the Court’s decision.

Accordingly, the Supreme Court denied the petition.

• Print
• Comments
• Trackbacks

Reinhard v City of New York

Petitioner, Christopher Reinhard, brought about petition to appeal the decision terminating him from the FDNY for illegal drug use. Petitioner argued that he was denied due process because the disciplinary hearing was conducted in his absence. The Court made multiple attempts to contact petitioner at his home address, through his attorney, and through his union. Petitioner did not inform the Court that he had entered an inpatient treatment facility. He was fully aware that disciplinary action would follow his positive test result and should have given notice of a change of address. Accordingly, the Supreme Court dismissed the petition, without costs.

Kirk v City of New York

Petitioner, Michael Kirk, tested positive for cocaine during a random drug test and the Fire Department terminated his employment. Petitioner argued that the random drug testing policy is unconstitutional. Although alcohol dependency qualifies as a disability under Human Rights Law, drug abuse does not and petitioner failed to prove his drug use to be casually related to his alcoholism. Accordingly, the Supreme Court dismissed the petition, without costs.

O’Neill v City of New York

Petitioner, Kevin O’Neill, was terminated for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision. Petitioner argued that changes were made to the Fire Department’s policy regarding drug usage subsequent to his termination. The Court rejects petitioner’s claim that the changes should be retroactively applied to his case. Accordingly, the Supreme Court dismissed the petition, without costs.

• Print
• Comments
• Trackbacks

Smith v. New York City Department of Correction

Defendant, Kenneth Smith, made an appeal to annul his termination from the New York City Department of Corrections. Smith argued that he was terminated without notice or a hearing. The Court stands by the fact that he was a probationary employee at the time of his termination and it is a well known fact that a provisional or probationary employee may be discharged for any or no reason as long as the dismissal was not in bad faith.

The one factor that the Court considered was the fact that Smith’s probationary period had been extended by the number of days he was absent from duty. This extension was the reason Smith was still in probationary status at the time of his termination. Smith argued that he should have been given notice that his probationary period had been extended. The Court ruled that Smith was not entitled to notice because he signed a form acknowledging this and other conditions of his probation.

Accordingly, the Supreme Court dismissed the petition and the Appellate Division affirmed the lower court’s ruling.

• Print
• Comments
• Trackbacks

Matter of Friends of Stanford Home v Town of Niskayuna

Article 78 appeal from a judgment which granted petitioner’s application to annul a determination of respondent Town Board of the Town of Niskayuna issuing a special use permit to respondent Highbridge Development BR, LLC.

Petitioners filed this Article 78 proceeding to annul the negative declaration and the special use permit for Standford Crossings, and to gain injunctive relief prohibiting approval or further development of the State Street site. Supreme Court granted the petition which led to Highbridge and respondent LJC Properties, LLC’s appeal.

Petitioners’ argument is that contingencies in the contract of sale for the State Street property establish a nexus between the two projects. Respondents contend that the State Street and Consaul Road projects are unrelated actions with independent utility and that the Town Board did not impermissibly segment review of the two projects.

The Court sides with respondents and feels that the contractual contingencies, standing alone, do not create a geographic or environmental interrelationship between the two projects and that the contractual link between the otherwise independent actions is not sufficient to establish that they are part of an overall plan of development requiring cumulative review.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and petition dismissed.

 

• Print
• Comments
• Trackbacks

Timmerman v Board of Education of City School District of City of New York

In February 2007, Supreme Court ruled against Petitioner, Dolph Timmerman, in his Article 78 petition seeking to direct respondents to reimburse petitioner for the expenses he incurred defending himself against criminal charges leveled against him by two of his students.

Respondents contend that petitioner’s criminal proceeding does not fall within the scope of Education Law 3028. Since the record shows that the criminal proceeding against petitioner clearly arose directly from the disciplinary actions he took against pupils, respondents should reimburse petitioner for the attorneys fees and expenses he accrued defending himself.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and the petition granted.

 

• Print
• Comments
• Trackbacks

Muto v NYS Executive Department Division of Human Rights

Petitioner, Joseph F. Muto, sought to annul decision to terminate his probationary appointment on the grounds of bad faith and arbitrary and capricious action.

 Petitioner was hired by respondent, New York Division of Human Rights, for a probationary period of one year. On his application, Muto wrote that though he had worked as a practicing attorney in New York, he was not admitted to the New York bar. Petitioner said that the reason for this was because he was disbarred for negligent client representation by failing to appear for out-of-state cases due to his fear of flying and heights.

 During his probationary period, the senior staff held a meeting to review plaintiff’s personnel file and determined that he failed to fully disclose the reasons for his disbarment. A total of 43 serious charges were brought against petitioner and he was terminated.

 Muto then brought about this Article 78 proceeding on the ground that his termination was done in bad faith and was arbitrary and capricious. Petitioner’s arguments fail to show that respondent’s determination was in bad faith. Petitioner argued that respondent could have discovered all the details of his disbarment as a matter of public record but this does not mitigate the fact that Muto disclosed certain aspects of his disbarment while hiding others.

 Petitioner did not meet his burden to show a triable issue of fact to support a claim of bad faith, improper motive, arbitrariness or capriciousness.

 Accordingly, the Supreme Court grants the Respondent’s Cross Motion to dismiss this Petition.

• Print
• Comments
• Trackbacks

Matter of DeStefano v Board of Cooperative Educational Services of Nassau County

Index No. 11638/06

Petitioner brought about this Article 78 proceeding to review a determination by the Board of Cooperative Educational Services of Nassau County (BOCES) demoting her from her position as a Teacher’s Aide to that of a School Monitor awarding her back pay of $25,927.05. January 2004, BOCES found petitioner guilty of misconduct and terminated her employment as punishment. In February 2006, the Court found that the sanction of dismissal was so disproportionate to petitioner’s misconduct as to be shocking to one’s sense of fairness and demanded a less severe punishment. March 2006, BOCES demoted petitioner to the position of School Monitor and awarded her back pay based on a School Monitor’s salary, which was less than a Teacher’s Aide salary.

 Petitioner commenced an instant proceeding to review BOCES’ determination. The Supreme Court dismissed the proceeding. No basis exists for annulling the determination of BOCES to base the back pay on a School Monitor’s salary.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

• Print
• Comments
• Trackbacks

Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

• Print
• Comments
• Trackbacks

The Brooklyn Bridge Park Legal Defense Fund brought this Article 78 to review whether the Final Environmental Impact Statement (FEIS) prepared the Respondents New York State Urban Development Corporation failed to take into account the potential traffic impacts from the Atlantic Yards Project. The standard of review was whether the detemination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, of a violation of lawful procedure (CPLR 7803(3).  The Court held that the FEIS did take into account traffic expected to be generated by the project. Additionally, the traffic analysis was reviewed by the NYC DOT.  Finally, the public trust doctrine was not violated by the plan of locating residential housing on the development project.  The full decision can be found here: www.courts.state.ny.us/reporter/3dseries/2008/2008_03641.htm

• Print
• Comments
• Trackbacks

Alexander v. NYS Office of Children and Family Services
Index # 20906/06

The Appellate Division, Second Department determining this Article 78 Petition held that there was substantial evidence in the hearing record to uphold the determining of the designee of the Commissioner of the New York State Office of Children and Family Services to revoke the Petitioner's licencse.  The penalty of license revocation was neither arbitrary and capricious nor disproportionate to the misconduct.  The decision can be found here www.nycourts.gov/reporter/3dseries/2008/2008_03451.htm

• Print
• Comments
• Trackbacks

Article 78 Motion to Annul Disqualification Denied

Rivers v. New York City Department of Sanitation

Index No. 104210/07

The Supreme Court of New York County granted respondents’ cross motion to dismiss petitioner’s Article 78 proceeding seeking to annul respondents’ determination disqualifying petitioner from consideration for the position of sanitation worker affirmed.

 The court did not convert the cross motion to dismiss the petition for failure to state a cause of action into a motion for summary judgment without notice. Instead, the court found that petitioner was unable to show cause of action that respondents acted arbitrarily, capricious, or without a rational basis. The determination finding petitioner medically not qualified for the position of sanitation worker was rationally based on findings that she suffered from left ventricular hypertrophy and had elevated blood pressure. Respondents relied on conclusions of Department of Sanitation’s medical director, not the conflicting opinions from petitioner’s physicians.

 Accordingly, the Supreme Court denied the petitioner’s appeal and granted respondents’ cross motion to dismiss.

• Print
• Comments
• Trackbacks

Seemangal v New York State Office of Children and Family Services

Index No. 112461/06

New York State Office of Children and Family Services suspended and revoked petitioner’s license to operate a group family day care home due to violation of four Department of Social Services regulations. Petitioner, Diwantie Seemangal, appealed this decision in an Article 78 petition. The Court determined that petitioner’s due process rights were not violated by the issuance of the report by a person who did not preside at the hearing and the determination to revoke petitioner’s license does not shock the conscience. Petitioner’s remaining arguments were considered and found without merit.

 Accordingly, the Supreme Court denied the petition and dismissed the Article 78 proceeding.     

For the NYS Office of Children and Family Services click herewww.ocfs.state.ny.us/main/

• Print
• Comments
• Trackbacks

Mankarios v. New York City Taxi and Limousine Commission

Index No. 107087/06

Petitioner Boutros Mankarios sought to appeal respondent Taxi and Limousine Commission’s denial of petitioner’s application for a taxi driver’s license. The petition was denied and the proceeding dismissed.

 Petitioner was issued a license by New York City Taxi and Limousine Commission to operate a taxicab in 1998. In 2002, petitioner pled guilty to an incident that occurred in his cab involving two 14-year old female passengers and surrendered his TLC license.

Petitioner reapplied for a license in 2005 and was denied. Petitioner commenced this Article 78 proceeding challenging TLC’s decision. Supreme Court granted the petition, annulling the decision and directing TLC to grant the application. TLC responded with an appeal.

 The only issue in question was whether TLC’s denial of petitioner’s application was arbitrary and capricious. TLC made their decision to deny petitioner’s application based on the serious misconduct of petitioner and the fact that only three years had passed since it occurred.

 Since TLC’s determination has a rational basis, the Court denied this Article 78 petition.

Click www.nyc.gov/html/tlc/html/home/home.shtml for the NYC Taxi and Limousine Commission website.

• Print
• Comments
• Trackbacks

Schmidt v Putnam County Office of the Sheriff

Index No. 1432/06

Petitioner Jeffrey Schmidt brought this Article 78 proceeding to review the Putnam County Sheriff’s denial of disability benefits. The Supreme Court granted the petition and awarded the petitioner disability benefits.

Petitioner suffered an on-the-job fall on January 31, 2003 causing medial meniscal tears requiring subsequent surgical repair. In order to be eligible for disability benefits, a covered municipal employee must prove direct causal relationship between job duties and the resulting injury. Though the petitioner had a preexisting knee injury, the medical records unequivocally established that the injuries sustained were a result of his on-the-job fall and that these line-of-duty injuries were a direct cause of his disability.

 Accordingly, the Putnam County Sheriff’s denial was not rationally based on evidence presented and thus, the Court dismissed the denial as arbitrary and capricious.

Click www.putnamsheriff.com/ for the Putnam County Sheriff's Office Website

• Print
• Comments
• Trackbacks

Cotter v. Board of Ed. of the Garden City U.F.S.D., 19661/07
Decided: March 5, 2008

The petitioner initiated this proceeding for a judgment declaring that the respondent has failed to perform a duty upon it by law and engaged in conduct that is in violation of lawful procedure, affected by an error of law, and is arbitrary and capricious, or an abuse of discretion by refusing to save harmless and defend and indemnify the petitioner in a civil action pending in Supreme Court, County of Nassau. The petitioner also sought a judgment that the school district violated a settlement agreement that it would defend and indemnify the petitioner if he were to be sued.

Cotter and McCarthy were in the Garden City High School library grading papers.  When McCarthy wanted to leave the table Cotter protested and the two began a scuffle. McCarthy filed suit versus Cotter and the school district.

Cotter had signed an agreement with the school district that he "may" obtain defense and indemnification from the school district "to the extent permitted by law." McCarthy alleged injuries to his neck.
The Court held that the District's decision not to defend nor indemnify Cotter was not arbitrary or capricious. (CPLR 7803.) The Court dismissed the Petition..
The Garden City School District website can be found here www.gardencity.k12.ny.us/

• Print
• Comments
• Trackbacks

Pinder v. City of New York                    Index #113435

Plaintiff sued under 42 USC 1983 for damages of violations of Due Process and Employment Discrimination under Executive Law sect 296.  The First Department dismissed the complaint and held that Plaintiff was a non-tenured paraprofessional without property rights in her position.

Plaintiff had not proven that there was a “stigma-plus” due process claim as there was no proof that the reasons for her discharge was published to prospective employers.  Finally, the Court wrote that due process was satisfied when the Plaintiff used the CBA’s grievance procedure and an filed an Article 78 petition.

The City’s website is www.nyc.gov

• Print
• Comments
• Trackbacks

Murray v. Downey Index No 11224/06

This was an Article 78 to review Bronxville’s Police Chief’s decision to dock a single day’s pay from Joseph Murray. The Respondent’s moved to dismiss for Petitioner’s failure to exhaust his administrative remedies prior to filing an Article 78. 

The Appellate Division, Second Department affirmed the dismissal.

Petitioner filed a grievance with respect to the decision that petitioner Joseph Murray was not allowed to use sick leave on May 30, 2005. The grievance found its way to the Police Chief; Village Administrator and Village Board of Trustees. Petitioners failed to then send the grievance to arbitration as required by the Collective Bargaining Agreement. The Bronxville Police Department website is: villageofbronxville.com/subc2_police.htm

• Print
• Comments
• Trackbacks

Matter of Civil Serv. Employees Assn. Inc. v Diana

• Print
• Comments
• Trackbacks

The following was originally posted at Public Personnel Blog of Harvey Randall, Esq.

Disqualifying an applicant for appointment by a civil service commission
Matter of Murray v County of Nassau Civil Service Commission, 2007 NY Slip Op 50927(U), Supreme Court, Nassau County, James P. McCormack, J.

The Nassau Civil Service Commission disqualified Sandor Murray for employment as a Nassau County Police Officer. The Commission based its determination of Murray’s alleged failure to meet the “psychological requirement of the position.”

Murray, claiming that the Commission “acted in an arbitrary and capricious manner” when it disqualified him for appointment as a police office, filed an Article 78 petition seeking a court order directing his appointment as a Nassau County Police Officer.

Judge McCormack dismissed Murray’s petition, holding that the Commission’s decision was not irrational. Indeed, said the court, its determination is “supported by substantial evidence.” In addition, Judge McCormack found that the Commission had complied with New York Civil Service Law Section 50(4) when it considered whether Murray should be disqualified for appointment as a police officer. *

According to the decision, the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to an inquiry into whether the agency acted arbitrarily and, or, capriciously.

Noting that a civil service commission has wide discretion in determining the fitness of candidates, Judge McCormack, citing Verne v. Suffolk County Department of Civil Service, 5 AD2d 498 and Needleman v. County of Rockland, 270 AD2d 4, said that the exercise of such discretion “is particularly broad in the hiring of persons for position in law enforcement, to whom high standards must be applied.”

The decision points out that although Murray’s medical expert’s opinion differed from that of the Commission’s medical expert, “[i]t is not for the courts to choose between diverse professional opinions.”

Thus, said the court, “where there is any rational basis or credible evidence in support of an agency’s determination,” the administrative decision will be upheld (see Matter of Curcio v. Nassau County Civil Service Commission, 220 AD2d 412).

____________

* Section 54.4, in pertinent part, provides: No person shall be disqualified pursuant tothis subdivision unless he [or she] has been given a written statement of the reasonstherefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

Source: Initially published on the Internet in New York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

• Print
• Comments
• Trackbacks

Chan v. Kelly, the New York Police Department, and the City of New York
Index No. 110513/07

Petitioner William Chan sought reinstatement as a police cadet by respondents Raymond Kelly, the New York City Police Department, and the City of New York in this Article 78 petition. 

Patrol Guide §212-34 governs probationary police officers, and states in part that when a probationary police officer or person eligible for appointment to the NYPD is involved in a police incident, a member of the service must report the incident to a commanding officer. The Police Cadet Corps Handbook also states, at § 105-4, that “[a] police incident not only involves arrests but includes all police incidents”. 

While Chan denies he violated written procedure, he does not deny that he left the scene of a serious multi-car accident, that he did not attempt to render assistance, and that he failed to notify a commanding officer. On the basis of these facts, respondents concluded that Chan violated Patrol Guide §212-34 and “failed to demonstrate the integrity, judgment, and character required of either a New York City Police Officer or a Police Cadet”. 

The court wrote that:

“Chan’s petition does not meet this burden [of bad faith]… On the contrary, evidence in record supports the conclusion Chan was discharged by respondents in good faith on the basis of his unsatisfactory performance.” 

Accordingly, the Court denied this Article 78 petition.

 Read entire article here.

• Print
• Comments
• Trackbacks

Overview of medical and psychological disqualifications

 The NYS Civil Service Law along with the NYC Charter authorizes the DCAS Commissioner to disqualify a potential candidate to a competitive position for failure to meet medical and psychological standards. If this occurs, the candidate has the right to appeal the disqualification to the New York City Civil Service Commission.

 Section 814(a)(6) of the New York City Charter provides that the DCAS Commissioner investigates and reviews the qualifications of applicants for positions in civil service.

 Section 813(d) of the Charter provides that the CCSC has the power to hear and determine appeals.

Section 815(a)(5) provides that agency heads assist DCAS in reviewing and evaluating a candidate’s qualifications, a Section 815(a)(18) permits the delegation by the DCAS Commissioner of certain personnel management functions to agency heads.

 It is the Hiring Agency’s responsibility to ensure that these processes are followed with regard to candidates for positions in its agency.

 The CCSC will forward appeals and documentation, if submitted, in support of an appeal of medical and psychological disqualifications to the office within each Hiring Agency for such purpose. The Hiring Agency will first ascertain that the appeal to the CCSC was filed by the candidate within thirty days of the date of the action. If the candidate did not file the appeal with the CCSC in a timely fashion, the Hiring Agency will request that the appeal be dismissed on that basis.

 When filed in a timely fashion, the Hiring Agency will, prior to preparing any submission to the CCSC to support the disqualification, afford the disqualified candidate sixty days in which to submit medical documentation to support the appeal.

 If a candidate submits medical and/or psychological documentation to support the appeal from the disqualification, the CCSC will forward any new documentation to the office within each Hiring Agency identified for such purchase. The Hiring Agency will review and give due consideration to each new documentation commensurate with the weight of the new documentation. Review and consideration may include scrutiny of the documentation by a doctor of the Hiring Agency or an independent consultant, or a re-examination of the candidate.

 In cases where a Hiring Agency decides not to rescind a disqualification, they are responsible for submitting to the CCSC a cover report explaining the decision to disqualify a candidate. The cover report must contain a reference to the specific medical or psychological standard not met by the candidate, an explanation of how the candidate did not meet this standard, how failure to meet standard prevents the candidate from performing an essential function of the position, and reference to any documentation supplied by the candidate with an explanation as to why said documentation does not serve as a basis to rescind the disqualification. Along with the cover report should be copies of all medical or psychological records that support the disqualification clearly labeled as records in support of the disqualification and copies of all medical or psychological records submitted by the candidate in support of their contention that he or she is qualified for the position clearly identified as records in support of the candidate’s appeal.

 If an evidentiary hearing is determined necessary, the CCSC must forward the notice to the Hiring Agency and the Office Manager of the Office of the General Counsel of DCAS.

 The Hiring Agency is responsible for maintaining statistics required by DCAS to ensure that the mandatory processes are being followed. Each Hiring Agency must maintain the statistics of the number of appeals forwarded to the Hiring Agency by the CCSC, the date on which the appeals were submitted to the CCSC, and the date on which cover reports were submitted to the CCSC.

 Read entire article here.

• Print
• Comments
• Trackbacks

Solomon v. The Department of Buildings of the City of New York

 This was an Article 78 Petition decided by the Appellate Division, First Department which sought:

An order directing respondent to either grant the petitioner’s master electrician license without any further hearing or that new rules be promulgated or barring the Master Electricians Licensing Board (MELB) from investigating the quality of petitioner’s supervision by a master electrician for the requisite statutory period of time. The petition was denied.

 The Court found that MELB did not act in excess of its jurisdiction when it considered the sufficiency of the license applicant’s supervision by a licensed electrician. Citing Administrative Code 27-3009(c) the Court held that the MELB is empowered to “investigate the character and fitness…” and report such findings. Neither was MELB required to write rules of procedure in investigating applicants. The applicant did not have a right to the license similar to a present license holder who was facing revocation or suspension of his/her license.

 Accordingly, the Court denied this Article 78 petition. 

• Print
• Comments
• Trackbacks

                                                                                                                                               

Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

• Print
• Comments
• Trackbacks

  Smith v. Board of Education of the City School District of the City of New York,

118947/06

 Ms Eileen Smith, a Social Studies teacher at Far Rockaway High School given unsatisfactory
rating on  June 24, 2004, for the 2003-2004 school year due to an incident occurred on October 21, 2003, the first day of the implementation of a new policy at school. Smith filed an Article 78 proceeding.

One minute after the late bell had rung signaling that classes had changed, teachers were required to lock their classroom doors. In Ms. Smith’s class, the ones locked out banged on her door to compel the teacher to let them in. Ms. Smith then attempted to leave the room to get help, but two students in the classroom held the door closed.

Ms. Smith acknowledged having used inappropriate language during the chaotic time. Ms. Smith allegedly had said: "This 'fucking' language has to stop. I do not want abusive or profane talk in the class." Ms. Smith had also reportedly said: "I will not continue until the stupids stop," and then presumably in an effort to clarify added: "I mean the stupid remarks. I am not calling anyone stupid."

Ms Smith was found to have "committed acts which are prohibited by the Chancellor's Regulation A-420 Corporal Punishment and Chancellor's Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment." The letter concluded that the finding "may lead to disciplinary action, including an Unsatisfactory rating and termination."

Ms. Smith filed a grievance. An arbitrator ruled that the letter should be deleted from Eileen Smith's file because it is unfair and inaccurate as these terms have been defined by the parties. Also Ms. Smith had received an "Unsatisfactory" rating and immediately appealed it. That hearing was held on May 31, 2006 before the Chancellor's designated Chairperson. 

It was recommended that the appeal be denied and rating of "Unsatisfactory" be sustained.  This Article 78 followed. The Court held that:

The Commissioner and the courts have held that a U-Rating cannot be sustained where, as here, the Chairperson improperly relies on documents which should have been excluded from consideration at the teacher's appeal. The A-420 (report prepared regarding alleged foul language) are not based on any personal observation by any administrator; instead, they are based solely on the hearsay statements written by the students. Thus, the A-420, by itself, cannot support the U-Rating.

Without the various documents, the only evidence left is the undisputed fact that Ms. Smith made the above-quoted statements in the midst of an extremely difficult time in class. The Chairperson's reluctance is revealed by her finding that the evidence "leaves many questions," by her emphasis on Ms. Smith's repeated calls for help.

Thus, while it may well be that Ms. Smith could have achieved her goal by using different language, it cannot reasonably be said that the language she used qualifies as prohibited verbal abuse as defined in the Regulations sufficient to support an Unsatisfactory Rating.
 

The Court reversed the denial of the appeal and directed that the Department remove the unsatisfactory rating from the teacher’s file.

• Print
• Comments
• Trackbacks

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

2. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

3. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

• Print
• Comments
• Trackbacks

ARTICLE 78 - CPLR section 7804(f) MOTION TO DISMISS DENIED

 

            New York State Department of Environmental Conservation made a motion to dismiss Petitioner Frederick Fogelman’s Article 78 to have his land designated a “Brownfield clean-up program”. The NYSDEC had written to Mr. Fogelman on February 22, 2005 that his application to have his land designated a Brownfield was denied. Thereafter, Fogelman argued that the DEC did not issue a final determination. Petitioner argued that the DEC letter was only a single step in a continuing review. The attorney claimed that Fogelman continued to correspond and on July 20, 2006 the NYSDEC’s attorney sent correspondence claiming that the February 22 correspondence from the agency was its final determination.

 

            The court held that a motion to dismiss under Article 7804(f) must determine whether Petitioner has stated a cause of action. If one has been stated the Court next looks to the controlling statute of limitations statute which is CPLR § 217 which states that a four-month period to appeal runs from the time the determination to be reviewed becomes final and binding upon the petitioner. If circumstances are unclear the statute begins to run when the party knows or should have known that it was agreed by the determination. In this case, the court held that issues of fact surrounding the NYSDEC denial and the procedures for making determinations by NYSDEC would favor the petitioner and that in since there were issues of fact regarding whether the denial was final and the exact NYSDEC procedures were unclear that the NYSDEC motion to dismiss must be denied.

 

 

 

 

• Print
• Comments
• Trackbacks

Bahr v. MTA 2007 NY Slip Op 50038U January 04, 2007 (Approx. 2 pages)

Petitioner was an employee of New York City Transit Authority. After his retirement, he brought this suit against New York City Transit Authority when he was informed that he would no longer be receiving health insurance as part of his retirement benefits.

Under Respondent’s system, an employee must have five years of credited service to vest in pension benefits and ten years of credited service to vest for health insurance coverage. Petitioner satisfied the requirements for pension benefits, but was improperly given post retirement health insurance. Respondent had sent Petitioner a letter letting him know he was eligible for post retirement health insurance benefits, and after he had received these benefits for two years, Respondent discovered that he in fact was not eligible for these benefits. Subsequently, Respondent sent Petitioner a letter informing him that he was not eligible for health insurance benefits and his coverage would be terminated. After his insurance coverage was terminated, Petitioner requested for the Court to set aside Respondent’s rule that requires ten years of credited service to be eligible for health insurance. The Court decided against Petitioner stating “Petitioner fails to provide the support for the grounds of such relief and the legal authority of the court to grant such.”

The MTA employment website is www.mta.info/mta/employment/index.html

Tags: Article 78

• Print
• Comments
• Trackbacks