One Year Driver's License suspension affirmed

In this Article 78 case the driver appeal a one year driver's license suspension which was initially imposed by an Administrative Law Judge.  The driver appealed to the NYS DMV Appeals Board.  The driver had fallen asleep at the wheel and her vehicle crossed over into oncoming traffic and struck a vehicle head on resulting in the death of the other vehicle's driver. The Appellate Division Second Department confirmed the one year suspension writing that the Supreme Court was incorrect in reducing the penalty to 60 days. The appeal court held that the one year suspension was not so disproportionate to the offense to be "shocking to one's sense of fairness or an abuse of discretion as a matter of law" read about this Article 78 NYS DMV case here.

Termination of Tenancy Proper when Income is not properly Reported

 NYC HPD moved to terminate the tenancy benefits of petitioner, Perrett when it was found that  Petitioner’s daughter’s $30,000 income was not reported to the subsidizing authority.  The court found that termination of the tenancy was no so disproportionate  to  the offense in light of all the circumstances as to be shocking to once sense of fairness which is the Article 78 standard of review .  Accordingly the termination of the tenancy was confirmed by the Appellate Division, First Department. 

Article 78 appealing SLA license cancellation denied

 In an article 78 case brought in Kings County New York  Sherwyn Toppin Marketing  Consultants Inc. sued the New York State Liquor Authority (SLA) and requested the Supreme Court reverse the SLA's  decision canceling their liquor license.

Agents from the State Liquor Authority had issued violations to the bar for permitting consumption of alcoholic beverages on its premises before and after hours and a continuing pattern of noise and misconduct requiring police attention. Additionally, New York City had commenced a new Nuisance Abatement action for various misconduct and other violations in the Supreme Court.

In the Nuisance Abatement action the Supreme Court had ruled that the city had not proven their case. In the SLA proceeding administrative law judge held a hearing and found that the SLA had sustained charges 5,6, 10, 12 ,13 and 14 with the submission of sufficient evidence. The SLA board adopted the Administrative LawJudge’s findings and canceled the petitioners liquor license

Tthereafter, petitioner commenced this article 78 proceeding to appeal the cancellation. The license holder/appellant brought up the claims that the ALJs findings were contrary to the doctrines of res judicata and collateral estoppel because the Nuisance Abatement Law action had been dismissed. . The court found that neither doctrine applied in this case since in the nuisance action brought by the city the Supreme Court had placed a higher and different burden of proof upon the city than the substantial evidence standard used in the SLA proceeding. Finally the court found that the penalty imposed by the SLA was not so disproportionate to the offense is to be shocking to one’s sense of fairness. Therefore the SLA determination was confirmed and the CPLR Article 78 petition appealing it was dismissed.

Excessive Fines draw Article 78 suit

The New York City Public Advocate filed an Article 78 claiming excessive fines for minor violations against New York City small businesses.  Bill DeBlasio alleged that New York City's revenue push is resulting in hardship for small businesses.  Fines have doubled from $400 millon in 2000 to $800 million in 2011.  

I have seen a rash of ECB cases where the summonses were sent to old addresses or a worksite instead of a corporate office.  One fine was for approximately $100,000 which was dismissed as the accused corporation did not do the work alleged.  

Read more about these NYC violations.

Student's dismissal for plagarism is upheld

The Appellate Division, Second Department held that  Farmingdale State University's decision to expel a student for plagiarism  was rational.  The nursing student reportedly handed in a paper which, according to the professor was similar to another student's paper submitted the prior spring semester.  The Court held that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals" (Matter of Pell) 

Applying the Pell standard to the facts the Court ruled that the student continued to deny the plagiarism and provided and implausible explanation.  

Read about this Article 78 case. 

Nassau Court Officer denied disability pension

At issue in this case was whether being assaulted is inherent in the routine performance of a court officer's duties.  The Appellate Division, Third Department in Albany decided that it was in Kilbride v. NYS Comptroller.  The standard in disability pension cases is: to qualify for a disability pension the accident must be a "sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular employment duties." Rykala v. NYS Comptroller.

Joel Stashenko writing for the New York Law Journal quoted the Court Officer's union head saying that the decision was "absolutely insane" and appeals are planned.  

Article 78. Future Fire Fighhter reinstated to eligibility list (Jeffrey Tamsen v Olivia A. Licata, Director. City of Buffalo)

          In the matter of Jeffrey Tamsen v Olivia A. Licata, Director, City of Buffalo, Petitioner filed an Article 78 against Olivia A. Licata, Director, of Buffalo.  Petitioner filed an Article 78 to annul Respondents determination that he was ineligible for appointment as a firefighter in the City of Buffalo.

           It was ordered that the judgment so appealed from be unanimously affirmed without costs.  Respondent’s determination that he was ineligible was based on Rule 10 of the City’s Classified Civil Service Rules, which states that a person must maintain a residence for 90 days prior to the date of application or the date of appointment.  Respondent was living in a residence within the city for 7 years and was living there before he purchased a house in a different county in May of 2009.  His application was in March of 2008.  Therefore he satisfied the rule.

          It was found that the City’s determination to disqualify petitioner based on his purported failure to comply with Rule 10 was arbitrary and capricious.  Petitioner proved so and it was ordered that petitioner be reinstated on the list to become a firefighter.

Click here to read more about this Civil Service Disqualification case.

To read more articles like this feel free to visit my website.

Probationary NYPD Officer Termination Upheld in Article 78 case

        Petitioner filed an Article 78 to annul Respondent’s determination, which terminated Petitioner’s probationary employment as a police officer; The Court unanimously affirmed the termination. 

          Petitioner failed to state a claim in the petition and did not prove that his termination was in bad faith for an improper or impermissible reason.  Respondents are entitled to discharge probationary police officers “for almost any reason.”  So long as the decision was not made in bad faith.         

          Petitioner believed his termination was based on his refusal to disclose psychological treatment he underwent at the age of six.  Although Respondent claimed that was not the reason, even if it was that would have been a valid reason because materials such as that can be deemed “such omissions as material to his qualifications.”  

          Petitioner failed to allege facts supporting a conclusion that his termination was in bad faith and given his failure to do so, a hearing to resolve the truth of the facts alleged was unnecessary and decision of termination remained.       

             To read more about this NYPD Police Officer Termination Case click here.

             To read more cases like this one click here and visit my website.

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The Court Found That the DOE Acted Rationally Putting a Permanent City Laborer Fit to Perform on Reinstatement List

          Petitioner, a former permanent City Laborer with the DOE filed an Article 78 proceeding seeking reinstatement as he believed the DOE acted in bad faith concerning their refusal to reinstate him. 

          Petitioner started with DOE in January of 1985 and he was promoted in 2005.  He was demoted in December of 2008 due to unexcused absences and lateness.  Petitioner was injured at the workplace and went on worker’s compensation leave in July of 2009.  In June of 2010, he received a letter informing him of his termination because “he had not been able to perform his duties due to an occupational injury for more than one year.” Petitioner was terminated pursuant to Civil Service Law 72 in July 2010.  He was told that one year after the proposed termination Petitioner would be examined to determine his physical and mental ability to perform the duties of a City Laborer. 

          If a medical officer finds a civil servant to be mentally/physically fit to perform the duties of the position in civil service then “he or she shall be reinstated to the former position, if vacant … If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years.”

          Therefore, the Court found that the DOE acted rationally when a medical officer found Petitioner fit to perform his duty they attempted to reinstate him.  Because they did not have any vacancies at the time they placed Petitioner on a list for reinstatement to his former position that was active for the following four years in compliance with Civil Service Law 71. 

          http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3001113102011001SCIV.pdf

Court Granted FDNY Firefighter ADR, Pursuant to WTC Presumption

Matter of Concannon v Board of Trustees of the NY Fire Department Pension Fund, Subchapter II

 

          Petitioner, a retired FDNY firefighter and World Trade Center 9/11 first responder, brought an Article 78 proceedingto grant him a line-of-duty accidental disability pension, with the WTC presumption, retroactive to September 1, 2010, pursuant to NYC Administrative Code 13-353.1

          Petitioner had skin melanoma and was treated from 1999 to 2000, then returned to full duty.  He also worked as a first responder at the WTC from September 11, 2011 to June of 2002.  In April of 2008, Petitioner was then diagnosed with Stage IV metastatic melanoma of his left lung. 

          Respondent’s Medical Board initially recommended petitioner for the ADR pension, pursuant to the WTC presumption but, it was remanded on September 1, 2010 for a new determination.  After reviewing petitoner’s oncologists affidavit which stated “it is impossible to determine with any degree of medical certainty that the melanoma discovered in 2008 pre-existed the patient’s exposure at the World Trade Center site.”  The Medical Board then determined that “in view of the tendency of melanoma to metastasize long after the initial diagnosis … this member’s recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose prior to the World Trade Center event.” Therefore the Medical Board denied petitioner’s ADR pension, with the WTC presumption.

          “The failure of the Medical Board to explain why it changed its previous decision violated the principal that its decision “must be set forth in such manner as to permit adequate judicial review.””  The Court found that the Board of Trustees did not have “credible evidence sufficient to support its finding that the WTC presumption had been overcome.  The Medical Board’s determination that since a melanoma has a “tendency” to mestastasize it must have mestastasized in petitioner’s lung, is pure speculation and not a substitute for the “credible evidence” needed to rebut the WTC presumption.”  Therefore, Respondent’s determination denying Petitioner’s application for ADR was annulled and the Petitioner was granted ADR pension, pursuant to WTC presumption, retroactive to September 1, 2010. 

 

Matter of Concannon v Board of Trustees of the FDNY Pension Fund, Subchapter II

Court Found Incident Causing Injury to Police Officer to be Considered an "Accident"

Matter of Meyer v. New York State Comptroller

 

          Petitioner, a police officer, brought about an Article 78 proceeding to review determination by Respondent, Comptroller, that denied petitioner accidental disability retirement benefits (ADR). 

          Petitioner alleged that she was injured due to multiple workplace accidents.  A Hearing Officer determined that none of the incidents were accidents under Retirement and Social Security Law and denied Petitioner ADR.  Thereafter, the Article 78 proceeding was commenced. 

          An accident under Retirement and Social Security Law is “a sudden, fortuitous mischance that is unexpected and not within the “ordinary risks of employment.  An injury occurring as the result of the petitioner’s own misstep or inattention does not constitute an accident so as to qualify for benefits in accord with the provisions of this law.” 

          In the first incident the court upheld the Comptroller’s decision.  As for the second, the Court found the determination lacked substantial evidence.  Petitioner stated that she was sitting in an office chair with wheels when the chair slipped out from underneath her.  Her coworkers then found the “wheel of the chair bent and defective.”  The chair was then sent for repair.  The Hearing Officer did not address the uncontroverted testimony about the chair and the Third Department ruled the incident to be a qualifying accident under the law

          The court found that the second incident did constitute an accident and the matter remitted to Respondent for further proceedings. 

 

Matter of Meyer v. New York State Comptroller

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. 

 

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.

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. 

 

Bronxville Library Director resigns withdrawing Article 78

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.

Court Overturned Comptroller's Decision Denying A Retired Deputy Sheriff Duty Disability Retirement Benefits

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. 

NYC Environmental Control Board Failed to Make a Reasonable Attempt to Serve Petitioner Violations

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. 

javascript:funcNewWindow('http://www.nycourts.gov/reporter/pdfs/2011/2011_33265.pdf')

 

Court Annuls NYS Comptroller's Decision to Deny Police Lieutenant's Accidental Disability Retirement Benefits

Matter of Tierney v New York State Comptroller

 

            This case was brought by an Article 78 proceeding to review decision by the NYS Comptroller denying petitioner a police lieutenant with the Port Authority of New York and New Jersey, accidental disability retirement benefits. 

            Petitioner slipped on May 1, 2006 resulting in a knee injury.  The incident occurred in a place where the petitioner had worked consistently, where discarded food was located on a step adjoining an office building and a parking lot. 

            The denial of petitioner’s accidental disability benefits then went to a hearing and redetermination.  The Hearing Officer declared the May 1, 2006 incident to not be an accident within the meaning of Retirement and Social Security Law 363.  This is because petitioner stated that the discarded food was near a waste can, therefore the petitioner “had to see foreign objects on these steps on prior occasions,” thus “foreign objects on the steps was foreseeable.”  The previous decision was upheld.

            The determination of the court believed that “The conclusion that petitioner actually saw debris on prior dates, based solely on the presence for an unknown amount of time of a waste can in the vicinity, is speculative and unsupported by substantial evidence in this record.” 

            The determination was annulled and the petition was granted, with the matter remitted to respondent for further proceedings not inconsistent with the Court’s decision. 

Court Orders a New Determination for Accidental Death Benefit of Former NYPD Detective

Matter of Colon v. Kelly

 

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

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

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

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

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

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

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

 

Former Lieutenant Granted Supplemental Wage Benefits by the Court

Matter of Ward v City of Long Beach

 

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

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

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

 

Dismissed Urban Park Ranger Granted a Late Notice of Claim in Filing an Article 78

Acosta v. Benepe

 

Petitioner asked the Court to be permitted leave to file a late notice of claim. 

Mary Acosta, the petitioner was released from her position as Urban Park Ranger on July 9, 2010.  This timely notice of claim should have been filed by October 7, 2010.  This event did not take place but, the petitioner began an Article 78 on November 5, 2010.  The petition filing did not occur until March 8, 2011. 

Petitioner sought counsel on August 16, 2010.  A letter was delivered to the Commissioner of the Department of Parks, Adriane Benepe, On September 8, 2011 Ezra Pincus-Rother responded to this letter on behalf of the Commissioner stating the referral to the Parks Legal Division, General Counsel.  Phone calls were made by his attorney to the Park’s attorney supplying needed information.  On October 3, 2010 a letter was sent that remained unanswered.  Then an Article 78 proceeding was filed on November 5, 2010. 

The petitioner argues that her untimely filing of the notice of claim “was a good faith reliance on the Parks Commissioner duty to inquire and to act.”  The petitioner waited to file a lawsuit because of this confidence. 

            Discussion

Three aspects determine whether a court can approve an application for leave to serve a late notice of claim pursuant to General Municipal Law 50-e.  It is “understandable” the resistance to bring a suit to litigation because of an immense amount of time and money involved, and the hope that the “matter could be resolved.”  The Department also obtained the petitioner’s entire personal file containing records of events leading up to her termination.   They also had opportunities to contact the petitioner and her attorney to obtain needed information.  The late notice of claim was also within months. 

The petition for leave to serve a late notice of claim was granted. 

NYC Tenured Teachers Petition to Expunge Letters of Reprimand Denied

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.

Petition Against OCA Transferred to Appellate Division for to Determine if Termination is Supported by Substantial Evidence

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.

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Court of Appeals GML 207-a Department's initial determination must be suppported by Substantial Evidence

 

Kevin Nowack was a firefighter working for Ridge Road Fire District and claimed that he injured his back in 2002 when a firetruck hit a “low spot” or manhole cover depression on a road. Nowack sought General Municipal Law 207-a[1} benefits for a line of duty injury. As required he prepared an “accident-sickness packet” The fire district reviewed the packet and denied him GML 207-a{1} benefits concluding that the line of duty injury he claimed was actually a pre-existing one. As per the Collective Bargaining Agreement (CBA) Nowack requested a hearing to review the District’s denial of benefits. The CBA directed that a hearing be held pursuant to NYS Administrative Procedure Act and that “it is the empolye’s burden tto prove he is entitled to GML benefits.” Originally the hearing officer Michael Schiano ruled for the firefighter and wrote that the standard of review was whether substantial evidence was presented to override the District’s decision. When the District appealed the Supreme Court directed the hearing officer to decide whether the District’s ruling was supported by substantial evidence. Again the hearing officer ruled for the firefighter. When the district challenged the decision again the Supreme Court ruled for the District holding that the decision to deny benefits was supported by substantial evidence despite conflicting testimony in the record.

The issue was which decision must be supported by substantial evidence? 

The denial of GML 207-a benefits after the District’s review of Nowack’s “accident-sickness packet” or

The decision of the hearing officer that the District determination to deny benefits was not supported by substantial evidence. 

In a 4 -3 the majority held that the original decision of the District must be supported by substantial evidence. They wrote: “the parties here agree, and we therefore assume, that, as applied to his case, the statute requires the District’s denial of benefits to be upheld if substantial evidence supports it. Therefore, in accordance with this standard and in light of the CBA’s terms, the independent hearing officer was required to give deference to the District’s decision and Nowack bore the burden of establishing that the District’s denial determination had not be supported by substantial evidence.”

Judge Lippman writing for the three dissenting judges: “however, the majority is mistaken; the parties here are not in agreement as to whether the District’s initial determination to deny benefits was to be upheld if substantial evidence supported it. As the majority notes, state Administrative Procedure Act 306(1) … provides that the substantial evidence standard is to be applies “upon consideration of the record as a whole.” The record “as a whole” however, did not even exist at the time the District made is determination; rather, the record was created at the hearing conducted by the hearing officer.” 

The dissent opined that the Hearing Officer’s decision to allow GML 207-a benefits should be reinstated. 

Opinion: In CPLR Article 78 the “substantial evidence” standard is applied when a hearing has been conducted but in this case it was applied to the “accident-sickness packet” process. Would review of paperwork bepreferable to review of a full hearing with all paperwork and additionally evidence from doctors and witnesses?

Two Separate Article 78 Petitions Filed to Overturn a Special-Use-Permit Ruling in Russia, NY

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.

Correction Officer Receives 60 Days Suspension for Excessive Use of Force

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.

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Petition Dismissed Due to Four Month Statue of Limitations

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.

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Mt. Vernon to file Article 78 over Charter School Approval

The New York State Board of Regents approved the Amani Charter School to open to accomodate 80 5th grade students.  Mt. Vernon Board of Education who recently approved a new member to replace a member who moved to Pelham has decided to have their attorneys file an Article 78 to block the Charter School.  Read about this New York Article 78 case.

Union wins article 78 hospital directed to return employee to former position

  A Westchester County hospital employee recently won an Article 78 and reinstatement to her old position.  Upon return to work she was sent to the nightshift in a different department.  The union filed an Order to Show Cause and the Court directed that the employee be returned to her old hours and department.  Read Article 78 for hospital employee here.

Court Confirms Petitioner's Termination for Misconduct.

Court Confirms Petitioner’s Termination for Misconduct.

Matter of Gibbons v. New York Unified Ct. Sys., Off. of Ct. Admin.

In this Article 78 case, Petitioner, Grace Gibbons, sought review of Respondent’s decision that found her guilty of incompetence and misconduct and terminated her employment.

Gibbons was a court reporter for the District Court in Nassau County for approximately 22 years. In May 2007, Respondent served Gibbons with a notice of disciplinary charges. At the hearing, the Office of Court Administration (OCA) stated that Petitioner was insubordinate to supervisors and a District Court Judge, failed to produce transcripts in a timely matter, and was excessively absent without sufficient notice, which left the District Court short notice to find a replacement.

In December 2008, the hearing officer recommended that Petitioner be terminated from his position. A few months later, on February 4, 2009, the Deputy Chief Administrative Judge found the Petitioner guilty of the misconduct and incompetent in at least 20 specifications. Thereafter, Gibbons was terminated.

In an Article 78 proceeding, the Appellate review is limited to whether that determination was supported by substantial evidence. Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” and “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists.”

The Appellate Division found that the decision was supported by substantial evidence and the penalty of termination did not shock one’s sense of fairness.

The determination was confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

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Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

In the Matter of Stephen C. Caruana v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al..

Petitioner, Stephen C. Caruana, sought to review a decision of Respondent which denied his application for accidental disability retirement benefits.

In March 2006, Petitioner, a police officer, applied for accidental disability retirement benefits. Caruana claimed that he was permanently incapacitated due to neck and back injuries that were a result of three work-related incidents. Initially, his application was denied and petitioner requested a redetermination, therefore, a hearing was held. The Hearing Officer concluded that Petitioner “…failed to establish that such incapacity was caused by either 1987 incident or the 2003 incident, resulting in the denial of his application, an Article 78 followed.

The Appellate Division stated that the Petitioner has the burden of proving that his injuries were the results of the alleged incidents and in deciding whether Petitioner has fulfilled this burden, Respondent is entitled to produce “…conflicting medical evidence and to credit the opinion of one expert…” over the other.

In 2007, Petitioner had an orthopedic surgeon perform a spinal fusion surgery who agreed that Caruana condition was related to the 1987 incident and a chiropractor who agreed that his disability is related to the 1987 and 2003 incidents. Respondents brought in a board certified surgeon, Austin Leve, to examine Petitioner and review his medical records in August 2006. Leve concluded that Caruana’s injuries were not significant enough of an injury to permanently incapacitate him.

The court concluded that Respondent’s decision was supported by substantial evidence. Therefore the decision was confirmed, without costs and the petition is dismissed.

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Court Officer Terminated for Acts of Misconduct

In the Matter of Thomas Hughes v. New York Unified Court System, Office of Court Administration.

Pursuant to Article 78, Thomas Hughes, Petitioner, sought to review a decision of Respondent which adopted the recommendation of a hearing officer, who found that “…the petitioner engaged in acts of misconduct and incompetency prejudicial to the good or and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court officer…,” which resulted in his termination.

In February, 2007, Respondents filed administrative charges against Petitioner. Hughes requested a hearing, where a hearing officer found that Petitioner had accelerated his vehicle “...while it was in close proximity to his supervisor as the supervisor was entering a crosswalk, reported late for duty several times, was repeatedly insubordinate to several supervisors, failed to keep his uniform in proper condition, failed to keep his weapon properly loaded, and kept an impermissible metal-jacketed round in his weapon, which was capable of piercing courthouse walls.

In October of the next year, the Office of Court Administration ordered that Petitioner be terminated from his position. By February, 2009, Hughes filed this appeal. According the Appellate Division, an administrative decision made after a hearing mandated by law is limited to whether that decision is supported by substantial evidence. Substantial evidence “…relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact…”

The court concluded that the decision was support was substantial evidence and that the penalty of termination of employment is not disproportionate to the misconduct as to shock the conscience.

The petition was denied and the proceeding was dismissed with costs.

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Performance of Duty Disability Retirement Benefits Application Denied; Petitioner Suffered from Various Risk Factors Before Heart Attack.

In the Matter of Juan C. Rivera v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al.

In this Article 78, Petitioner sought for to review a determination of Respondent which denied Petitioner’s Application for disability retirement benefits.

In 2004, Petitioner Juan C. Rivera, a correction officer, suffered a heart attack after becoming sick while at work. Petitioner could not return to work due to his medical condition, therefore he applied for disability retirement benefits. His application was denied by the New York State and Local Retirement System because his disability was not “…a result of the performance or discharge of his ….duties.”

A Hearing Officer also agreed and concluded that Rivera was not entitled to the performance of duty disability retirement benefits. The Comptroller adopted the Hearing Officer’s findings and denied Petitioner’s application. Petitioner filed this Article 78 proceeding to annul the determination.

According to Social Security Law § 507-b (c), where a person has “successfully passed a physical examination on entry into services as a correction officer” that did not disclose proof of heart disease and afterward become disabled as a result of a heart condition sustained throughout employment, it is assumed that the disability was “incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Retirement system needed to rebut the presumption that petitioner’s disability happened while in the performance and discharge of his duties as a correction officer. Therefore, the Retirement System brought in a cardiologist to examine petitioner and concluded that although work-related stress can heighten the symptoms of coronary artery disease, petitioner disease was not related to his employment. The cardiologist referenced the various risk factors that are commonly associated with coronary heart disease that the petitioner suffered from. This included hyperlipidemia, diabetes mellitus, obesity and hypertension.

The Appellate Division concluded that the petitioner’s application for disability retirement benefits was properly denied and the petition is dismissed without costs.

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Application for Pistol License Denied Due to Criminal History

Application for Pistol License Denied Due to Criminal History

In the Matter of Ralph Velez, Jr. v Robert M DiBella

Pursuant to Article 78, petitioner appealed a determination by the respondent denying his application for a pistol license.

According to Penal Law § 400.00(1), to be eligible for a pistol license, the applicant must be at least 21 years of age, have good moral character with no prior felony convictions or any other serious offense and there must be no good cause for denial of the license. Also, the pistol licensing officer may use his broad discretion and deny any applicant for any good cause.

Due to the petitioner’s criminal history, which consisted of six arrests and a conviction for disorderly conduct, the respondent determined that good cause existed to deny his application. Even though five of the six arrests were dismissed or resolved, the respondent still considered the circumstances surrounding each arrest.

Petitioner claims that the respondent acted improperly handing over his decision-making authority to the Westchester Department of Public Safety. However, the Westchester Department of Public Safety only provided the respondent with a recommendation of denial. In the respondent’s written decision, it clearly shows that the Department’s recommendation was not the sole basis for denying the petitioner’s application for a pistol license.

The court denied the petition and dismissed the proceeding without costs or disbursements.

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Petition Annulled Due to Illegal Stop

 

In the Matter of Kyle P. McDonell v New York State Department of Motor Vehicles, et al.

In this Article 78 proceeding, petitioner asked the court to review a determination suspending his license for refusal to submit to a chemical test.

McDonell was stopped by a NYS Trooper because he accelerated while turning onto an entrance ramp for an interstate highway causing his vehicle to fishtail. The Trooper’s sole basis for stopping McDonell was his belief that McDonell violated VTL § 1162. This law forbids dangerously moving a stopped, standing or parked vehicle unless it can be made with safety. Petitioner was taken into custody because of the Trooper’s belief that the petitioner was under the influence while operating the vehicle. Soon thereafter, because the petitioner refused to submit to a chemical test, his license was suspended.

VTL § 1194 (2) (c), in a refusal revocation hearing, the law judge concluded that the Trooper lawfully arrested the petitioner. However, the court agreed with the petitioner’s contention that he had not been stopped, standing or parked before the Trooper stopped the vehicle. It was held that it was an illegal stop based on VTL § 1162.

The refusal suspension was annulled based on the improper stop.

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Town's Article 78 Regarding Road Denial Dismissed

 

In the Matter of Eastern Oaks Development v Town of Clinton, et al.

In this Article 78 case, petitioner, Eastern Oaks Development, asked the court to review a decision of Clinton where petitioner was denied their application to have its road accepted for dedication by the Town of Clinton.

In 2005, petitioner applied with the Town of Clinton Planning Board for approval of a residential subdivision that contained eleven lots. Petitioner stated they did not intend to builds any homes on the lots and that it was up to the purchasers to build their own homes. A few months later, the Planning board granted the application for conditional final approval for the Subdivision. Planning Board stated that at least eighty percent of the construction must be done in the Subdivision in order for formal acceptance of the roads.

The Town Engineer wrote a letter to the Board pleading that they disapprove the road based on the fact that there was not eighty percent of construction done in the Subdivision. The Planning Board took this into consideration and declined  acceptance of the road stating that the Town Board disapprove of the dedication “…until there are sufficient houses constructed on the subdivision parcels.”

Petitioner, then commenced this Article 78 proceeding alleging the following: (1) the Town was aware that in order to attract potential purchasers it was necessary for the Town and Town Board to accept the dedication of the road; (2) before an actual vote took place, the Town Board already determined that they were going to decline the acceptance of the road by the influence of Budd, who had a interest of conflict; (3) Budd and the Town Engineer were good friends and they “collaborated and conspired to thwart the perfunctory approval of the road…”; (4) after a dispute between Eastern and Budd, Eastern has a dispute with the Town Engineer “... over baseless charges and has been advised that same threatened the Subdivision."

The Court denied the Town Parties motion to dismiss holding that Budd, although recused from the vote could have influenced it.

Read more about this Article 78 case here.

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NYPD Prior Probationary Service Counts Upon Reinstatement

NYPD Prior Probationary Service Counts Upon Reinstatement

Ward v  Kelly

Petitioner, Michael Ward, sought to annul a decision of the NYPD, to terminate him as a Probationary Police Officer on March 11, 2009.

In July 2006, Petitioner was originally appointed as a probationary police officer. Approximately nineteen months later, Ward resigned from his position in order to join the New York City Fire Department and less than a month later, on February 13, 2008, he resigned from the Fire Department and reapplied to the NYPD on the same day.

When Petitioner reapplied to the NYPD, he was required to sign a document called “Police Officer Terms of Probation,” which states that he was informed that there will be a twenty-four month probationary period. On February 21, 2008, Ward was appointed as a Probationary Police Officer. Upon appointment, Petitioner alleges that his probationary period would only last thirty-two days because he had started his probationary period on his initial appointment into the NYPD.

In December 2008, Petitioner was arrested for assault, menacing and harassment. Eventually, the charges were dropped, but as a Probationary Police Officer, Ward was terminated from the NYPD.

Petitioner argues that his initial probationary period should have been counted towards the two year probationary period, which ended in August 2008. Therefore, this would entitle Ward to a disciplinary hearing before his termination because he was no longer a Probationary Police Officer.

According to the Personnel Rules and Regulations of the City of New York, when “…a probationary employee has been separated from service, for any reason other than fault or delinquency, and is thereafter re-appointed by the same agency, the length of his prior probationary term shall be deducted from his current probationary term.”

The petition was granted and the decision terminating petitioner was vacated and rescinded. Petitioner will also be subject to such other disciplinary procedures applicable to him as a non-probationary police officer from his December 14, 2008 arrest.

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Petitioner Granted Back Pay With Interest

John Tipaldo v Christopher Lynn, etc., et al.

Pursuant to Article 78, plaintiff appealed an order by the Supreme court that granted his back pay without interest in his Civil Service Law § 75-b action. The plaintiff is also asking for the court to grant his reinstatement to the prior position.

In August 1996, plaintiff, John Tipaldo, was promoted to the position of Acting Assistant Commissioner for Planning by the New York City Department of Transportation (DOT). Plaintiff, which was a salary of $55,000 and if the position became permanent, he would receive a $25,000 increase. Six months later, plaintiff was demoted from the new position. As determined in the Civil Service Law § 75-b action, the demotion was in retaliation for the plaintiff reporting a supervisor violated bidding rules. Due to the demotion, the plaintiff new position never became permanent and he never received the $25,000 salary increase.

At the trial court, plaintiff presented an expert economics testimony to establish the total amount of back pay the plaintiff was entitled to. The expert determined that if the plaintiff had not been demoted he would have received the $25,000 increase and would have been making $81,000. The expert also calculated the amount of money the plaintiff would have earned through the time of trial if he was not demoted by comparing two managers with similar position and salary to that of the plaintiff and applied a statutory interest rate of 9% to the lost earning. The expert arrived at a total of $662,721.

The Appellate Court found that the back pay calculated by the plaintiff’s expert had sufficient support and that the plaintiff was likely to have received the raise.

Therefore, it was determined that the predetermination interest is available for those who claim under the Civil Service Law § 75-b. Further, it Supreme Court granted an interested award because the defendants did not offer any counter argument as to why the plaintiff’s expert testimony is flawed. Finally, the Supreme Court order that the plaintiff be reinstated “to the same position held before the retaliatory personnel action, or to an equivalent position.”

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Petition Dismissed Due to Administrative Remedies Not Being Exhausted

Pitts II v City of New York Office of Comptroller

Pursuant to Article 78, petitioner sought the court to review a decision of the New York City Department of Health and Mental Hygiene (DOHMH) stating that he had violated New York City Health Code.

Petitioner received a violation notice from the DOHMH which cited him for violations of the New York City Health Code. A DOHMH hearing examiner determined that petitioner had two violations and he would be fined $500 total. Petitioner brought suit but failed appeal the decision prior to suit.  Due to the petitioner not exhausting all administrative remedies the Supreme Court granted DOHMH’s motion to dismiss.

The court stated that in order for a proceeding to be litigate in a court of law, petitioner must exhaust all available administrative remedies

The Supreme Court ordered that the order and judgment is affirmed, without costs or disbursements.

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Petitioner Request for Temporary Release Program Denied

In the Matter of Frank Lapetina v Brian Fischer, as Commissioner of Correctional Services, et al.

 

Pursuant to Article 78, petitioner sought to appeal a decision by the respondent rejecting his request to partake in a temporary release program.

 

Petitioner is a prison inmate, who applied to partake in a temporary release program. The facility’s Temporary Release Committee approved his request. However, upon review by the Department of Correctional Services, it was denied. The respondent upheld the decision on administrative appeal. Therefore, the petitioner initiated this Article 78 proceeding, which was denied by the Supreme Court and led to the petitioner appealing.

 

The Supreme Court affirmed the decision stating that partaking in a temporary release program is not a right, but a privilege. The petitioner was not suitable for the program because of the nature of his crimes committed and his recidivist history.

 

The court order that the judgment is affirmed without costs.

 

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The court affirmed the judgment and order imposing a deficit assessment on the Peitioner by Workers' Compensation Board.

In the Matter of Aides at Home, Inc. v State of New York Workers' Compensation Board et al.

 

In this Article 78 case, petitioner asked the court to review a determination of respondent imposing an assessment against the petitioner.

 

From 1997 to 2000, petitioner was a member of a workers’ compensation group self-insured trust, New York Health Compensation Trust. In 2006, respondent terminated the Trust due to underfunding. Respondent assumed that the Trust would administer and distribute the assets and liabilities. Approximately two years later, the Board administered a deficit assessment to current and former Trust members, including the petitioner. The purpose of the deficit assessment was to cover the costs of fulfilling the Trust’s workers’ compensation claims.

 

Petitioner, then, initiated a combined proceeding of Article 78 and a declaratory judgment challenging the Board’s assessment. Petitioner claimed that the Board could not impose an assessment because the Board did not have statutory or regulatory authority and petitioner believes that the assessment is arbitrary and capricious and it violated the petitioner’s due process rights. The court dismissed the petition and the petitioner appealed.

 

Originally, the Board decision was limited to whether it "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Additionally, "the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld" Therefore, the Trust was allowed to administer its workers’ compensation liabilities after the Board terminated the Trust., the Board, according to the regulation, was allowed to assume that the Trust would administer and distribute the assets and liabilities and the Board was authorized to levy an assessment up the member in order to make up for the deficiency.

 

The court affirmed the judgment and order, without cost.

 

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FDNY Employee Petition Granted; Petitioner Allowed to Retire Instead of Being Terminated.

In the Matter of Thomas J. McDougall v Nicholas Scoppetta, etc., et al.

 

Pursuant to Article 78, petitioner, Thomas J. McDougall, requested the court review a decision of the respondent and the administrative law judge, where the petitioner was found guilty of two charges of misconduct resulting in his termination. The court needed to determine whether the penalty of termination of the petitioner’s employment was top-heavy and shocking, which was perceived as an abuse of power.

 

The petitioner has been a member of the Fire Department of New York City for twenty-five years. After testing positive for the presence of cocaine in a random drug testing, a “Step 1” meeting was held to review the charges for violation the Fire Department regulations. McDougall was found guilty of all charges. However, due to the petitioner’s lengthy service to the Fire Department without any prior disciplinary problems, he should be allowed to resign and only be fined the sum of $80,000.

 

Following the “Step 1” conference, the matter was submitted to the Office of Trials and Hearing (OATH) for a hearing by an administrative law judge. The administrative law judge stated that pursuant to the Administrative Code of the City of New York § 15-113, the petitioner’s employment should be terminated.

 

The Commissioner of the Fire Department of the city of New York agreed with the administrative law judge and terminated the petitioner’s employment at the Fire Department. Resulting from his termination, petitioner had to forfeit his pension and retirement benefits, which included health insurance.

 

As stated in Administrative Code of the City of New York § 15-113, the power of the Commissioner to discipline members of the Department is reviewable under Article 78. The court needs to determine where the petitioner’s penalty was “arbitrary and capricious as a matter of law such that there was an abuse of power.”

 

Due to petitioner’s termination, the petitioner and his family will suffer from the loss of his pension and retirement benefits to which he earned during his 25 years of service in the Department. Petitioner was the sole financial supporter in his family. Therefore, no pension and retirement benefits would be devastating on the entire family.

 

The court acknowledges that this was an isolated incident for the petitioner in his twenty-five year employment with the Fire Department. Petitioner penalty is extremely shocking that an annulment of the administrative law judge decision should be imposed and a lesser penalty should be administered.

 

The petition is granted, with costs. The penalty of termination of the petitioner's employment is annulled and the matter is remitted to the respondents for a lesser penalty allowing the petitioner to retire and fining the petitioner the sum of $ 80,000.

 

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Petitioners states that Respondents' decision are forcing conditions upon them; Court denied and dismissed Petition

The Matter of David Layne v Eastchester Planning Board

 

Pursuant to Article 78, petitioner sought the court to review a decision of the Town of Eastcheaster Planning Board.

 

Jalo Realty, LLC owns three adjacent properties that are designated as three separate tax lots. One lot is completely within a single-family zoning district, and another lot is completely within a retail business district that allows multi-family residential units. The third lot is situated in between those other two lots. This means that it is divided by the boundary between the two zoning district.

 

In June 2007, Jalo Realty, LLC applied for site plan approval to build 10 multi-family units on the three lots with the respondents. Jalo Realty, also, requested a special permit that “provides that where the boundary of a district divides a lot, a special use permit may be granted to extend a lawful conforming use on that portion of the lot lying in the less restricted district 75 feet into the more restricted district.

 

In February 2008, the board granted the application on grounds that Jalo demolish the present buildings and merge the three lots into one tax lot. The petitioners then sought to appeal, which the court denied and dismissed due to respondents decision had a rational basis. Jalo Realty, LLc stated that respondents’ decision was in conformance with the legislatively forced conditions.

 

Court stated that the petitioners’ contentions are without merit.

 

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Petitioner Appealed Denied Due to Violation of Condition Six with the Parole Requirements

The Matter of Derrick Wingate v New York State Division of Parole

 

In this Article 78 case, petitioner requested the court review a decision of the respondent to revoke petitioner’s parole.

 

Petitioner, Derrick Wingate, has an extensive and violent criminal record. In 1982, he was convicted of escape in the second degree and two counts of criminal possession of a weapon in the third degree. Petitioner was sentenced to 15 years to life in prison. In January 2008, he was release to parole supervision. Under condition six of his release, petitioner was required to inform his parole officers of any contact (including arrests) with any law enforcement agency.

 

In June of the same year of his release, petitioner was charged with violating condition six. Petitioner did not inform his parole officer that the police were summoned to his residence to investigate a shooting involving his grandchildren.

 

Petitioner sought an appeal under article 78, after a decision not given within 4 months. The court stated that if there was a violation of the procedural requirements, then petitioner parole revocation will be confirmed. There was a tremendous amount of evidence present supporting the respondent’s decision to revoke his parole.

 

On the day in question, petitioner gave the officer a false name, refused to allow the officer to search his home and his interaction last several hours with a few officers. “The nature and interaction with the officer would lead a reasonable person to conclude that it was “contact” with the police” and would require the petitioner to report this to his parole officer. The parole officer testified that no such incident was ever reported by the petitioner.

 

The court concluded that the respondent’s decision is confirmed, without costs and the petition is dismissed.

 

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Petitioner tenancy terminated due to Violation of the Housing Authority's Policy

The Matter of the Application of Judy Florence against The New York City Housing Authority

In this Article 78 case, petitioner sought to reverse respondent’s decision to terminate her lease due to failure to register and maintain her two dogs in compliance with the Housing Authority pet policy and her outstanding rent balance.

 

According to the respondent, their decision to terminate her tenancy was based on substantial evidence. First, petitioner admitted that she owned a pit bull that was involved in an attack with her neighbor in the hallway near the petitioner’s apartment and she did not register both of her pets. Second, petitioner also admitted that she failed to pay her rent on time and this was a violation of the housing Authority Policy. According to the Housing authority, failure to make payments on time is a good enough reason to terminate tenancy.

 

The petition was denied and the proceeding is dismissed, without costs and disbursements to the respondent.

 

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Petition denied; Appeal Confirmed Initial Guilty Finding

The Matter of Carlos Ortiz v Brian Fischer, as Commissioner of Correctional Services

 

In this Article 78 case, the court reviewed a decision where respondent found petitioner guilty of violating a prison disciplinary rule.

 

Petitioner urine was tested positive twice for the presence of cannabinoids. He was, then, charged with the use of a controlled substance and found guilty in a tier III disciplinary hearing. After the petitioner’s administrative appeal was ineffective, petitioner commenced an Article 78 proceeding.

However, the court still confirmed this initial finding. The following substantial evidence aided in the court’s decision: (1) the misbehavior report; (2) positive test results; (3) testimony of the testing officer; and (4) petitioner’s admission that he smoked marijuana.

 

The court reviewed the record and determined the petitioner’s guilty charge was a result of the substantial evidence and not a result of any alleged hearing officer bias. Petitioner’s argument was unpreserved or unpersuasive.

 

The determination was confirmed, without costs and the petition was dismissed.

 

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Zoning Board of Appeals Denied Petitioner Application for Area Variances; the Court Affirmed.

Matter of Estate of Phyllis Gravino v Thomas Young

In this Article 78 case, the court reviewed a decision of the Zoning Board of Appeals of the Town of Babylon. The Zoning Board denied the petitioner’s application for area variances.

 

The Zoning Board of Appeals of the Town of Babylon decision to deny petitioner because they found that the requested variances would cause an adverse effect on the surrounding neighborhood. The court’s determination was rational and not arbitrary and capricious. Also, petitioner had failed to show that the Zoning Board had granted variances to other in similar situation.

 

The court denied the petition and dismissed the proceeding, with costs.

 

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Plaintiff's Complaint was Dismissed on the Grounds that FELA Did Not Apply

Paul Zuckerberg, et al. v Port Authority of New York and New Jersey

Pursuant to the Federal Employers’ Liability Act, the plaintiffs sought to recover damages for personal injuries.

The injured plaintiff was employed by the defendant as a police lieutenant. One day, the injured plaintiff was stationed at John F. Kennedy International Airport. While on duty, he tripped over a door saddle while exiting the tour commander’s office. The injured plaintiff applied and received worker’s compensation benefits for his injuries from the fall.

The plaintiff and his wife, then commenced this action against the Port Authority pursuant to the Federal Employers’ Liability Act (FELA). Port Authority argued that FELA did not apply to this action and that the injured plaintiff was already covered by worker’s compensation. Therefore, they moved for summary judgment to dismiss the complaint. In opposition, the injured plaintiff asserted that he was assigned to a central lieutenant’s pool and would be randomly to different areas. This included areas in the Port Authority Trans-Hudson Corporation.

The court states that FELA was inapplicable to this case. However, plaintiffs still asserts that the Port Authority, “in its capacity as the operator of an interstate railway transit system, may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA.”

The court concluded that FELA still did not apply under the circumstances of this case and granted Port Authority motion for dismissing the complaint.

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Petitioner Name Removed from the DOE's Ineligible/Inquiry List After Criminal Charges are Dismissed

Matter of the Application of Philomena Brennan v New York City Department of Education

 

 

Petitioner, a tenured teacher, started an Article 78 proceeding against the New York City Department of Education. She wanted her name to be removed from the DOE’s Ineligible/Inquiry List and for the DOE to allow her to withdraw her resignation.

 

In the spring of 2006, petitioner was working as a full-time teacher Frederick Douglas Academy in Brooklyn. At the end of the school year, the principal informed petitioner that she was receiving an unsatisfactory rating. Immediately after being informed of her “U” rating, petitioner formally resigned.

 

A few years later, petitioner began to take steps to with her resignation. In January 2009, she returned to the school to speck to the principal. Petitioner saw the principal and was escorted to her office and told to wait. Approximately ten minutes later, petitioner was “handcuffed and charged with misdemeanor of trespass and the violation of harassment.” She immediately informed the DOE of the arrest, as the rules are stated and she was placed on the DOE’s Ineligible/Inquiry List, which makes her ineligible for rehire or for a teaching assignment.

 

In June 2009, all criminal charges against the petitioner were dismissed. So, she requested the DOE remove her for the DOE’s Ineligible/ Inquiry List. The IA Deputy Chancellor Teaching and Learning signed an undated letter stating she has been approved to be removed for the list. However, due to no date on the letter, the court determined that the effective date would be June 11, 2009, when petitioner initially applied to have her name removed from the list. Now, petitioner sought to have her resignation withdrawn, but she had to wait for all paperwork regarding the list is completed. Therefore, the petition to withdraw he resignation is premature.

The petition was granted as it requests the removal of the name of Philomena Brennan, petitioner, from the Ineligible/Inquiry List maintained by respondent New York City Department of Education, effective June 11, 2009 and the court ordered that respondent's cross-motion to dismiss petitioner's claim regarding the withdrawal of her resignation as a teacher is granted, and that claim is dismissed without prejudice and without costs or disbursements to either party due to it prematurity.

 

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Petition dismissed due to lack of documentation

 

 

Matter of Michael MacLeod v Robert l. Megna, as Commissioner of Taxation and Finance

 

 

 In this Article 78 case, the court reviewed a decision of the Tax Appeal Tribunal which uphold sales and use tax assessment required under Tax Law articles 28 and 2.

 

Petitioner was the president and sole shareholder of MJM Studios of New York, Inc. This was a New Jersey company that specialized in creating architectural enhancements of buildings in numerous states.

 

Respondent informed petitioner that they would be conducting a field audit and required access to all MJM’s records. Petitioner could not provide access to the records because they were in possession of a bankruptcy trustee. The auditor made several attempt to contact the bankruptcy trustee and also made several more requests of petitioner to provide the records. After the unsuccessful attempts, the auditor calculated an estimated sales and use tax based on deposits in MJM’s bank records and he adjusted through MJM’s franchise tax returns to include only New York sales. Following a conference, the assessed amount was reduced. In addition to a hearing, the Department agreed to further reduce the assessed amount.

 

The Tax Appeal Tribunal affirmed the tax assessment. Due to a statutory presumption that all money received by MJM for products and services were taxable, petitioner has the burden of establishing by “clear and convincing evidence” that the money was not taxable and the assessment was erroneous. He failed to prove that the capital improvement exemption applies.

 

Even though the records were in possession of the trustee, there was no evidence that petitioner attempted to retrieve the records for the auditor.Due to the lack of documentation from petitioner, the auditor needed to come up with its own method to determine the tax assessment.

 

The determination is confirmed, without costs, and petition dismissed.

 

 

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Petition Dismissed; Petitioner Failed to File Motion within Respect to the Statue of Limitations

Matter of the Application of Robert F. Hayes v The City of New York Department of Citywide Administrative Services, The New York City Fire Department, The City of New York, and The Test Validation Board for Examination (PRO) Battalion Chief

 

According to this Article 78 case, petitioner sought to prevent the Test Validation Board of the NYC Fire Department from marking three questions void on the answer key for the Battalion Chief examination.

 

Petitioner, a Captain in the NYC Fire Department, was eligible was for promotion to Chief Battalion. On August 16, 2008, petitioner sat for the Promotion to Battalion Chief Examination No. 8511. He received notice of the final answer key through a letter dated mid-December 2008. Originally, the Test Validation Board stated that the answers to questions 15, 46, and 85 were A, A, and D. Petitioner’s answer key followed accordingly. However, in the final determination, the Test Validation Board allowed A, B, C and D to be the correct answers for questions 15, 46 and 85.

Hayes declared that the board acted outside the reach of its authority as stated in Civil Service Law § 50-a. According to Civil Service Law § 50-a, a candidate may file a petition pursuant to Article 78 within thirty days after service of the notice of availability of the determination of the test validation board.

Petitioner was given notice of the Board’s determination on December 17, 2009. Almost 4 months later, on April 12, 2010, petitioner filed a petition under Article 78. His petition was dismissed because it was outside the statute of limitations set in Civil Service Law § 50-a.

The principle of an Article 78 proceeding is to allow the distressed candidate an chance to dispute why the determination of the administrative agency was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The court dismissed the petition without costs and disbursements to the respondents.

 

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Petition Dismissed Based on Support From Substantial Evidence

In the Matter of Mark Scott v Brian Fischer, as Commissioner of Correctional Services, et al.

In this Article 78 cases, petitioner sought review of respondent’s conclusion which found petitioner guilty of violating certain prison disciplinary rules.

 

During a pat frisk of petitioner by a correction officer, petitioner seemed to have swallowed a foreign object that he was hiding in his mouth. He was, then, escorted to the hospital for an x-ray.

The x-ray revealed a razor blade wrapped in some type of material in his stomach. For the next few days, petitioner was placed on a contraband watch, but no razor blade turned up. In a misbehavior report, petitioner was charged with the following: (1) possessing a weapon, (2) possessing contraband, (3) violating search and frisk procedures and (4) possessing gang material. However, he was found of everything but of possessing gang material.

 

The determination was supported by the following substantial evidence: x-ray taken at the hospital, the misbehavior report, the testimony of the correction officer who authorized it, the testimony of the lieutenant who ordered the pat frisk, the testimony of the sergeant who was present at the pat frisk and the testimony of the nurse who reviewed the x-ray.

 

Petitioner, however, states that the determination is not supported by substantial evidence because the x-ray taken two days after the incident did not show any object in the petitioner stomach, nor was any contraband recovered.

 

The courts determination was confirmed, without costs, and petition was dismissed

 

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Court questions if Petitioner was financially capable of "equally sharing" arbitration fees

Matter of Lorrainer C. Brady v The Williams Capital Group, L. P.

In this Article 78 case, the question is whether the petitioner was financially capable of sharing arbitration fees and costs.

 

In 1999, the respondent hired petitioner to sell fixed income securities. As a requirement for the position, petition needed to complete a Uniform Application for Securities Industry Registration to Transfer in order to become registered with the National Association of Securities Dealers (NASD). Upon registration, petitioner was no subject to the NASD rules.

 

In 2000, respondent created an employee manual and each employee was required to sign and follows and condition set aside in the manual. The employee manual included a “Mutual Agreement to Arbitrate Claims,” which states that all disputes will be arbitrated and each party will equally share the fees and costs of the arbitrator.

 

Approximately five years later, in February 2005, petitioner was terminated from her position at The Williams Group. Following her termination, petitioner filed a discrimination complaint with the New York State Division of Human Rights. However, eight months later, before a decision was made, petitioner withdrew her complaint. In December of the same year, petitioner filed a Demand for Arbitration with American Arbitration Association. She was seeking money damages against the respondent. Petitioner claimed that her termination of employment at the Williams Group was in violation of her Civil Rights.

 

According to the AAA rules, employers were required to pay all arbitration fees. Therefore, AAA decided on behalf of the petitioner and sent an invoice for $42,300 to the respondent. Respondent refused to pay the entire amount due to the Williams Group arbitration agreement in the employees’ manual.

 

Pursuant to Article 78, petitioner sought to force respondent to pay the fees or to force AAA to issue a judgment on respondent for failure to cooperate.

 

The Appellate Division sided with the petitioner because they found that respondent “equal share” provision in the agreement was “unenforceable as against public policy.” However, now the petitioner has the burden of showing that she withdrew her initial petition on the grounds that the fees were discouraging to continue the arbitration.

 

Respondent appealed on the grounds that petitioner was financially capable of paying half of the fees, at the time of the filing the complaint.

 

Order modified, without costs, by remitting to Supreme Court, New York County, for further

proceedings in accordance with the opinion herein and, as so modified, affirmed.

 

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Article 78 petition dismissed; Petitioners granted judgment based upon Collective Bargaining Agreement

 

Matter of William Giblin et al v. Village of Johnson City

 

Petitioner sought to appeal an order form the Supreme Court which granted petitioner’s application to terminate health insurance benefits to petitioner current wife, Patricia Giblin. This was a combined proceeding pursuant to Article 78 and an action for a declaratory judgment.

 

Petitioner William Giblin retired as a firefighter from the respondent. According to the collective bargaining agreement (CBA), upon retirement, the petitioner “…shall continue to receive…” family coverage health insurance for himself and his dependents.

 

In February 2009, petitioner divorced his then-wife, which automatically terminated health coverage for his ex-wife and switch the petitioner to an individual health insurance plan. In March 2009, the petitioner married petitioner Patricia Giblin. William Giblin requested that his current wife be added to his health coverage plan. Respondent informed the petitioner that he did not have the family plan and was no longer permitted to it.

 

The Supreme Court only terminated the order and instructed the respondent to extend health coverage to Patricia Giblin. According to the court, the petition would be dismissed under Article 78 because this falls under a breach of contract. Therefore, the claim will be resolved under traditional rules of contract.
 

Furthermore, respondent violated its contractual responsibility in failing to provide health coverage to the petitioner’s dependent. According to the collective bargaining agreement, retirees will “continue to receive” health insurance for himself and his dependents. The CBA does not state any limits for the dependents at the time of retirement, nor does it specifically state anything prohibiting retirees to change the type of coverage.

 

Based on the CBA, the court ordered that the judgment and order be modified, without costs, by dismissing the Article 78 petition and declaring that Patricia Giblin be provide health insurance coverage as a dependent of retiree, William Giblin.

 

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Court Stands Firmly on Decision to Deny Petitioner's Application for Accidental Disability Retirements Benefits

Matter of Brian A. Herlihy v. Thomas P. DiNapoli, as State Comptroller

In this Article 78 case, the court reviewed a decision of the State Comptroller which denied the petitioner’s application for accidental disability retirement benefits.

In 1995, petitioner started working as a police officer for the Town of Bedford, Westchester County. From 2001 to 2005, petitioner sustained three work related injuries. In 2001, while lifting a speed trailer, petitioner felt a pop in his back. In 2002, he injured his upper back and shoulder while aiding burglary arrest. In 2005, petitioner tripped on a step in the police station while trying to answer the phone and work desk duty.

Two years later, in 2007, Petitioner applied for accidental disability retirement benefits. The application was denied due to none of the incidents encompassed an accident within the meaning of Retirement and Social Security Law § 363. The court confirmed stating that the petitioner bears the burden of proving that his injuries were unintentional. This meant that the injuries were sudden and unusual and completely not linked to ordinary risks of employment.

The court confirmed the initial determination, without costs and dismissed the petition.

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Court granted petition, reinstating service credits from Comptroller

Matter of David A. Hoover v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.

In this Article 78 case, petitioner sought to rescind a determination of Comptroller terminating petitioner’s service credits in New York State and Local Employees’ Retirement System.

Petitioner received service credit from New York State and Local Employees’ Retirement System between 1988 and 1995 for part time employment as a labor regulations specialist for Erie 1 BOCES. In 2008, the respondent declared new regulation for the Retirement System. The new regulations stated how to classify professional service providers as employees or independent contractors.

 

According to the new regulations, petitioner’s service credits were revoked because he was classified and being an independent contractor and was not entitled to the service credits under the independent contractor title. Petitioner sought reinstatement of his service credits on the grounds that Comptroller improperly applied the new regulations and violated his due process rights. The court granted the petition on the due process claim and order that “… the determination to revoke petitioner’s service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled.”

 

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Petitioner granted sick leave pursuant to CPLR Article 78

 

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.

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Article 78 appeal to annul termination denied due to residency discrepancy

Matter of James Johnson v Town of Amherst

In this Article 78 case, petitioner sought to annul the determination of the Town of Amherst terminating his employment for failure to meet the residency requirement of the Town Code. Employees are required to be domiciliaries of the town which means they must have a permanent home in Amherst. Respondents presented evidence at the hearing which established that petitioner’s family lived in a home in Elba, New York. Additionally, petitioner listed this address in Elba on his income tax forms and admitted that he had no intention of moving to Amherst and only established residency with the Town to comply with the requirements of his employment. Therefore, the Court must agree with the decision of the Town of Amherst that petitioner is a domiciliary of Elba and thus the Town’s decision is supported by substantial evidence and must be upheld.

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

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Article 78 appeal for revoked insurance license denied

Matter of Jessica Coulter v State of NY Insurance Department

Petitioner brought about this Article 78 case to review a determination of the State of New York Insurance Department adopting the recommendation of a hearing officer and revoking petitioner’s insurance broker license in New York. Petitioner was charged with untrustworthiness and incompetence as an insurance producer based on her license being revoked by the state of New Jersey and her owing restitution and fines of over $100,000. Additional charges of misconduct included failure to remit payroll taxes to the IRS for a period of eight years and making a false statement under oath. After a hearing regarding these charges, the hearing officer recommended that petitioner’s license be revoked in New York and the Department adopted this recommendation. Petitioner then brought about an Article 78 appeal contended that there was not sufficient evidence to support the determination. The Court disagreed and felt that the evidence was, in fact, sufficient and the penalty of revocation was not disproportionate to the offences committed and thus, not shocking to one’s sense of fairness.

Accordingly, the Supreme Court confirmed the determination, denied the petitioner, and dismissed the proceeding, with costs.

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Court officer's accidental disability retirement benefits denied

Matter of Philip Warshawky v Thomas DiNapoli, as State Comptroller

In this Article 78 case, petitioner, a court officer, applied for accidental disability retirement benefits after suffering two heart attacks. He did not identify any specific incident as the causative event for his heart problems. The New York State and Local Retirement System denied the application finding that the heart attacks did not constitute accidents. Petitioner’s case was heard by a Hearing Officer who agreed with the Retirement System’s decision and the Comptroller adopted the Hearing Officer’s conclusions. Petitioner then brought about an Article 78 appeal to challenge the Comptroller’s decision. The Supreme Court granted petitioner’s application to annul a determination of the Comptroller denying him accidental disability retirement benefits on the grounds that petitioner did not need to show an accident occurred.

The Comptroller then appealed this decision arguing that petitioner was responsible for showing that a qualifying accident occurred to cause his heart attack. The Court, while noting that the Supreme Court performed a sound analysis of established principles of construction, ruled that the precedent and legislative history did does not excuse petitioner from demonstrating a qualifying accident occurred causing his disabling heart disease.

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

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Supreme Court declines to rule in Article 78 academic appeal

Resat Keles v. The Trustees of Columbia University in the City of New York

Plaintiff brought about this Article 78 case to challenge the academic and administrative standards and decisions of Columbia University. Article 78 appeals are limited to determining whether a decision is arbitrary, capricious, irrational, or in bad faith and courts have repeatedly declined involvement in the evaluation of academic performance since the educational institutions are better suited to make judgment. In this case, the Court declined to convert plaintiff’s action to an Article 78 special proceeding because his claim made past the four-month statute of limitations.

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Correction Officer denied accidental disability retirement benefits

 

Matter of Richard Benedetto v Thomas DiNapoli, as State Comptroller

This Article 78 appeal was brought about to review a determination of the Comptroller denying petitioner his application for accidental disability retirement benefits. Petitioner was a corrections officer who injured his back in 2004 by falling on stairs in a correctional facility. Following the accident, petitioner did not return to work. In 2005, petitioner applied for accidental disability retirement benefits and was denied. Petitioner then requested a redetermination but the Hearing Officer upheld the denial at his hearing and the Comptroller adopted this decision. Petitioner then commenced this Article 78 proceeding to challenge the determination.

In his report following the accident, petitioner stated that he slipped while escorting a prisoner down stairs to the facility’s basement. Later on, petitioner said that his accident occurred when he slipped on a sheet of ice on the stairs. Regardless of the fact that these two stories were slightly different, the petitioner bore the burden of proving that the injury was accidental and the Comptroller’s decision must be upheld if supported by evidence. The Comptroller has the authority and discretion to determine if the incident was a sudden and extraordinary event not related to the ordinary risks of performing routine duties. In this case the Comptroller determined that the injury was the result of a misstep related to ordinary duties.

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

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Article 78 housing issue remanded to District Court

Howard Norton v. Town of Islip

In this Article 78 case, the plaintiff Howard Norton purchased a house in 1986 that had been converted into a two-family dwelling which the Town of Islip certified as a “legal nonconforming two-family dwelling”. When the plaintiff decided to rent out the house two years later, he was denied a rental permit because the Town claimed the house had lost its “legal nonconforming” status after being left vacant for a year. Plaintiff then commenced an Article 78 proceeding in Supreme Court to challenge the permit denial. The Supreme Court denied the petition but refused to determine whether the house was a legal nonconforming two-family dwelling or not.

After the conclusion of the Article 78 hearing, the Commissioner of the Town’s Department of Building and Engineering made notations of the house’s certificate of occupancy describing the denial of the rental permit and concluding that the house’s “non-conforming use” had been “lost due to non-use in excess of one consecutive year”. Plaintiff was not informed of these notations nor was he given an opportunity to challenge them.

In 1997, the Town commenced a criminal action against the plaintiff for using the house as a two-family dwelling. The Town charged him with violating the Town Code based on the notations made by the Commissioner on the certificate of occupancy. The plaintiff then brought about an action against the District Court claiming his Due Process rights had been violated. Plaintiff claimed that the Town’s attorneys committed malicious prosecution and abuse of process in connection with the criminal proceeding against him. The individual defendants then moved for summary judgment in District Court alleging they were entitled to absolute or qualified immunity. The Court granted the individual defendants the qualified immunity with respect to plaintiff’s federal-law claims since they believed that the house’s nonconforming use had been lost based on the notations on the certificate of occupancy and had probable cause to prosecute the plaintiff for a Town Code violation. Since the District Court did not discuss whether the individual defendants were entitled to immunity with respect to the plaintiff’s state-law claims, the Court must remand this issue to the District Court to address the confusion.

Accordingly, the Court reversed the District Court’s order and remanded the cause for further proceedings with this order.

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Business Manager's termination is annulled and remitted for review

Matter of Jeffrey Baker v Poughkeepsie City School District

Petitioner, a Business Manager for the Poughkeepsie City School District, brought about this Article 78 proceeding to review a determination of the School District adopting the recommendation of a hearing officer which found petitioner guilty of eight charges of misconduct and incompetence and terminated his employment.

In July 2007, petitioner was charged with eight counts of misconduct and incompetence and subjected to a disciplinary hearing where two members of the Board testified. The hearing officer found the petitioner guilty of all the charges brought against him and recommended termination. The members of the Board then issued a final determination terminating the petitioner’s employment which resulted in petitioner bringing about this article 78 proceeding.

The two Board members that testified at the disciplinary hearing were personally involved in the matter and should have disqualified themselves from reviewing the recommendation and being involved in the decision of this matter. Also, the petitioner is entitled to pack pay and benefits regardless of whether he is terminated or not.

Accordingly, the Court granted the petition, annulled the determination, with costs, and remitted the matter to the Board of Education for a review of the findings of the hearing officer and a determination of the back pay amount and benefits owed to the petitioner.

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Probationary teacher's retaliatory termination mandates judicial review

Matter of Lisa Capece v Margaret Schultz, as Community Superintendent of Community School District 31

Petitioner brought about this Article 78 proceeding to review a determination of Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education terminating petitioner from her position as a probationary public school teacher. Petitioner began teaching in 2005. Her probationary term was supposed to end in 2008 but she was allegedly coerced into an “Extension of Probation Agreement” in 2007 which extended her probationary period by one year to allow petitioner to demonstrate improvement in her alleged areas of difficulty. During the extended probationary period, petitioner received two unsatisfactory evaluations. She was also required to attend several disciplinary meetings due to alleged instances of misconduct for violating the school’s telephone policy and altering the program schedule without prior permission. Due to these incidences, the Superintendent notified petitioner of her termination. Petitioner then appealed this decision to the Department of Education’s Office of Appeals and Reviews. A hearing was held and the recommendation to discontinue petitioner’s probationary service was upheld. The Superintendent re-affirmed her decision and petitioner commenced this Article 78 appeal.

Petitioner alleged in her petition that she was the victim of harassment and discriminatory treatment in retaliation for her union activities. She argued that she had received only satisfactory reviews until she became involved in activities as the union co-chapter leader. Petitioner even filed a complaint with the Chancellor of the Department of Education asserting that she was being subjected to harassment but the complaint was denied due to lack of evidence. Respondents maintain that a probationary employee can be terminated at will and since petitioner’s record show unsatisfactory work performance and misconduct, the termination was not made in bad faith.

The Court feels that petitioner met her evidentiary burden of producing sufficient evidence to raise a material issue of fact regarding whether or not her termination was made in bad faith as a retaliatory measure to punish her for her activities in the local teachers’ union. The evidence shows that the unsatisfactory performance evaluations and alleged incidences of professional misconduct occurred only while petitioner was engaged in union activities and therefore the retaliatory nature of petitioner’s termination cannot be determined on the facts so far provided. The Court feels that judicial review is mandated and the matter must proceed to trial.

Accordingly, the Court granted the petition to the extent that the parties must appear for a preliminary conference. The trial date for this case is still pending.

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Petitioner awarded back pay for time suspended beyond thirty days

Matter of Elizabeth Miller Nabors v Town of Somers

Petitioner, Elizabeth Miller Nabors, began working part time for the Town of Somers in 2003. Though she worked about 10 hours a week, Nabors submitted claims to the Unemployment Insurance Division of the New York State Department of Labor (UID) stating that she was not working at all. Once her position became full time, she received notice from the UID informing her that she was not entitled to the benefits that she had received and was subject to a penalty due to her misrepresentation of her eligibility. Nabors then requested a hearing before the Unemployment Insurance Appeal Board which resulted in the administrative law judge confirming the initial determination. The Town then commenced a disciplinary action against Nabors charging her with two counts of misconduct and one count of incompetence and placed her on an unpaid suspension. A hearing was scheduled for March 2006.

Nabors’ counsel requested the hearing be adjourned to a later date. Due to various other adjournments, the hearing was not conducted until July 2006. The hearing officer issued a decision in January 2007 finding Nabors guilty of all three charges. The final resolution, terminating petitioner’s employment was entered in May 2007; 15 months after Nabors suspension began.

Nabors then commenced this appeal to review the decision, alleging wrongful discharge, and to recover back pay for the period of the suspension exceeding 30 days. Since the determination to terminate petitioner was supported by substantial evidence and was not so severe a penalty as to shock the conscience, the Court dismissed this part of the petition. The Court did however agree that Nabors was due to receive back pay for the period of time she was suspended beyond the 30 day limit even though she was found guilty of the charges against her.

Accordingly, the Court granted the petition to the extent of awarding petitioner back pay, otherwise denied the proceeding, and remitted the matter to Supreme Court for a hearing to determine the amount of back pay to be awarded.

Read more about this Article 78 employment law 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.

Judge directs town to hold a hearing on whether mining is permitted

Supreme Court Justice Donald Cerio ruled in two Article 78 proceedings involving the town of Sullivan and a proposed mining operation. Petitioners brought about the appeal to annul Local Law No. 6 regarding Mineral Resource Use and Mining/Quarrying Use districts in the town. Cerio’s ordered the Town of Sullivan Zoning Board of Appeals (ZBA) to holding a hearing to determine whether mining is a permitted use in an agricultural zone. He based his decision on a lack of observance of the State Quality Environmental Review Act and a lack of a certified transcript from the ZBA’s last hearing. Many Quarry Road residents are protesting the mining operation and feel that mining should not be permitted.

The ZBA must make a decision within sixty days of the Judge’s ruling.

Read more about this Article 78 zoning 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.

Correction Officer denied Article 78 appeal for disability retirement benefits

Matter of Wayman Neely v Thomas DiNapoli, as State Comptroller

Petitioner brought about this Article 78 appeal to review a determination of the Comptroller denying him his applications for accidental and performance of duty disability retirement benefits. In 1985, petitioner, a corrections officer, fell from a ladder during a training exercise and injured himself. Petitioner sustained calcaneal fractures of both ankles and had to undergo multiple surgeries and rehabilitation. In 2000, petitioner reinjured his ankles while attempting to settle a disturbance between two inmates. Petitioner continued to work until he retired in 2003.

Petitioner thereafter applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

The Hearing Officer determined that since an accident must be the result of a completely unforeseeable event during the performance on routine duties, petitioner’s injury would not fall under this definition and therefore the application must be denied. Petitioner bore the burden of proving the 1985 incident constituted an accident and although the misstep may have been caused by sweat on the ladder rungs, this is not sufficient proof for an award of accidental disability retirement benefits.

In regards to petitioner’s application to performance of duty retirement benefits for the injury sustained in 2000, while there is no question that petitioner is permanently disabled, the issue of whether this disability is directly the result of the incident in 2000 is debatable. The Retirement System’s board certified orthopedic surgeon believed that the disability was due to posttraumatic osteoarthritis caused by the bilateral fractures sustained in 1985 and could not have resulted solely from the 2000 injury. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rational and fact-based upon the examination of petitioner, the Court will not disturb respondent’s decision.

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

Read more about this Article 78 disability retirement benefits case here.

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

Police officer's Article 78 appeal for accidental disability retirement benefits denied

Matter of Tracy Wolak v Thomas DiNapoli, as State Comptroller

This Article 78 proceeding was brought about to review a determination of the Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner began working as a police officer for the Pelham Manor Police Department in 1990. Two years later, she was assigned to the K-9 unit where she worked until she was involved in an incident in 1999. While participating in a training exercise, petitioner was bitten by a patrol dog on her unprotected bicep instead of the protected portion of her forearm. As a result, petitioner suffered nerve damaged causing her to be unfit to return to full duty as a police officer.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits. The performance of duty disability retirement benefits were awarded but the accidental benefits were denied. The Hearing Officer upheld the denial and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

In order to qualify for accidental disability retirement benefits, the injury must arise from a sudden and extraordinary event not related to the ordinary risks of performing routine duties. Petitioner was participating in a training exercise that was part of her ordinary duties that involved risks and the manner in which she was injured was not outside of the normal risks associated with the training.

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

Read more about this Article 78 accidental disability retirement benefits case here.

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Nurse is granted Article 78 appeal for denial of disability retirement

Matter of Enide St. Lois v New York City Employees’ Retirement System and the City of New York

In this Article 78 case, petitioner, a 42-year-old pediatric Registered Nurse, sought a judgment annulling the Board of Trustees (Pension Board) for New York City Employees’ Retirement System (NYCERS) which denied her application for disability retirement. Petitioner sustained on-the-job injuries to her neck and right shoulder area in 2004. She returned to work in 2006 but then went back on sick leave later that year. She was then terminated due to her inability to perform her duties as a staff nurse. Petitioner then applied to NYCERS for disability retirement. The Medical Board recommended denial of her application to the Pension board which adopted the recommendation. Petitioner then submitted a renewed application with additional medical reports from four physicians. The Medical Board and Pension Board again denied petitioner’s application claiming that the evidence did not prove that petitioner was disabled from performing her work duties. Petitioner then commenced this Article 78 proceeding.

As in all Article 78 proceeding, the Court can only determine whether the action of an agency had a rational basis or was arbitrary and capricious. In this case, the Medical Board’s recommendation lacked a rational basis. The report never provided any explanation for the decision to deny petitioner’s application. Additionally, the Medical Board ignored evidence presented by both petitioner’s doctors and their own doctors that indicated petitioner had lost sensation in her right hand and had limited range of motion in her spine which would clearly prevent her from performing the physical duties of her job. The Medical Board also only considered tests and reports that supported the denial and ignored any evidence to the contrary. Therefore, the Medical Board and the Pension Board’s determination was unsupported by any credible evidence and must be annulled.

Accordingly, the Supreme Court granted the petition, annulled the denial of petitioner’s application for disability retirement, remanded the instant matter to the New York City Employees’ Retirement System for a new medical report and findings, and ordered a new determination by the Pension Board.

Read more about this Article 78 disability retirement case here.

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Article 78 discrimination and retaliation case dismissed

Matter of Idella Abram v New York State Division of Human Rights, City of Buffalo and Buffalo State Police Department

Petitioner brought about this Article 78 proceeding to annul a determination of the New York State Division of Human Rights (Division) which ruled that she failed to establish that respondents discriminated against her based on a disability or retaliated against her based on her filing of a complaint with the Equal Employment Opportunity Commission (EEOC). Petitioner was a 19 year veteran of the Buffalo Police Department (BPD) with a long-standing animosity between her and her supervisor Lieutenant Guy Zagara. In May 2003, petitioner filed a complaint with the EEOC against Zagara who learned of the complaint later that summer. In September 2003, petitioner was injured when she hit her knee with the door of a patrole vehicle. She applied for injured on duty status (IOD) but was denied. Petitioner was allegedly reinjured in November while subduing an unruly man. Again, petitioner filed for IOD status and was denied, mainly due to a report by Zagara asserting that he was at the scene of the accident and did not see petitioner engaging in any action that could have resulted in an injury.

Petitioner then filed a complaint with the Division. After a hearing the Administrative Law Judge determined that the petitioner failed to prove a prima facie case of either discrimination or retaliation and therefore dismissed the complaint. The Division adopted this decision and the petitioner then filed this Article 78 appeal.

Review of an administrative decision is limited to consideration of whether the determination was supported by substantial evidence. The Court felt that contrary to petitioner’s contentions, the determination was supported by substantial evidence and must be upheld. While the petitioner established that she was disabled, she failed to meet the burden of proof that she could perform the essential functions of her job with reasonable accommodation and the employer is not obligated to create a new light-duty position for a disabled employee. In respect to the retaliation claims, since several months passed between the filing of her EEOC complaint and the denial of her IOD status applications, the Court felt no causal connection could be established.

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

Read more about this Article 78 discrimination retaliation case here.

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Judge rules the Atlantic Yards Project to be a matter for the political will

Develop Don’t Destroy, Inc. and Prospect Heights Neighborhood Development Council (Brooklyn), Inc. v Empire State Development Corporation and Forest City Ratner Companies, LLC

In these Article 78 proceedings, petitioners are challenging a modified general project plan for the Atlantic Yards Project in Brooklyn, a massive, publicly subsidized, mixed-use development project which will include an 18,000 seat sports arena for the New Jersey Nets and 16 high rise buildings for commercial and residential use. Petitioners argue that Empire State Development Corporation (ESDC) violated the State Environmental Quality Review Act (SEQRA) by not preparing a Supplemental Environmental Impact Statement (SEIS) based on the proposed changes to the project and that ESDC violated the New York Urban Development Corporation Act (UDCA) by not assuring that a plan is in place to alleviate the issue that ESDC previously found at the site.

Courts should not second-guess agency decision making unless it is arbitrary, capricious, or unsupported by the evidence. Since the lead agency ESDC felt that an SEIS was not necessary to address the changes made after filing the SEQRA findings statement, the Court must deny petitioners’ challenge. ESDC’s elaboration of its reasons for using a 10 year build-out and for not requiring an SEIS was not irrational as a matter of law and therefore should not be disturbed.

Accordingly, the Supreme Court denied the petitions of Develop Don’t Destroy (Brooklyn), Inc. and Prospect Heights Neighborhood Development Council, Inc. and denied the motion for preliminary injunction.

Read more about this Article 78 case here.

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Municipal lawyer granted retirement benefits but denied additional relief

Matter of Albert D’Agostino v Thomas DiNapoli, as State Comptroller

Petitioner in this Article 78 case is an attorney who worked part time as counsel for several municipalities and school districts in addition to maintaining a private law practice. In 2000, he retired from municipal service and began receiving public retirement funds. In April of 2008, the State Comptroller changed the regulations for New York State and Local Employees’ Retirement System regarding the classification of professional municipal service providers as employees or independent contractors. Under the new regulations, petitioner’s enrollments in the Retirement System were invalidated and he was told he needed to return over $600,000 of retirement benefits that he had received.

Petitioner then commenced an Article 78 appeal seeking immediate reinstatement to the Retirement System alleging improper retroactive application of the new regulations and violation of his due process rights. The Supreme Court granted his petition and dismissed the determination to terminate petitioner’s pension benefits and membership in the Retirement System and ordered respondents to pay accrued arrears in petitioner’s pension. Petitioner then appealed the decision because all of his grounds were not granted relief. Since an appellant must be aggrieved in order to file an appeal, the Court ruled that the appeal must be dismissed. Petitioner was granted the ultimate relief that he sought and therefore cannot be aggrieved.

Accordingly, the Supreme Court dismissed the appeal, without costs.

Read more about this Article 78 retirement benefits case here.

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

Police officer denied accidental disability retirement benefits and performance of duty retirement benefits

Matter of Charles M. Hulse v Thomas DiNapoli, as State Comptroller

In 2001, petitioner, a 20-year old police officer for the Town of Ramapo Police Department, injured his back while lifting a large person to perform CPR. Petitioner was out of work for a month following this incident due to a herniated lumbar disc. In 2003, petitioner injured his shoulder while engaged in a training program for bike patrol. Petitioner was participating in an exercise in proper technique for avoiding injury when falling off a bicycle. Petitioner was unable to return to full duty due to this injury and was only able to return to work part time in a light duty capacity.

Petitioner applied for accidental disability retirement benefits and performance of duty retirement benefits and was denied. The Hearing Officer upheld the denials and respondent adopted the decision. Petitioner then commenced this Article 78 proceeding to review the determination.

Since an accident in this context must be the result of a completely unforseeable event during the performance on routine duties, petitioner’s shoulder injury would not fall under this definition. Petitioner was participating in a training exercise that was part of his ordinary duties that involved risks and the manner in which he was injured was not unexpected or unforeseeable. Since substantial evidence exists to support respondent’s determination, the Court will not disturb it.

In regards to petitioner’s application to performance of duty retirement benefits for both injuries, petitioner failed to prove that he was permanently disabled from the performance of his duties. Though petitioner’s doctor concluded that his prognosis was “poor” for a full recovery from his shoulder injury, the respondent’s doctors provided evidence that a reasonably safe surgical procedure would relieve his pain and restore full function to his shoulder. Since respondent has the exclusive authority to resolve conflicts in medical opinion and the respondent’s doctor’s opinion was rationally based on the examination of petitioner, the Court agreed with respondent’s decision.

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

Read more about this Article 78 disability retirement benefits case here.

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Denial of correction officer's performance of duty retirement benefits annulled due to factual errors

Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller

Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the stress of his employment duties which included dealing with inmate riots, threats, attacks, and administrative pressures. Petitioner was found to be permanently disabled but his petition was denied on the ground that his disability was not due to performance of duties. The Hearing Officer determined petitioner’s disability was congenital and denied his application for performance of duty disability retirement benefits. The respondent accepted this determination and petitioner commenced this Article 78 appeal to annul the determination.

The petitioner contended that the Hearing Officer’s decision contained significant factual errors such as stating that petitioner had high blood pressure and diabetes with no evidence to support this finding. Additionally, the decision indicated that an expert physician testified regarding his 2001 examination which is false. The physician never testified but only submitted a written report. Due to these factual errors, the Court ruled that respondent failed to present an adequate or accurate statement of the factual basis of its determination and therefore the determination must be annulled.

Accordingly, the Supreme Court annulled the determination, without costs, and remitted the matter to respondent for further proceedings.

Read more about this Article 78 performance of duty disability retirement benefits case here.

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

Henderson Town Council files Article 78 against proposed wind-tower project

The town of Henderson has filed an Article 78 proceeding to annul the town of Hounsfield Planning Board’s site plan approval for the Galloo Island Wind Farm proposal. Upstate Power proposed the construction of a wind farm and a new power line on Galloo Island which would transport 1,000 megawatts of service to downstate customers.

Being reliant on tourism dollars, the Village of Pulaski and the surrounding area are concerned about the aesthetic impact of above-ground lines which could negatively impact tourism. The Town of Henderson has the same concerns about a negative economic impact. The town feels that the Department of Environmental Conservation (DEC) failed to look at the environmental concerns such as land use, wetlands, avian and aquatic species and visual, archaeological and historic resources, that surround this proposal. Henderson argues that the project will affect residents’ use and enjoyment of their property due to noise impacts, visual impacts, contamination of property, decreased property values and additional aesthetic impacts.

The town is seeking to have a judge declare that the DEC failed to comply with SEQRA requirements and to vacate the Planning Board’s site plan approval.

Read full article here.

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Home Depot U.S.A., Inc. Article 78 appeal to compel review of sewage rates granted

Matter of Home Depot U.S.A., Inc v Town Board of the Town of Southeast

In this consolidated Article 78 appeal, petitioners sought to compel the Town Board of the Town of Southeast and the Town of Southeast (thereinafter together the Town) to review the sewage rates of Independent Sewage Works, Inc., (ISW). The Supreme Court denied the Town’s motion to dismiss the consolidated proceeding and granted the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the sewage rates due to the five year lapse of time since the last review.

Petitioners filed a complaint to compel the Town to review and reduce the rates IS was charging them in June of 2005. When the Town failed to take action, petitioners commenced an Article 78 appeal since the Town was required to review the rates every five years. The Town and ISW moved to dismiss the proceeding and the petitioners cross-moved for summary judgment. The Supreme Court denied the motion and granted the cross motion directing the Town to review the sewage rated being charged by ISW.

The Court finds that the Supreme Court should have dismissed the parts of the consolidated proceeding seeking to compel the Town to consider the issues raised in the complaint due to missing the four month statute of limitations and failing to demonstrated a clear legal right under Transportation Law § 121. The Supreme Court was, however, correct in granting the branch of petitioners’ cross motion for summary judgment seeking to compel the Town to review the rates charged by ISW since five years had passed since the last review. The petitioners were timely in filing this appeal and established a clear legal right to compel the Town to review the sewage rates.

Accordingly, the Supreme Court modified the order and judgment by deleting the provision denying the branch of the motion to dismiss the consolidated proceeding to compel the Town Board and Town to consider the issues raised in petitioners’ administrative complaint and substituting a provision granting that branch of the motion.

Read more about this Article 78 town of Southeast case here.

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Article 78 application for succession rights to apartment denied

Matter of Flores-Tully v City of New York Department of Housing Preservation and Development

Petitioner brought about this Article 78 appeal to review a determination of the City of New York Department of Housing Preservation and Development denying petitioner’s application for succession rights to an apartment owned by Dayton Tower’s Corporation. The Supreme Court denied the petition and dismissed the proceeding which resulted in this appeal.

Petitioner claims that the decision was arbitrary and capricious and lacked a rational basis. The Court disagrees because petitioner was never named on the income affidavits filed for the apartment prior to the tenant of record’s death. Though the tenant was petitioner’s husband, Dayton was never notified of her occupancy. Additionally, she filed income affidavits that showed she occupied another apartment unit in the same building.

Accordingly, the Supreme Court affirmed the determination, with one bill of costs.

Read more about this Article 78 housing case here.

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Maintenance worker denied ordinary disability retirement benefits

Petitioner, Rosina Bautista, was as a maintenance worker at New Rochelle High School in Westchester County. She sustained various injuries occurring between 1994 and 2001 and ceased working in May of 2001 due to these injuries. She then applied for ordinary disability retirement benefits and was denied on the grounds that she was not permanently disabled from performing her job duties. Petitioner then brought about this Article 78 proceeding to review the determination denying her ordinary disability retirement benefits.

The Court disagreed with petitioner’s argument that the Hearing Officer’s decision adopted by respondent lacked factual basis for denying her application. The decision was based on the expert medical examinations of three physicians who examined petitioner. All three doctors found petitioner not permanently disabled and while her personal physician reached a different conclusion, the respondent has the authority to resolve conflicts in medical evidence and to choose the opinion of one expert over that of another. The Retirement System’s experts’ opinions were rational and based on facts and therefore the Court declined to disturb it.

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

Read more about this Article 78 disability retirement benefits case here.

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Teacher awarded 28 days pay for late notice of termination

In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

Read more about this Article 78 termination case here.

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Article 78 appeal to teacher's termination denied

Matter of Kevin Cummins v New York City Department of Education

Petitioner brought about this Article 78 proceeding to appeal his termination by the New York City Department of Education, claiming it was arbitrary and capricious and made in violation of his right to due process.

Petitioner began working for the Department of Education in 2000 as a non-tenured teacher. In March 2008, he was accused of corporal punishment and sent to a reassignment center. Later that year he was denied his Certification of Completion of Probation and it was recommended that his license be terminated. The Department of Education’s reason for termination was two unsatisfactory classroom observations, two allegations of verbal and corporal abuse, and a history of lateness. At the hearing, the Chancellor’s Committee upheld the recommendation to deny certification. Petitioner then commenced this Article 78 appeal to annul the determination.

Petitioner argued that he was not allowed to call witnesses to his hearing and therefore the determination to terminate his employment should be annulled but he did not raise this objection at the time of the hearing and therefore it cannot be considered for the first time in reviewing the administrative proceeding.

Since petitioner was a probationary employee and probationary teachers can be terminated at any time during the probationary period for any reason and petitioner failed to establish that the Department of Education’s determination was arbitrary and capricious or an abuse of discretion, the Court must uphold the respondent’s decision.

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

Read more about this Article 78 NYC Department of Education appeal.

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Article 78 appeal to annul tenancy termination denied

Matter of Yasmeen Lugo v The New York City Housing Authority

Petitioner, Yasmeen Lugo, was the sole authorized tenant for her apartment in a New York City Housing Authority (NYCHA) public housing development. According to NYCHA, Petitioner allowed illegal drug transactions to occur in her apartment and was chronically delinquent on her rent payments. These issues caused NYCHA to charge Petitioner with non-desirability, breach of rules and regulations, endangering the welfare of a child, and chronic rent delinquency. After a hearing, NYCHA recommended terminating Petitioner’s tenancy. Petitioner argued that she had no knowledge of any illegal drug dealing activities by her two friends that often stayed in her apartment. The Board adopted the hearing officer’s decision and terminated Petitioner’s tenancy. Petitioner then commenced this Article 78 appeal.

CPLR 7803 states that the court review of a determination of an agency should only be regarding whether or not the determination was made in violation of lawful procedure or was arbitrary and capricious. In this case the decision for termination of tenancy was based on substantial evidence and the Court found no reason in the record to annul the NYCHA’s decision. The Petitioner’s assertion that she was unaware of any illegal drug transactions in her apartment is not sufficient to overcome the other evidence presented at the hearing.

Accordingly, the Supreme Court denied the petition.

Read more about this Article 78 Housing Authority appeal.

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Article 78 against NYC Housing Authority denied

Matter of Anne Baldwin v Tino Hernandez, as Chairman and Member of the NYC Housing Authority

Petitioner brought about this Article 78 proceeding to review a determination from the New York City Housing Authority that permanently excluded her son from her public housing apartment.

The reasons behind the Housing Authority’s condition that petitioner may continue tenancy on exclusion of her son for non-desirability were supported by substantial evidence, and not arbitrary and capricious. Petitioner’s son pleaded guilty to assault, threatening two Housing Authority employees, and harassing a former supervisor. These instances all supported the Housing Authority’s decision showing that the exclusion was appropriate and not shocking to the conscience.

Accordingly, the Supreme Court confirmed the determination, denied the petition, and dismissed the proceeding.

Read more about this Article 78 NYC housing authority appeal.

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Decision to make NYPD hair drug testing illegal overturned

Earlier this year, we posted a blog about four former NYPD officers who were suing the Department over terminations after receiving false positives from the highly debated new method of hair drug testing. Click here to read the original blog.

In January 2005, the New York City Police Department announced that it would be using a new methodology for hair testing (radioimmunoassay or RIAH) for all drug screening of uniformed members. Then in August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. The unions protested that this would require collective bargaining prior to making the change. The Supreme Court agreed and ordered the NYPD to bargain with the police unions before implementing the aforementioned changes in drug-testing procedures. The Board of Collective Bargaining ruled that the expansion of the categories subject to testing, from urine to hair analysis, and the change in testing methodology should be subject to collective bargaining.

In January 2007, the City then brought about an Article 78 appeal to annul the Board’s decision arguing that hair testing was the most effective method of drug testing and that the procedures were identical to those already in effect in numerous contexts, as the NYPD already uses RIAH in certain situations. In December 2007, the Supreme Court granted the City’s petition and annulled the Board’s decision. In October 2008, the Appellate Division reversed the Supreme Court’s judgment and reinstated the Board’s decision. This resulted in yet another Supreme Court appeal.

The Court feels that since the detection and deterrence of wrongdoing within the NYPD, especially illegal drug use, is an integral component of the Police Commissioner’s responsibility to maintain discipline within the force. The Court believes that drug testing methodology and testing triggers are encompassed within the Commissioner’s disciplinary authority and therefore should be excluded from collective bargaining.

Accordingly, the Supreme Court reversed the decision of the Appellate Division, with costs, and reinstated the judgment of Supreme Court.

Read more about this Article 78 NYPD drug testing appeal.

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Article 78 revoked driver's license appeal granted

Matter of David Feder v New York State Department of Motor Vehicles

Petitioner brought about this Article 78 proceeding to review a determination of the New York State Department of Motor Vehicles (DMV) which revoked his driver’s license pursuant to Vehicle and Traffic Law §510.2, imposed a driver’s responsibility fine, and found him ineligible for a restricted use license. The New York State DMV then appealed a decision of the Supreme Court which granted petitioner’s appeal and annulled the DMV’s determination.

Petitioner was issued speeding tickets in August 2005, February 2006, and July 2006. In November 2007, petitioner pleaded guilty to the August 2005 speeding ticket and the following day the DMV revoked his driver’s license for at least 6 months on the grounds that petitioner had been convicted of 3 speeding violations within 18 months. The DMV also informed petitioner that he was ineligible for a restricted use license since he was already issued one within the past 3 years.

When petitioner was convicted of the August 2005 speeding ticket in November 2007, he had not yet been convicted of the other two violations and therefore had not been convicted of 3 speeding violations within an 18 month period. Thus, the DMV’s determination did not have a rational basis and the penalty imposed was an abuse of discretion.

Accordingly, the Supreme Court affirmed the judgment granting petitioner’s appeal, with costs.

Read more about this Article 78 driver's license revocation appeal.

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Five cases of denied accidental disability retirement benefits

In the following cases, the petitioners commenced Article 78 appeals to review the determination of respondent Comptroller denying their application for accidental disability retirement benefits. Each petitioner applied for accidental disability retirement benefits following their accidents and was denied. They next requested a redetermination and hearing which, in all instances, resulted in the Hearing Officer recommending the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced. In each case, the Supreme Court ruled against the petitioners, confirming the decision of the Comptroller and dismissing the petitions.

In order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld.

Bruno Piccinini v Comptroller of the State of New York

Petitioner, a security service assistant for the State University of New York Police Department, was injured when he tripped on an uneven section of the sidewalk while performing a routine patrol. Since petitioner admitted to patrolling the sector where the accident occurred on a regular basis and to being “very familiar” with the sidewalks, the Comptroller’s determination is supported by adequate evidence.

Read full decision here.

Paul Grutzner v Deputy Comptroller of the State of New York

Petitioner, a retired police officer of 40 years, submitted an application for accidental disability retirement benefits asserting permanent disability due to work-related injuries sustained in 1963, 1982, and 1986 and was denied. Petitioner testified to performing normal work duties of a police officer when each of the incidents occurred. In 1963, petitioner was attempting to climb a stairwell with missing steps while investigating a possible burglary when he fell. He was aware that the steps were damaged and therefore the fall was the result of his own misstep. In 1982, petitioner was riding a motorized dirt bike as part of a security detail when the bike “kicked-out” while descending a hill causing him to be injured. Petitioner was an accomplished motorcycle rider and admitted to riding down the same hill three times that day. Therefore, the incident resulted from an ordinary work related duty. In 1986, petitioner was injured while attempting to kick open a locked door to execute an arrest warrant. He attested to having done the same activity 150-200 times before indicating that the incident was not sudden and unexpected.

Read full decision here.

Michael Lorenzo v Comptroller of the State of New York

Petitioner, a detective employed by the City of Yonkers Police Department, injured his neck while exiting a police car in 2003. Petitioner claimed his disability was due to two earlier incidents, in 1991 and 1992, in addition to the accident in 2003. In 2003, the petitioner parked his unmarked car too closely to the adjacent car and hit his head while trying to get out of the car. Petitioner testified that “go[ing] out and arrest[ing] bad guys” were activities that would require him to enter an exit his police vehicle supporting the Comptroller’s assertion that the event precipitating petitioner’s injury was a inherent risk in the performance of his routine duties. Petitioner failed to establish that his neck injury was caused by the incidences in 1991 and 1992.

Read full decision here.

Martha DeLaCruz v Comptroller of the State of New York

Petitioner, a criminal investigator for the Westchester County District Attorney’s office, was injured when she fell during a training program in dignitary protection. Petitioner was newly assigned to the position of driver and bodyguard for the District Attorney and was injured completing a training exercise in which she had been previously instructed on how to act during it. Therefore, the incident in question resulted from part of petitioner’s ordinary job duties and was not an accident according to the meaning of the Retirement and Social Security Law.

Read full decision here.

Kenneth Rolon v Comptroller of the State of New York

Petitioner, a police officer employed by the City of Newburgh Police Department, sustained a back injury while changing a flat tire on his patrol car. Petitioner testified that he had never changed a flat tire before and usually a mechanic would be dispatched to do this task. In this case however, petitioner’s watch commander directed him to change the tire because a mechanic was unavailable and part of petitioner’s duties included following the orders of his watch commander. Therefore, substantial evidence supports the Comptroller’s determination that petitioner was injured while performing regular employment duties.

Read full decision here.

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Willets Point residents filing an Article 78 against redevelopment project

Seventy-seven year old Joe Ardizzone has lived in Willets Point his entire life. He owns a house and rents out the downstairs as a deli and restaurant. The city is planning a $3 billion redevelopment project that includes housing, a school, offices and shops, a hotel, and a small convention center on the land now occupied by businesses and Ardizzone. Mr. Ardizzone does not want to leave the house he was born in on Willets Point Boulevard and is angry over the way the city has forced their project on the people working in Willets Point. He is also concerned about the lack of a sewage treatment plant that would be necessary to handle the expected influx of people with the new development. Supporting Ardizzone are members of Willets Point United which is composed of business owners who are fighting to keep their property. This group has commenced an Article 78 challenging the environmental review done by the city in Willets Point and is currently waiting a judge’s decision. An eminent domain hearing is expected to be held early next year.

Read full article here.

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Article 78 appeal for expansion of multifamily barn denied

Matter of Michael Mimassi v Town of Whitestown Zoning Board of Appeals

Petitioner brought about this Article 78 proceeding to challenge a judgment of the Supreme Court dismissing a petition to review a determination of the Whitestown Zoning Board of Appeals (ZBA). Petitioner purchased property in the Town of Whitestown that included a farmhouse that had been converted into a three-family dwelling. The Town’s Code does not permit multifamily dwellings but since this farmhouse was converted prior to the passage of the current Code, the building was permitted to remain as a preexisting nonconforming use. Petitioner proceeded to convert the barn into eight apartment units which prompted the Town’s Codes Enforcement Officer to issue an “order to remedy violation” and ordered the tenants to vacate. Petitioner then appealed to the ZBA which affirmed the order to remedy violation and determined that the construction of the apartment units violated the Code. Petitioner then filed an Article 78 appeal to annul the determination in Supreme Court. The petition was dismissed prompting this appeal.

The Court felt that since the Code prohibits multifamily dwellings, the expansion of the barn would nullify the acceptable preexisting nonconforming use and therefore the ZBA’s determination was not arbitrary and capricious. Petitioner did not take into account the ordinances addressing the issue of a nonconforming use and his discrimination argument lacked extrinsic evidence of clear and intentional discrimination sufficient to require a trial.

Accordingly, the Supreme Court affirmed the judgment so appealed from, without costs.

Read more about this Article 78 zoning board appeal.

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Article 78 to review Zoning Board of Appeals decision granted

Matter of Craig Emmerling and Lynn Emmerling v Town of Richmon Zoning Board of Appeals

This article 78 appeal was brought about to challenge a judgment of the Supreme Court dismissing a petition. Petitioners commenced an article 78 appeal to reverse the determination of the Town of Richmond Zoning Board of Appeals (ZBA) that required a site plan review by the Town Planning Board prior to petitioners being allowed to erect a fence on their property. The Supreme Court dismissed their appeal which led to this proceeding.

The Court feels that Supreme Court erred in dismissing the petition in its entirety. The ZBA’s determination that a site plan review was required prior to petitioners’ erection of a fence was contrary to the Zoning Laws. The Court found that respondents’ argument that the review was required due to the fence changing the traffic flow on petitioners’ property was against merit, as was the contention that a review was necessary due to the fence not being included in the original site plan for petitioners’ property. The Court felt that the ZBA’s interpretation of the zoning code was irrational, unreasonable, and inconsistent.

Accordingly, the Supreme Court reversed the judgment so appealed from, granted the petition and annulled the determination.

Read more about this Article 78 zoning board appeal.

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School teacher's termination upheld due to failure to complete mandated sexual harassment training

Matter of Bruce Harris v Department of Education of the City of New York

In this Article 78 appeal case, petitioner sought to challenge respondents’ determination terminating petitioner’s employment as a New York City school teacher and to gain reinstatement of his employment with back pay and benefits. After a hearing, petitioner, a tenured teacher, was ordered by respondent, Department of Education’s Hearing Officer, to serve a six-month suspension and complete sexual harassment training before he would be reinstated to his position. No evidence exists to suggest that petitioner’s rights were violated. Ten months post-hearing petitioner still had not completed the ordered sexual harassment training which resulted in his termination. Petitioner argued that he was due a second hearing prior to termination but raised no factual issue over the completion of the directed training.

Accordingly, the Supreme Court affirmed the judgment granting respondents’ cross motion to dismiss the petition and dismissing the proceeding.

Read more about this Article 78 termination appeal.

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Suffolk County Police Officer denied accidental disability retirement benefits

Matter of John Welsh v New York State Comptroller

Petitioner commenced this Article 78 appeal to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. Petitioner, a Suffolk County police officer, was injured by an emotionally disturbed man whom he was escorting to a hospital psych ward. Following the attack, petitioner applied for accidental disability retirement benefits was denied and was denied. He then requested a hearing which resulted in the Hearing Officer recommended the claim be denied on the grounds that petitioner did not sustain an accident within the meaning of the Retirement and Social Security Law. The Comptroller upheld the Hearing Officer’s recommendation and this Article 78 proceeding was commenced.

Petitioner was granted performance of duty disability retirement benefits but in order to qualify for accidental disability retirement benefits, the underlying accident must be completely out of the ordinary and unexpected and not resulting from a performance of a routine employment duty. The Comptroller has the exclusive authority to decide whether an accident occurred within the meaning of the law and if his determination can be supported by substantial evidence, it must be upheld. Since the petitioner had engaged in similar escort duties in the past which would indicate possible danger and the fact that injury by physical contact is inherent in the routine performance of petitioner’s duties, the Comptroller’s determination is supported by adequate evidence.

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

Read more about this Article 78 Accidental Disability Retirement Benefits appeal.

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Zoning issue remitted to planning board for further investigation

Matter of Anna Wei v Planning Board of Town/Village of Harrison

Petitioner brought about this Article 78 appeal to review a determination of the Planning Board of the Town/Village of Harrison denying her application to subdivide her property. The neighboring landlords then appealed from a decision of the Court which annulled the determination and remitted the issue to the Planning Board of the Town/Village of Harrison in order to make and specify factual findings as basis for its determination.

The Court finds that the order appealed from is not appealable as of right.

Accordingly, the Supreme Court dismissed the appeal, with costs.

Read more about this Article 78 Planning Board appeal.

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Article 78 appeal for FOIL records denied

Matter of McCrory v Village of Scarsdale

Petitioner brought about this Article 78 appeal to review an order granting a motion by the Village of Scarsdale to dismiss her petition as time-barred. Petitioner sought to compel the Village to disclose certain records pursuant to the Freedom of Information Law. The Court felt that the original judgment was proper due to the proceeding not being commenced until five months after the Village informed petitioner that it would not disclose the records. The statute of limitations was four-months and therefore the appeal was not timely.

Accordingly, the Supreme Court affirmed the order and judgment and dismissed the petition.

Read more about this Article 78 appeal.

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Firefighter's appeal to review termination for cocaine usage denied

Matter of Peter Peltonen v Nicholas Scoppetta, Fire Commissiner of the City of New York, the Fire Department of the City of New York and The City of New York

Petitioner commenced this Article 78 appeal to annul the determination of Respondents terminating Petitioner’s employment as an FDNY fire fighter due to cocaine usage. Commissioner Scoppetta reviewed and accepted the recommendation of the Administrative Law Judge (ALJ), terminating Petitioner’s employment after he tested positive for cocaine during a routine drug screening. Petitioner argued that his termination was arbitrary and capricious and that his case was not handled in accordance with FDNY regulations.

Petitioner asserted that his alcoholism and cocaine usage was a result of his service following the attacks on the World Trade Center. Petitioner worked as a fire fighter to help in the rescue and recovery efforts and said the trauma of the daily stressed caused him to seek out a stronger drug than alcohol. Dr. John McCann, a clinical and forensic psychologist, diagnosed Petitioner with Post-Traumatic Stress Disorder (PTSD) and felt that the alcohol abuse and cocaine usage were effects of the PTSD. Petitioner also asserted that he suffered from a “disability” and therefore should not be fired.

Respondents argued that Petitioner’s use of cocaine was occasional and voluntary. Since he was able to exert self-control in the frequency of his cocaine use, his usage was a voluntary act of misconduct. Dr. McCann did not diagnose Petitioner with alcohol or drug dependency. Additionally, Petitioner used alcohol as a teenager and his alcohol use became a problem 2 years prior to 9/11. He also first used cocaine prior to 9/11.

The Court agreed with Respondents assertions that Petitioner’s drug usage was voluntary and felt that Petitioner failed to provide substantial evidence to prove otherwise. Since the purpose of the Court in an Article 78 appeal is to determine whether the action of an administrative agency had a rational basis, the Court found that the ALJ had sufficient evidence of Petitioner’s misconduct and that the penalty of termination was not shocking to one’s conscious.

Accordingly, the Supreme Court denied the petition.

Read more about this Article 78 appeal of a termination.

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Police Lieutenant denied accidental disability retirement benefits

Matter of Theodore Tomita v Thomas P. DiNapoli, as Comptroller of the State of New York

Petitioner brought about this Article 78 appeal to review a determination denying his application for accidental disability benefits. Petitioner was a police lieutenant employed by the City of Newburgh Police Department in Orange County. He tripped on a curb after working an overnight shift. Petitioner then filed for accidental disability benefits and was denied. He then requested a redetermination and a hearing. At the hearing, the Hearing Officer ruled in favor of Petitioner and determined that the incident qualified as an accident within the meaning of Retirement and Social Security Law §363. The Respondent then appealed the decision and it was reversed which led to Petitioner commencing this Article 78 appeal.

The Court notes that an accident within the meaning of Retirement and Social Security Law §363 is unexpected and not as a result of an activity performed during normal work duties. The burden of proof is on the Petitioner and since Petitioner admitted to being familiar with the parking lot and that the streetlights had been off other times, he could have reasonably anticipated the hazard. Therefore, Petitioner was injured as a result of his own misstep and not eligible for accidental disability benefits.

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

Read more about this Article 78 accidental disability retirement benefits case.

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Café not granted Article 78 appeal in unlicensed security guard situation

Matter of AJK CafE, Inc. v New York State Liquor Authority

In this Article 78 proceeding, Petitioner appealed a determination of the New York State Liquor Authority finding him in violation of 9 NYCRR 48.3 due to employment of an unlicensed security guard. The Liquor Authority imposed a $2,500 civil penalty and an alternative penalty of a 15 day suspension of Petitioner’s liquor license plus a $1,000 bond forfeiture. Petitioner brought about this Article 78 appeal to review the Liquor Authority’s determination.

The Court felt that substantial evidence established that Petitioner was indeed in violation of 9 NYCRR 48.3 in his employment of an unlicensed security guard. Though Petitioner insisted that the employee in quest was only a busboy that was mistakenly observed to be a security guard by the detective he did not offer any admissible proof to support his position. Since the Petitioner failed to present adequate evidence, the Court found no basis to disturb the decision of the Liquor Authority.

Accordingly, the Supreme Court confirmed the determination, denied the petition, and dismissed the proceeding.

Read more about this Article 78 Liquor Authority case.

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Stenographer's appeal for disability retirement benefits denied

Matter of Gina M. Hammond-Timpano v New York State and Local Retirement System

In this Article 78 proceeding, Petitioner commenced an appeal to review a determination of the Comptroller denying her application for disability retirement benefits.

Petitioner was exposed to fireproofing materials twice during the summer of 1992 while working as a stenographer for the Utica City School District. She sought medical treatment for physical maladies including difficulty breathing, burning in her eyes and mouth and swelling in her hands. In 1993, after she began experiencing these symptoms every time she came into contact with other materials and office supplies, Petitioner stopped working permanently.

In 2002, Petitioner applied for disability retirement benefits and was denied. She then requested a hearing and redetermination. The Hearing Officer ruled against Petitioner, stating that she failed to establish permanent incapacitation from performing the duties of her job. The Comptroller accepted the Hearing Officer’s finding which led to the commencement of this Article 78 proceeding.

In her appeal, Petitioner presented medical records from five treating physicians. Two of these doctors opined that she was permanently disabled from her exposure to chemicals but one subsequently stated that she would be able to return to work as long as she did not come into contact with any further respiratory hazards. The other doctor admitted that there was inadequate medical research to prove causation. Respondent provided two independent medical examiners who ruled Petitioner not permanently disabled. The Court felt that since there was conflicting medical evidence, the Comptroller had the authority to weigh the evidence and decide which opinion to credit. Since the Comptroller’s decision was supported by substantial evidence, the Court refused to overturn it.

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

Read more about this Article 78 Disability Retirement Benefits case.

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Teacher's Article 78 petition for extended employment denied

Matter of Janet Wilson v Board of Education of Harborfields Central School District

In this Article 78 proceeding, Petitioner Janet Wilson sought to review a determination of the Board of Education of the Harborfields Central School District declining to extend her employment contract. Supreme Court granted her appeal which resulted in the Board pursuing an appeal.

Petitioner alleged that the meeting in which the Board passed their resolution declining to extend Petitioner’s employment contract had inadequate notice pursuant to the Open Meetings Law. The Court felt that even if there was a technical violation, Petitioner failed to establish good cause to annul the Board’s determination.

Accordingly, the Supreme Court reversed the judgment, denied the petition and dismissed the proceeding.

Read more about this Article 78 Board of Education appeal here.

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Niagara County legislator resigns when residency is questioned

Andrea McNulty, a North Tonawanda Democrat decided to step down from her position following accusations that McNulty had violated a section of the public officer’s law which requires candidates to live in the districts that they represent. County Democrats first accused McNulty of violating this residency requirement back in May when they discovered through documents obtained under state Freedom of Information Law that McNulty’s husband owned a home in Pendleton. Though McNulty claimed to still reside at the North Tonawanda home, she announced that she would not seek re-election due to “many personal factors”. Democratic Party Chairman speculated that the resignation was more likely due to the fact that the committee was planning on filing an Article 78 proceeding to have McNulty’s legislative post vacated if she did not step down.

Read full article here.

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Board of Zoning Appeals decision reversed

Matter of Joseph Anayati v Board of Zoning Appeals of Town of North Hempstead

In this Article 78 case, petitioners sought to review a determination of the Board of Zoning Appeals (hereinafter BZA) of the Town of North Hempstead dismissing their application for area variances. In 2003, petitioners began building a home in North Hempstead. They received a building permit and a certificate of occupancy. Three years later, petitioners were given an appearance ticket from the Town’s Building Inspector alleging that their home violated two Town Code provisions. Petitioners then applied to the BZA for a determination that their building permit and certificate of occupancy were valid or alternately for area variances necessary to maintain the house.

The BZA dismissed petitioners’ application claiming that they lacked jurisdiction. Petitioners then commenced this Article 78 appeal to review the BZA’s determination. The Supreme Court denied the petition which resulted in another appeal to which the Court reversed the decision. The Court agreed with petitioners’ contention that the BZA has jurisdiction to review the Building Inspector’s determination that the house violated Town Code and the BZA has the ability to grant area variances.

Accordingly, the Supreme Court reversed the judgment, granted the petition, and annulled the determination remitting the matter to the ZBA to consider petitioners’ application on the merits.

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Article 78 petition fighting pistol license revocation denied

Matter of Mark Biggerstaff v Judge Karen A. Drago

Petitioner, Mark Biggerstaff, filed an Article 78 to review a determination of the respondent, Judge Karen A. Drago. When Petitioner was arrested on multiple charges stemming from his operation of a motor vehicle while intoxicated, Respondent decided to revoke Petitioner’s pistol license. The Court ruled that the Respondent’s determination was neither an abuse of her power or arbitrary and capricious. 

Read the rest of this Article 78 pistol license decision here.

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Medical Center files Article 78 over Medicaid reimbursement

Matter of Lutheran Medical Center v Richard F. Daines     

Lutheran Medical Center filed an Article 78 to review determination by respondents to retroactively adjust Petitioner’s Medicaid reimbursement rate from 1999 through 2003 and recoup overpayments due to a technical error. The Supreme Court originally granted the petition, but the respondent’s then moved to reverse the decision because the error was a mistake of fact not a mistake of judgment. At this time, the Supreme Court concluded that the respondent’s original determination was within their authority and denied petition. 

Read the rest of this Article 78 Medicaid reimbursement decision here.

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Article 78 appeal challenging failed civil service promotional examination granted

 

Chacko v New York City Department of Citywide Administrative Services

In a recent case handled by the Law Offices of Kevin P. Sheerin, Plaintiff Joseph Chacko, commenced this Article 78 appeal to challenge New York City Department of Citywide Administrative Services (DCAS’) determination that he failed a civil service promotional exam. Petitioner contended that DCAS scored the essay portion of his exam in an arbitrary and capricious manner.

In March of 2006, petitioner took a promotional examination that consisted of two parts: a multiple choice test and an essay. To score the essay portion, DCAS utilized a Rating Guide consisting of two sections, one that assessed the content of the essay and the other that focused on the clarity. This Rating Guide was used incorrectly to grade petitioner’s essay. Points were taken off for minor mistakes and in some cases nonexistent errors. Fundamental fairness dictates that deductions should not be made for correct responses. Also points taken off for the same mistake were categorized in different categories, which allowed the grader to circumvent the limit on point deductions set for each category of error. Additionally, petitioner argued that he was denied scrap paper and that the proctors ended the exam twenty minutes early thereby denying him the time to proofread his essay.

Accordingly, the Court granted the petition, annulled the decision of the Civil Service Commission, and remanded the matter for the regrading of petitioner’s exam.  Shortly thereafter Mr. Chacko was promoted to Supervisor.

To read the Judge's final disposition on this case, click on the following link: civilservice.sheerinlaw.com/uploads/file/Schlesinger Final Disposition.pdf

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

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Master plumber's license denied

John Arbuiso v. New York City Department of Buildings

In this Article 78 proceeding the Supreme Court of New York denied Petitioner’s request to annul respondent’s decision to deny petitioner’s application for reinstatement of his master plumber’s license. 

In 1999 Petitioner’s master plumber’s license expired, seven years later he requested reinstatement. Through written correspondence with the New York City Department of Buildings (DOB) Petitioner informed the DOB that he had been working as a plumber from 1997 to 2005 at various positions. The DOB denied petitioner’s application and requested that petitioner show active and legal engagement in the plumbing field during the time that his license was expired. 

After further correspondence from Petitioner about his work experience during the time his license was expired, the DOB concluded that Petitioner failed to clarify the legality of some of his work and his application was therefore denied. Petitioner then began an Article 78 proceeding, which was dismissed by the Supreme Court when they found that he failed to prove that Respondent’s decision was arbitrary and capricious. 

The one dissenting judge in this case argues that the Respondent’s denial of Petitioner’s application was inconsistent with the Administrative Code because Petitioner did indeed provide the necessary proof that he had retained proficiency. To force the petitioner to further clarify work experience is beyond the scope of the Administrative Code.

Read full article here.

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Zoning Board of Appeals variance denial upheld

Danny Alcantara v. Zoning Board of Appeals, Village of Ossing, State of New York

Petitioner applied to the Zoning Board of Appeals (ZBA), Village of Ossining, State of New York for an area variance regarding renovation of the commercial portion of the mixed use residential and commercial area. After a hearing, the ZBA denied Petitioner’s application. Petitioner then appealed to the Supreme Court, Westchester County which granted the petition and remitted the matter to the ZBA. The ZBA appealed this decision to the Appellate Division that ordered that the previous judgment be reversed because the determination of the ZBA was rational, not arbitrary and capricious. 

Read full article here.

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Article 78 relief is warranted to physician

Matter of Vivian Gina Giovanna Mihailescu, M.D. v James G. Sheenan, New York State Medicaid Inspector General, and Keith Servis, Director of New York State Office of Professional Conduct          

In this Article 78 proceeding, a medical doctor seeks to set aside a determination by the State Medicaid Inspector General denying her application to be reinstated as a provider in the Medicaid program. The Petitioner is board-certified in psychiatry and neurology, licensed to practice in New York and has been employed by hospitals in the Greater New York area between 1990 and 2003. At the beginning of 2004, one of the Petitioner’s patients filed a complaint against her with the State Department of Health, which then referred the complaint to the State Office of Professional Conduct (OPMC) for investigation and possible disciplinary proceedings by the Board of Professional Medical Conduct (the Board). Petitioner then resigned from her position at Metropolitan Hospital and worked for the next two and a half years at St. Joseph’s Medical Center while the OPMC continued to investigate her case. 

           

In December 2006, there was a Consent Agreement executed by Petitioner, OPMC, and the Bureau of Professional Medical Conduct. Under this agreement Petitioner waived her right to contest OPMC’s formal charges, all parties agreed to a 12-months suspension of Petitioner’s medical license, and that at the end of the 12-month period reactivation of her license would be dependant upon her meeting specified conditions. 

After meeting all conditions of the agreement, Petitioner was approved for Medicare reinstatement, but she was denied reinstatement in the Medicaid program by the Medicaid IG. Petitioner’s continuing exclusion from the roster of Medicaid providers effectively bars any governmentally licensed or operated facility from hiring her. The Medicaid IG argues that his authority to exclude physicians from enrollment as Medicaid providers includes power to determine independently which providers would pose a threat to the health and safety of Medicaid patients. The petitioner maintains that the IG’s function does not include independently assessing a provider as a professional. 

OPMC and BPCM are responsible for protecting both Medicaid and non-Medicaid patients. Therefore it is unlikely that legislature intended for the Medical IG to second guess the department by also investigating or evaluating the Petitioner. After a 12-month period it was determined by the department, that the Petitioner could safely be returned to hospital work, therefore the IG’s refusal to reinstate Petitioner is considered arbitrary and capricious and is granted relief through this Article 78. 

Read full article here.

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Article 78 handgun license denial

Daniel P. Wisotsky v Raymond Kelly, as Police Commissioner of the City of New York

Petitioner Daniel Wisotsky filed an Article 78 Petition in order to have the court annul the November 26, 2008 decision of Respondent Raymond Kelly, Commissioner of the New York Police Department to deny Petitioner the insurance of a premises residence pistol license. 

Petitioner is a 46 year old man, presently employed as a Security Supervisor by the Rockefeller family. As Security Supervisor he is responsible for the security of the Rockefeller offices, the Rockefeller’s private residence, and personal security for David Rockefeller and supervises six other security officers. Prior to this Petitioner served in the United Stated Marine Corps for twenty years and retired as a Warrant Officer. 

On November 15, 2001 Petitioner first applied for a premises residence license with the NYPD. Petitioner was initially denied by the License Division because, as indicated by Petitioner in his application, his discharge from the Marines was not under honorable conditions, involuntary, and predicated upon unacceptable conduct. After Petitioner’s appeal of the initial denial of his application, he began an Article 78 proceeding in December 2002. The Court ordered the License Division to compile more evidence and reasoning for the denial. The matter was settled when Respondent agreed to issue a premises residence license to Petitioner on October 12, 2004. 

On January 22, 2005 Petitioner took his handgun with him, outside to pursue two suspicious men he spotted outside his house. Since the incident ended in Petitioner’s arrest and two orders of protection against him, Petitioner’s premises residence license was suspended and then revoked by the License Division by Notice of Determination dated September 21, 2006. The letter stated that the revocation was based on the circumstances surrounding his January arrest which caused doubt about his ability to maintain good character and his failure to abide by the Rule and Regulations governing your firearm license. Petitioner was also advised that he had thirty days to request a hearing. 

After Petitioner’s case was adjourned and dismissed in June 2007, he submitted a new application for a premises residence license to the License Division in June of 2008. He answered yes to the question that asks if you’ve ever been arrested and provided the required letter of explanation, but then answered no to the question asking whether the applicant has ever had an order of protection against them. In July of that year Petitioner was interviewed by a License Division investigator, who recommended Petitioner’s application be disapproved due to the events involving his arrest for criminal possession of a weapon where Petitioner had his handgun outside his residence, on his person, and not locked in a lock case. 

Petitioner then attempted to appeal this determination, but was denied by the Director of the License Division. Then, on March 26, 2009 Petitioner commenced this Article 78 and argued that Respondent’s denial of a pistol license was arbitrary and capricious because the decision was based on a single arrest and ignored his otherwise stellar history and the determination also violated Petitioner’s rights under the Second Amendment of the Constitution. Petitioner’s challenge failed primarily due to Petitioner’s actions during the January 2006 incident display a lack of judgment that calls into question his fitness to possess a handgun license. There is a lot of power upon Respondent in regards to the issuance of pistol license in New York City, but his determination should not be overturned by a reviewing court in an Article 78 proceeding unless the decision is found to be arbitrary and capricious or an abuse of discretion which is why the petition was denied. 

Read full article here.

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Article 78 petitions should be less aggressive

After the medical examiner had deemed the death of his mother a suicide, George Infante file an Article 78. In this Article 78 petition he sought judgment that the medical examiner’s determination was unsupportable or arbitrary and that his mother’s death was unintentional or undetermined. The Supreme Court dismissed the petition because they did not consider the determination arbitrary. The decision was reversed in appellate court, but then again reversed by the Court of Appeals, who sided with the respondent. It is thought that if the Petitioner had simply requested further investigation of the proof against suicide instead of looking for another determination the Court would have been more inclined to support his side. For Article 78 petitioners, it is best to take the least aggressive position. 

Read full article here.

To read about 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.

Delhi bridge responsibility of town, not village

Supreme Court Justice Molly R. Fitzgerald has ruled that the Woolerton Street Bridge is the responsibility of the town of Delhi, not the village. This case began with an Article 78 filed by the village against the town. Article 78 in this case was used to compel the town to do what they are supposed to do in maintaining the bridge. David Merzif, representing the village cited a similar case involving a bridge in Chestnut Ridge which concluded that a bridge is a span that goes over a stream and the town is responsible for it unless the village voluntarily takes responsibility. Delhi Supervisor Peter Bracci said there will be a special meeting of the Delhi Town Board to discuss the decision and look into starting the appeals process. There is also more debate involving the length of bridge and how it could possibly affect its classification. Lois Ray, chairwoman of the bridge committee, said that the committee is attempting to have the bridge rebuilt to county specifications so that it will become a county bridge, relieving both the town and village of any maintenance responsibility. 

Read full article here.

To read about 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.

Nightclub's appeal against unfair liquor authority penalties granted

Café Concerto Ltd. v New York State Liquor Authority

In this Article 78 proceeding, petitioner appealed a determination of the New York State Liquor Authority which imposed a civil penalty for the violation of Alcoholic Beverage Control Law § 65(1) and State Liquor Authority Rule 54.2. In January of 2006, police officers responded to a complaint of underage drinking at petitioner’s premises. Four charges were brought against petitioner: allowing the sale of alcohol to an underage person, failure to exercise adequate supervision over the conduct of the business, permitting the premises to become disorderly, and allowing to premises to become disorderly by permitting an altercation to occur.

A hearing was held and the last two charges were dropped. The first two charges involving the sale of alcohol to minors were upheld because of the testimony of Officer Chowdhury. Officer Chowdhury testified that when he arrived at the premises he noticed a lot of individuals drinking at the bar who he believed to be underage. He pulled aside eight bar patrons to further question them. According to Officer Chowdhury, two of these individuals showed him identification indicating they were under 21. He sniffed their beverages and determined by smell that they contained alcohol. The other six individuals did not have identification and the Officer told them to leave because he believed them to be underage. Officer Chowdhury then issued six summonses to the bartender.

The ALJ determined that while there was no evidence to substantiate charges 3 and 4, they felt Officer Chowdhury’s testimony was credible and imposed a $7,000 civil penalty on petitioner. Petitioner then commenced this Article 78 appeal alleging that the penalty was “arbitrary, capricious, unreasonable, unsupported by substantial evidence, and not based upon a reasonable basis”. Petitioner argued that respondent failed to establish that alcoholic beverages were in fact sold to any individuals under 21. The Court agrees with petitioner. The burden of proof rests upon the State Liquor Authority (SLA) to prove the age of an alleged minor at the time of the violation. Since Officer Chowdhury did not make copies of the minor’s identifications there is nothing in the record to corroborate the dates of birth scribbled on the summonses. Also, there is inadequate proof that the beverages possessed by the eight individuals contained alcohol. Officer Chowdhury did not taste or field test any of the drinks. Additionally, Officer Chowdhury did not see any underage individuals being served by any bartender on the premises.

Accordingly, the Supreme Court granted the petition and annulled the determination, without costs.

To read about 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.

Police officer denied Accidental Disability Retirement Benefits for on the job injury

Matter of Paul A. Stymiloski v. Thomas DiNapoli, as Comptroller of the State of New York

This Article 78 proceeding was commenced to review a determination of respondent denying petitioner’s application for accidental disability retirement benefits. Petitioner, Paul Stymiloski, was a police officer in the Village of Ossining. In December of 2005, he was engaged in a routine patrol when he noticed a vehicle parked by a 24-hour pharmacy was on fire. He radioed for assistance and then, with the help of the car’s owner, pushed the car away from the store’s entrance to minimize the risk of the fire spreading. After the fire personnel arrived, petitioner and two fire fighters pushed the car even further away. In the process of doing this, petitioner slipped and fell on ice that formed from water the fire department had sprayed to put out the fire. Petitioner sustained a shoulder injury and filed for accidental disability and performance of duty retirement benefits. He was awarded the performance of duty benefits but denied the accidental disability retirement benefits. He then requested a redetermination but the Hearing Officer upheld the decision prompting this Article 78 appeal.

The Supreme Court agreed with the Hearing Officer’s determination. Since petitioner sustained his injury while performing “ordinary employment duties” as a result of “an unexpected or foreseeable event” it would not merit an award of benefits based on the accidental disability provision.

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

To read about 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.

Former police chief's termination appeal for cover up attempt is dismissed

Former Saranac Lake Police Chief Donald Perryman was involved in a cover up involving two police officers who were in a car accident on their way home from a training seminar. The officers admitted to drinking that afternoon. Perryman directed another officer to drive the two officers home, arranged to have the car towed from the scene of the accident and did not compel the officers to submit to alcohol testing. Perryman has been charged with 12 counts of misconduct. He filed an Article 78 appeal following his termination claiming that the hearing board’s decision was arbitrary and capricious. The state appeals court dismissed Perryman’s claim and upheld the ruling of the board.

Read full article here.

To read about 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.

School district directed to defend and idemnify teacher

 

Matter of James Cotter v Board of Education of Garden City Union Free School District Board of Education

Back in 2008, I wrote about a Nassau County Supreme Court Decision (J. Feinman) which held that the Garden City School District did not have to defend or indemnify a teacher involved in a fight with another teacher while they were grading Regent’s exams. (You can read that post here.)

The Second Department reversed the prior determination and ordered the school district to defend the teacher who was the target of a civil suit.

This Article 78 case was brought about to review the determination of respondent denying petitioner’s request to defend and indemnify himself in an action pending in Supreme Court. The Supreme Court originally denied the petition and dismissed the motion which resulted in this Article 78 appeal.

Petitioner was involved in a physical altercation with a fellow teacher while grading Regents examinations in the school library. Petitioner was in charge of a group of teachers and directed his co-worker, Philip McCarthy, to sit down and continue grading papers. McCarthy then threw water at petitioner and petitioner proceeded to place him in a head-lock. After this incident, McCarthy filed a civil action against petitioner to recover damages for the assault and respondent refused to defend and indemnify the petitioner.

The Court feels that it was unreasonable for the respondent to deny petitioner’s request due to the circumstances of the altercation. The incident occurred on school grounds while the petitioner and McCarthy were on duty grading exams and therefore could not be considered “wholly personal”.

Accordingly, the Supreme Court reversed the judgment, granted the petition, annulled the determination and directed respondent to defend and indemnity petitioner in the subject action.

Read full article 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.


 

Petition dismissed due to failure to exhaust administrative remedies

 

Matter of Ethan Mirenberg v Lynbrook Union Free School District Board of Education

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Lynbrook Union Free School District Board of Education which affirmed a determination of the Lynbrook School Superintendent accepting the recommendation of a hearing officer finding petitioner guilty of disciplinary charges. Petitioner filed an appeal with the Supreme Court which was denied on the ground that he failed to exhaust his administrative remedies prior to pursing action in the Supreme Court.

The petitioner did appeal the Board of Education’s decision to the Commissioner of the New York State Education Department but that appeal was not yet resolved when he filed his appeal in Supreme Court and thus he failed to exhaust an available administrative remedy. Additionally petitioner failed to establish that there was an applicable exception to the administrative remedies doctrine.

Accordingly, the Supreme Court dismissed the proceeding without prejudice and affirmed the judgment denying the petition.

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.

 

Civil Service Commission Appeal Guidelines

Any individual or entity who feels that they have been aggrieved by an action or decision of the President of the Civil Service Commission may file an appeal to the Commission.

The aggrieved party (“appellant”) should submit the appeal with all necessary supporting documents, in writing, according to the deadlines pertaining to the subject of the appeal. The appeal should include a copy of the final determination letter from the Commission as well as any documents and information supporting appellant’s appeal. If unsure of the statute or time restrictions on the appeal, appellants should file with the Commission within thirty days of receiving the written determination.

After receiving an appeal, the Commission will send out an Acknowledgment of Appeal and process the appeal internally. Once they have received all relevant information, the Commission will notify appellant that the appeal will be presented to the Commission. The Commission generally considers an appeal based on the papers submitted. The appellant may request to appear before the Commission to present their appeal and if the Commission agrees, they will inform appellant, in writing, of the date, time and place of the appeal.

The appellant may appear before the Commission with or without representation. If the appellant choices to appear with a representative, they will be provided the opportunity to present arguments in support of their positions. The proceedings are informal and formal rules of evidence do not apply. No oaths are administered and individuals are not subject to cross-examination. If the appellant or their representative fails to appear at the scheduled hearing, the appeal will be determined based on the appellant’s written submissions.

After all evidence and arguments have been presented, the Commission will deliberate and determine whether to grant or deny the appeal. All final decisions will be made in writing. The Commission will mail the appellant a copy of the final decision as well as posting it on the Commission’s public website.

Read the full guidelines 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.

CBA requires exhaustion of administrative remedies prior to filing Article 78 petition

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Matter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth Department

Dismissed from his position, Joseph J. Julicher filed a grievance in accordance with the grievance and arbitration procedure set out in the relevant the collective bargaining agreement between the Tonawanda and Julicher’s union. Before completing the grievance and arbitration procedure in which he challenged his termination by the Town, Julicher filed a petition pursuant to CPLR Article 78 in an effort to obtain a court order annulling his dismissal.

The Appellate Division said that Supreme Court’s granting Julicher’s petition was incorrect and unanimously reversed the lower court’s ruling and dismissed Julicher’s lawsuit.

The Appellate Division said that "[W]here[, as here], a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee's failure to grieve will constitute a failure to exhaust [administrative remedies], thereby precluding relief under CPLR Article 78."

Although Julicher commenced the grievance and arbitration procedure pursuant to the collective bargaining agreement, he failed to complete the procedure before commencing legal action and thus he failed to exhaust his administrative remedies.

N.B. In this instance, the grievant filed the petition seeking judicial relief pursuant to Article 78 of the CPLR. Presumably any challenge to an arbitrator’s determination, had the grievant not discontinued his or her participation in the grievance procedure, would have been brought pursuant to Article 75 of the CPLR.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03273.htm

Head of police not entitled to raise because the department was not unionized

Matter of Edward Paradiso v Joseph Loeffler

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Village of Ocean Beach denying his application for an increase in his annual compensation. Petitioner is the head of the Village of Ocean Beach Police Department (OBPD) and has one immediate subordinate. When his subordinate received an annual salary increase, petitioner requested the same but was denied. He then commenced an Article 78 proceeding to annul the determination denying his request. His appeal was based on General Municipal Mal 207-m(1) that states, in pertinent part, when the base salary of the permanent full-time police officer of a negotiating unit is increased, the salary of the head of police must also be increased by that same amount. The Supreme Court granted his petition.

The appellants appealed this decision by arguing that petitioner was not covered by GML 207-m(1) because it refers to a unionized police force and the OBPD is not unionized. Therefore, the petitioner was not within the coverage of this statute. The Court agreed with appellants that the salary of petitioner and petitioner’s subordinate would not be covered by a collective bargaining agreement.

Accordingly, the Supreme Court reversed the judgment, confirmed the determination, denied the petition and dismissed the proceeding on the merits.

Read full article 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.

Retired police officer denied accidental disability retirement in this Article 78 appeal

Patricia Lewis v New York City Police Department

Petitioner, Patricia Lewis, a retired New York City police detective, commenced this Article 78 appeal to annul the denial of her application for accidental disability retirement (ADR) and to direct respondents to retire her with a line of duty ADR allowance retroactive to the date of her ordinary service retirement. Petitioner worked for the NYPD from 1984 through 2004. Over the course of her service, she sustained multiple line of duty injuries. Among these injuries were injuries sustained while assisting at the World Trade Center site on September 11, 2001. In October 2002, petitioner filed an ADR application to the Medical Board stating that she could not perform her duties due to respiratory problems caused by her work at the World Trade Center.

The Medical Board first considered petitioner’s application in June 2003 and found that the evidence did not prove petitioner was disabled from performing the full duties of a NYC police officer. The Trustees reviewed this decision and upheld the decision to deny petitioner’s ADR. In May 2004, petitioner filed another application for ADR based on her issues with shortness of breath, burning lungs, and nose bleeds. Again, the Medical Board recommended disapproval of petitioner’s applications and the Trustees agreed. In August 2006, the Medical Board reviewed petitioner’s second ADR application for a second time and came to the same conclusion. After the fifth denial, petitioner commenced this Article 78 appeal.

To challenge a disability determination in an Article 78 appeal, the findings of the Medical Board will always be upheld unless it lacks a rational basis or is arbitrary and capricious. As long as the Medical Board can provide evidence to support its decision the Court cannot weigh the medical evidence or substitute their judgment. While the petitioner clearly suffered from some sort of respiratory impairment, as evidenced in the doctors’ reports she provided, the Medical Board’s finding that the impairment was not substantial enough to the level of a disability was supported by independent credible evidence and therefore the Court must defer to the expertise of the Medical Board.

Accordingly, the Supreme Court denied petition seeking to annul respondents’ determination to deny ADR and dismissed the proceeding.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

Article 78 appeal from termination and demand for name-clearing hearing denied

 

Mitchell Barandes v New York City Department of Education

Petitioner, Mitchell Barandes, brought about this Article 78 appeal to enjoin the New York City Department of Education from enforcing termination of petitioner, to declare that he had acquired tenure by estoppel, and to order a disciplinary hearing or a name-clearing hearing.

Petitioner’s argument that he had acquired tenure by estoppel was proved false because he had not earned sufficient credits as a substitute teacher to reduce his probationary period. Petitioner’s argument that respondents acted in an arbitrary and capricious manner was also unfounded because he failed to present any evidence to support this allegation. In fact, respondents noted that petitioner had been on notice that his teaching performance was unsatisfactory since December 2007. The decision to terminate petitioner was not in bad faith and was supported by three unsatisfactory observations and an incident of misconduct. Since petitioner was not a tenured employee he is warranted a disciplinary hearing. In regards to the demand for a name-clearing hearing, the materials contained in petitioner’s personnel file are not stigmatizing but instead describe instances of bad judgment or incompetent performance of duties.

Accordingly, the Supreme Court denied petitioner’s motion for an order enjoining respondent from enforcing its determination discontinuing petitioner’s probationary service, denied the petition and dismissed the proceeding.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

 

Self-represented research scientist loses Article 78 appeal due to procedural errors

Yan Ping Xu v New York City Department of Health

This Article 78 appeal was commenced by petitioner, Yan Ping Xu, to remove an unsatisfactory rating issued to her by respondent, New York City Department of Health, return her to her position and compensate her for back pay and money damages. Petitioner represented herself in this appeal and argued that respondent acted in an arbitrary and capricious manner. Respondents cross-move to dismiss the claim and petitioner cross-moves for permission to file a late notice of claim.

Petitioner worked as a City Research Scientist for New York City Department of Health and Mental Hygiene. She was terminated on March 13, 2008. Petitioner claims she had no warning that her work was unsatisfactory prior to her termination and feels that she was fired in retaliation for bringing to the attention of her supervisor incorrect figures used in a report.

Due to petitioner choosing self-representation, many procedural errors were made including the initial petition being served before it was filed, amended petitions never being filed with the court and no Notice of Claim being filed. Petitioner failed to follow proper procedure for challenging her termination. Prior to filing the Article 78 appeal in Supreme Court, she should have first appealed the performance evaluation with the appeals board and accordingly her petition is premature. Also, petitioner’s failure to file a timely notice of claim within 90 days of her termination date and the fact that she served her initial petition more than 90 days later indicates that the respondent knew nothing of her claim prior to the 90 day deadline.

Accordingly, the Supreme Court denied petitioner’s petition and cross-motion to file a late notice of claim and granted respondent’s cross-motion to dismiss petition.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

Teacher's Article 78 petition dismissed due to untimely appeal

Kifan Pak v New York City Department of Education

Petitioner, Kifan Pak, commenced this Article 78 proceeding to review the decision of respondent, New York City Department of Education, terminating him as a probationary teacher. Petitioner pursued an administrative appeal which resulted in the decision of termination being upheld. He then brought about this Article 78 appeal in Supreme Court. Respondents cross-moved to dismiss the petition arguing that it was time barred and the statute of limitations had expired.

Petitioner was informed of his termination by letter dated February 21, 2007. Petitioner immediately pursued an administrative appeal and received the determination to sustain the recommendation of termination by letter dated September 11, 2007. Petitioner then commenced the Article 78 appeal to vacate the decision on January 15, 2008. CPLR Section 217 states that an Article 78 proceeding to challenge an administrative decision must be commenced within four months after the determination becomes final. The internal administrative review did not extend petitioner’s limitation period because it is merely a procedural contractual right and not a constitutional or statutory right.

Accordingly, the Supreme Court granted respondent’s cross-motion to dismiss the petition as time-barred and dismissed the petition.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

Technician's Article 78 appeal is dismissed and his termination confirmed

Matter of Roth v Manhasset Union Free School District

Petitioner, Jeffrey S. Roth, commenced this Article 78 proceeding to review a determination of the Manhasset Union Free School District finding petitioner guilty of misconduct and incompetence and terminating his employment. The Supreme Court denied the petitioner and dismissed the proceeding to which petitioner appealed. Due to the fact that the petition raised a substantial evidence question, the Supreme Court should have transferred the proceeding to the Court and thus the Court treated the proceeding as if it had been properly transferred and reviewed the proceeding de novo.

Petitioner was an audio-visual technician for respondent. The School District charged him with numerous acts of misconduct including physically threatening other employees and making inappropriate sexual comments to students among other things. A hearing found petitioner guilty of 14 of the 16 charges against him. The determination under review was supported by substantial evidence and it is the function of the administrative agency or Hearing Officer and not the reviewing court to weigh the evidence. Also, the penalty of termination was not shocking to the judicial conscience.

Accordingly, the Supreme Court dismissed the appeal, vacated the judgment, confirmed the determination, denied the petition, dismissed the proceeding and awarded one bill of costs to the respondent.

Read full article here.

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

Current and former Manlius village officials file Article 78 to restore health insurance benefits

Three current or former Manlius village elected officials and their wives are fighting back against the village board who voted to make the officials pay more for their insurance. The purpose of this decision was to save taxpayers money but the affected officials are upset because they were promised insurance benefits and did not budget having to cover up to 60% of their insurance costs. In 1992, the board voted to offer insurance to elected officials who retired after 10 years of service. The village would pay 50% of the cost after 10 years and after 25 years would pick up the entire cost. In 1993, the board voted to end this program to cut costs but those who were already in were allowed to remain. The three officials pursuing this Article 78 appeal have agreed to pay more towards their coverage but cannot afford 60%. They feel betrayed by the village they served and are only seeking that which was promised to them.

Read full article 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.

Decision to reinstate retired police officer was not rational

 

Matter of Michael A. Ciacciullo v. Police Commissioner of the City of New York

The decision for this Article 78 case was rendered in 2006. In 1992, petitioner was placed on ordinary disability retirement as a New York City Housing Authority police officer due to a psychological condition related to job stress. In 1998, petitioner sought reinstatement with the New York City Police Department (NYPD). Petitioner did not work while on retirement. In 1999, the New York City Employee Retirement Systems medical board determined petitioner was no longer disabled and referred him to the Department of Citywide Administrative Services (DCAS) for reinstatement.

According to the regular NYPD screening process, petitioner was referred to a psychologist for evaluation. The psychologist found petitioner to be unfit for the position of police officer due to continued issues with stress tolerance and the possibility of a relapse of his disabling psychiatric symptoms. Petitioner was notified of his psychological disqualification in December 2000. He then appealed the decision to the New York City Civil Service Commission. Prior to the hearing, petitioner underwent a second psychological examination with the same conclusion of psychologically unfit.

At the hearing, the Civil Service Commission reversed the NYPD’s unfitness determination and ordered petitioner reinstated with the reasoning that the evidence did not indicate petitioner suffered from any psychological disorders. Petitioner then commenced this Article 78 proceeding to compel his reinstatement while DCAS filed a cross-petition to annul the Commission’s decision.

The Supreme Court transferred the petitions to the Appellate Division which unanimously annulled the Civil Service Commission’s determination concluding that the Commission applied the wrong standard of review and erroneously failed to grant deference to the NYPD’s determination. The matter at issue was whether the Commission’s reinstatement determination was rational and while there may not have been evidence that petitioner was psychologically disabled there also was no evidence that, given his background and decade long lack of employment, petitioner was fit for the stress of police work. DCAS provided medical evidence of petitioner’s future unfitness while petitioner failure to offer proof future fitness.

Accordingly, the Supreme Court affirmed the judgment of the Appellate Division, with costs.

 

To read further on this topic go to http://www.sheerinlaw.com/?id=78.

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

 

 

Article 78 termination appeal granted for NYC teacher

Matter of Norgrove v. Board of Education of the City School District of NYC

This Article 78 proceeding was brought about by petitioner, a tenured mathematics teacher of 28 years, to annul determination of respondents, Board of Education of the City School District of New York, terminating his employment. Petitioner is also seeking retroactive reinstatement with full back salary.

In December 2006, the Board of Education advised petitioner via hand-delivered letters that a serious allegation was made against him and that he was reassigned to Region 8 Human Resources. In May 2007, petitioner received another hand-delivered letter entitled “Notice of Charges” (“First Notice”) informing him of the nature of the complaint being filed against him. The Board of Education also sent this letter via certified and regular mail addressed to petitioner. According to petitioner, the address respondents used was old and he moved in 2003. Later that month the Board of Education mailed petitioner a Second Notice at the address they had on file. In the Second Notice respondents advised petitioner that he had 10 days to request a hearing. Petitioner asserts that he never received this notice since it was not sent to his correct address and therefore he was unable to submit a timely request for hearing.

In October 2007, the Chairperson of the Panel for Education Policy wrote a letter to petitioner detailing the events occurring since the charges in May, the Panel’s findings and indicating petitioners’ termination. Petitioner was then hand-delivered a letter stating he had been terminated. Petitioner immediately informed his union representative who contacted the Board of Education to request a hearing but the request was denied. Petitioner then filed a Notice of Claim in January 2008 and commenced the instant Article 78 proceeding in February 2008.

Petitioner argues that since he did not receive the notice regarding his right to a hearing, the Board of Education’s termination of his employment without the due process hearing deprived him of property rights in his tenured position and was arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of his rights. The Court agrees because the Board of Education had an obligation to take additional steps to effect notice after the certified mail to petitioner was returned unclaimed.

Accordingly, the Supreme Court granted the petition, annulled respondents’ determination terminating petitioner’s employment, and ordered respondents to reinstate petitioner with full salary and benefits retroactive to November 26, 2007.

Read full article here.

Utica willing to file an Article 78 to continue operating its ambulance service

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.

 

Article 78 proceeding to prevent Wal-Mart Supercenter in Greece, New York

 The Northgate Plaza has fallen to disrepair. Once a home to big name stores such as J.C. Penny and Woolworth’s, this shopping plaza in Greece, New York’s biggest draws are now a Hallmark Store, a Citizen’s Bank, and a Big Lots. Northgate’s owners have looked to Wal-Mart to bring the shopping center back to life and Wal-Mart has agreed to build a “supercenter” in the plaza. This construction would require much of the existing plaza to be knocked down and a handful of small businesses to be evicted. Some local residents are not happy with these plans and have formed Residents Against Wal-Mart (RAW). They insist that Wal-Mart will erode the character of their neighborhood.

The Greece Town Planning and Zoning Board approved the plans to build the new Wal-Mart and the Zoning Board of Appeals followed suite. In retaliation, RAW has filed an Article 78 proceeding in Supreme Court. Since ZBAs do not have the authority to review zoning regulations and Northgate Plaza is zoned for the commercial use that Wal-Mart would fall under that category, RAW has the difficult task of appealing the ZBAs interpretation of existing zoning laws. The only way to do this would be to prove that “commercial use” under the existing law would be violated by the presence of a Wal-Mart Supercenter.

Therefore, RAW only has two routes to impose its will on the Northgate Plaza to keep out the new Wal-Mart and they have already failed at the more effective option. Their best chance would have been to elect anti- Wal-Mart town board members who would have appointed anti- Wal-Mart planning board and ZBA members. The last option would be to use their position as property owners as a source of authority whose rights to reasonable use of their property would be adversely affected by the presence of Wal-Mart.

Read full article here.

 

Neighbors file Article 78 against a structure they feel will negatively impact historic aesthetic

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.

Article 78 appeal involving a special use permit to construct a 750,000-square-foot shopping mall

Matter of Oyster Bay Associated Limited Partnership v Town Board of Town of Oyster Bay

This Article 78 appeal was commenced to review a determination of the Town Board of the Town of Oyster Bay denying petitioner’s application for a special use permit. The Supreme Court reversed the Town Board’s order and granted petitioners’ motion directing the issuance of a building permit and petitioners’ motion to compel the Town Board to adopt the findings made by the Town Environmental Quality Review Commission in 2000.  The original findings of the TEQR Commission were favorable to petitioners but then the Town Board instructed the Commission to revise its initial findings.

This is the third appeal in the litigation involving the proposed construction of a 750,000 square foot shopping mall in Syosset, arising from petitioners’ applications to the Town Board for a special use permit and site plan approval. The petitioners commenced this Article 78 hearing to annul the Town Board’s determination as arbitrary, capricious, and not supported by evidence in record. The Supreme Court vacated the Town Board’s denial of petitioners’ application in 2002. In 2003, the Supreme Court granted petitioners’ motion for judgment and then reversed the order in 2005 finding that the decision did not mandate the issuance of a special use permit. In 2007, the Supreme Court denied petitioners’ motion to compel the Town Board to issue a special use permit for an 860,000-foot-shopping mall. In an attempt at resolution, the Town Board determined it would consider petitioners’ mitigation proposal for a 750,000-square-foot shopping mall. The petitioners then moved to compel the Town Board to adopt the original TEQR Commission’s findings from 2000, issue a special use permit, and process and review petitioners’ proposed site plan. In 2008, Supreme Court granted petitioners’ motion.

 The Town Board then appealed and the Court reversed the order saying that the Court erred in determining the Town Board’s request that petitioners prepare an SEIS was arbitrary and capricious. The request was proper and to direct the Town Board to process and review the site plan with all due haste deprived them of the right to meaningfully consider a revised site plan for the 750,000-square-foot-shopping mall.

Accordingly, the Supreme Court reversed the order as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs and denied petitioners’ motion.

Read article here.

Article 78 appeal from NYPD medical disqualification for hearing impairment

Matter of Antonio Cardona v City of New York Civil Service Commission

Petitioner, Antonio Cardona, brought about this Article 78 proceeding to vacate his disqualification for appointment as a Police Officer with the New York City Police Department (NYPD).

Petitioner passed the written portion of the exam and was placed on the eligible list for a position as a police officer but then failed three pure tonal hearing tests and was subsequently disqualified. Petitioner filed an appeal and submitted two medical reports. Both doctors stated that they did not feel that Mr. Cardona’s mild hearing loss in his left ear would interfere with his ability to perform the duties of a police officer. The Civil Service Commission reviewed this case and affirmed the NYPD’s decision to disqualify Petitioner. Petitioner then filed this Article 78 appeal to review the determination.

Petitioner argued that the pure tonal hearing test administered by the NYPD was not rationally related to the duties of a police officer and that his disqualification violated New York Executive Law § 296, prohibiting discrimination against an applicant based on a disability.

The Court disagreed with Mr. Cardona’s first argument and felt that the use of a pure tonal test was related to police officer functions in that is serves to set a hearing standard for applicants. In response to Petitioner’s accusations of discrimination, the Court agreed. Since Petitioner did have a disability under Executive Law § 296, the NYPD needed to prove that his hearing loss would prevent him from performing in a reasonable matter. NYPD would need to conduct an individualized test and since they merely relied on the results of three pure tonal hearing tests, they only proved Petitioner suffered from a hearing disability, not that he was unable to perform the duties of a police officer. Plus the reports from Petitioner’s two doctors and seven affidavits from current and retired NYPD officers all stated that he would be an effective Police Officer.

Accordingly, the Supreme Court granted petition and remanded this matter to the New York City Police Department to make an “individualized” determination consistent with Executive Law § 296.

Read article here.

Article 78 appeal against Local Law No. 1534 (2006) of Suffolk County results in modifications of said law

Matter of MHC Greenwood Village NY, LLV v County of Suffolk

In this Article 78 case, Petitioner appealed from an order of the Supreme Court declaring Local Law No. 1534 (2006) of Suffolk County valid in all respects. Petitioner, MHC Greenwood Village NY, LLC, owns and operates a retirement community in Suffolk County. Residents of Greenwood Village own their homes, lease the land, and pay a “Base Residency Charge” which is a monthly fee for the lease of the land.

Several residents attended a public hearing and voiced concerns that a significant portion of the common areas of Greenwood Village were in disrepair. Also, residents were having issues selling their homes because petitioner was raising the Base Residency Charge for the new homeowner. In response to these complaints, Suffolk County Legislature passed Local Law No. 1534 (2006) with the goal of regulating the operations of planned retirement communities by protecting the community residents.

Petitioner then commenced an Article 78 appeal contending that the Local Law was invalid because it violated the Equal Protection Clause of the Constitution, the County Legislature exceeded its power and the Local Law was preempted by State and Federal legislation. The Supreme Court ruled against petitioner and declared the Local Law valid. Petitioner subsequently brought about this Article 78 appeal.

The Supreme Court agreed with the Court’s determinations that the Local Law did not violate the Equal Protection Clause, and that it was not preempted by State or Federal legislation but found that several portions of the law should have been declared invalid because the County Legislature did not have the authority to enact those portions of the Local Law.

Accordingly, the Court modified the order by deleting the provision declaring valid Section 3(A), Section 4(F), Section 7(A), Section 7(C), Section 12(A), and Section 12(B) and affirmed the order as modified without costs or disbursements.

Read article here.

Hudson Square hires ad firm to help fight proposed megagarage

 

The Bloomberg administration has proposed a $500 million three-district Department of Sanitation garage for Hudson Square. Community leaders recently enlisted the help of advertising and marketing firm Saatchi & Saatchi to help them convince the Bloomberg administration to accept a smaller community alternative. This alternative, the Hudson Rise plan, would accommodate a two-district Sanitation garage, create rooftop green space and cost $200,000,000 less than the Department of Sanitation project. The Sanitation project was granted approval from the City Counsel last November but Bloomberg agreed to hold off on construction for six months to allow the community time to suggest alternatives.

If the megagarage project is chosen over the smaller Hudson Rise plan, project opponents plan to challenge the Sanitation Department in court by filing an Article 78 appeal.

Read article here.

 

Town of Carroll wins landfill appeal

The Town of Carroll has been fighting against the expansion of the Jones-Carroll Landfill for years. In 1989, the landfill was opened as a construction and demolition landfill. In 1996, the owners of the Jones-Carroll Landfill were granted a permit for further expansion of the landfill from 2 acres to 3 acres. When the town heard that Sealand Waste of Rush, NY was planning to purchase the landfill and expand it to encompass the entire 49.5 acre property, residents began active opposition.

When the town discovered that Sealand Waste intended to turn the 50 acres of land into a non-putrescible landfill and accept asbestos, oil-contaminated soil, and medical wastes, the opposition became more vocal. The town board unanimously passed an amendment to the town’s zoning laws eliminating landfills from operating by special-use permit and allowing no further expansion of landfills.

Jones-Carroll’s attorneys then commenced an Article 78 appeal to the Supreme Court. The Court ruled in favor of the landfill which resulted in an appeal of the Article 78 decision by the town’s attorney. After five years of town board meetings and active opposition, the Appellate Division ruled against the Supreme Court’s decision and declared the local law reasonable and rational.

Read article here.

Opponents of the Trump Soho hotel plan to keep fighting

The Supreme Court dismissed the Soho Alliance’s appeal challenging the city’s approval of the Trump Soho condominium-hotel. The Court agreed with the Board of Standards and Appeals’ decision to uphold the Department of Buildings permit for the hotel. The not yet completed building is 449 feet and between 43 and 46 stories tall. The Soho Alliance plans to take their case to the Appellate Division charging that the project is overbuilt by several thousand square feet.

Read article here.

City Council agrees on Saratoga recreation center defense fund

The Saratoga Springs City Council decided they were willing to spend up to $20,000 to defend itself against a lawsuit alleging the violation of multiple laws with the approval of a 33,000-square-foot recreation center. Fourteen members of The Friends of South Side Park filed a motion in Supreme Court alleging that the City Council and Planning Board violated the state Environmental Quality Review Act, city zoning code and City Charter by approving the indoor recreation center. Plaintiffs want the project stopped and since the city has no insurance coverage for Article 78 suits they are forced to pay out of pocket for the legal defense.

Read article here.

DA's office must be given chance to serve an answer regarding FOIL request

Matter of Dennis Timmons v Michael C. Green, Monroe County District Attorney

Petitioner commenced this Article 78 proceeding to compel respondent to provide documents sought pursuant to the Freedom of Information Law (FOIL). Respondent then made a motion to dismiss the petition which the Supreme Court denied. Respondent argued that petitioner incorrectly sent his FOIL requests to the Monroe County District Attorney’s Office. Even though the official FOIL representative for Monroe County may be the Department of Communications, the DA’s office is still an agency that is subject to FOIL and therefore has the burden of responding to FOIL requests. The Court also rejected respondent’s argument that the petitioner failed to exhaust all administrative remedies and that the proceeding is untimely. Petitioner did, in fact, commence the proceeding within four months of the denied FOIL requests. However, the Court agreed with respondent’s contention that the court erred in granting the petition without first allowing respondent the opportunity to serve and file an answer.

Accordingly, the Court modified the judgment vacating those parts granting the petition and granted responded 20 days to serve and file an answer.

Remedy of mandamus is inappropriate in this Article 78 appeal

U.A. Plumbers and Steamfitters, Local No. 22 v City of Niagara Falls

Petitioner commenced an Article 78 appeal to compel respondents to determine whether a plumbing company was violating provisions of the Plumbing Code of respondent City of Niagara Falls. The City then moved for dismissal of the petition. The Court denied the motion and granted petition, mandating respondents conduct a public hearing on the matters included in the petition. Respondents then commenced this appeal.

The remedy of mandamus can only be used as a remedy when a clear right to the relief sought exists. Since the petitioner failed to cite any statute, rule, regulation or case law requiring respondents to investigate petitioner’s allegations, no right to the relief sought was established.

Accordingly, the Court reversed the judgment, without costs, granted the motion and dismissed the petition.

Article 78 to annul preliminary subdivision approval granted

 

Kittredge v. Planning Board of the Town of Liberty

Petitioners brought about this proceeding to appeal a judgment of the Supreme Court dismissing petitioners’ Article 78 appeal to review determinations of respondent Planning Board of the Town of Liberty issuing a negative declaration of environmental significance and granting the application of respondent CR Menderis, LLC for preliminary subdivision approval.

In May of 2006, CR Menderis, LLC (Menderis) submitted an application for approval to subdivide a 143.2-acre plat into 27 lots for single family homes to the Planning Board of the Town of Liberty (the Board). When a public hearing was held, numerous surrounding landowners expressed concerns regarding the proposed development’s impact on the surrounding environment. The Board then required Menderis to conduct studies to address the raised environmental concerns. After receiving the results of the studies, the Board issued a negative declaration of environmental significance and granted preliminary subdivision approval to Menderis.

Petitioners then commenced an Article 78 appeal to annul the decision arguing that the negative declaration violated the State Environmental Quality Review Act (SEQRA) and the subdivision approval violated Town laws and codes. The Supreme Court upheld the Board’s decisions which resulted in this appeal.

The Court agrees with petitioners’ contention that the Board did not closely investigate every aspect of potential environmental impact from the project. While the Board’s studies involving wetlands and storm water impact fulfilled its obligations to take the requisite hard look, the studies concerning the presence of endangered or threatened species were inadequate. The Board based its decision on two letters from the Department of Environmental Conservation that merely stated that their databases showed no record of endangered species in the area but the absence of records would not definitively establish that such species do not exist. Therefore, the Board’s determination that there would be no significant impact on wildlife was arbitrary and capricious.

Additionally, the Court agrees with petitioners’ contention that the Board improperly failed to hold a public hearing regarding the proposed subdivision following its issuance of a negative declaration.

Accordingly, the Court reversed the judgment, without costs.

 

Police officer's termination for insubordination upheld

Matter of Jason Longton Jr. v. Village of Corinth

Petitioner Jason Longton Jr. brought about this Article 78 proceeding to review the determination of the Village of Corinth Board of Trustees terminating his employment as a police officer. Petitioner began working as a police officer in 2003. In 2004, he was charged with violating multiple department rules and suspended. The most serious charge was insubordination involving his investigation of an individual after receiving a direct order by the Chief of Police not to do so. Following a hearing, petitioner’s employment was terminated but the determination was later annulled due to an issue with improper stenographic transcription. A second hearing resulted in a recommendation for termination which the Board of Trustees enforced. Petitioner then commenced this appeal.

In August 2004, petitioner quarreled with a restaurateur, Trevor Downie, during a traffic stop. Downie complaints about petitioner’s conduct were then forwarded to the Chief of Police. Petitioner then confronted Downie at his restaurant resulting in Downie threatening a lawsuit against the Village of Corinth. Further altercations between petitioner and Downie led to the Chief of Police ordering petitioner to stop any investigation or contact with Downie. Petitioner ignored the orders and continued investigating Downie secretly.

Petitioner argued that the penalty of termination was excessive. The Court feels that petitioner, being an employee of short duration, deliberately disobeying the orders of the Chief of Police constitutes conduct at odds with the strict discipline necessary to perform the duties of a police officer and therefore the penalty was not shocking.

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

Article 78 to fight issuance of accessory apartment variance denied

Matter of Shelter Island Association v Zoning Board of Appeals of Town of Shelter Island

This Article 78 appeal was brought about to challenge the decision of the Zoning Board of Appeals of the Town of Shelter Island granting respondent John Meister’s application for an accessory apartment variance. Supreme Court denied petitioners’ motion for leave to amend the petition to add additional petitions and granted respondents’ motion to dismiss the proceeding. Petitioners then commenced this appeal.

The originally named petitioners include three individuals and a homeowner association. The Court feels that they lack standing to commence an instant proceeding because they were unable to establish that any of the individual petitioners or members of the association would suffer any environmental injury different from what would affect the public at large. The petitioners made a cross-motion to amend the petition and add petitioners who met the criteria for standing but the Court found that even with the added petitioners their allegations of increased traffic and the effect on the water table from additional tenants would be insufficient to establish such standing.

Accordingly, the Court affirmed the judgment, with costs.

Read the full article here.

Nassau County Civil Service Commission must produce written protocol showing why candidate was psychologically disqualified from position of police officer

Matter of McElligott v Nassau County Civil Service Commission

Petitioner, Maurice McElligott, brought about this Article 78 proceeding to review the determination of the Nassau County Civil Service Commission psychologically disqualifying him from probationary employment as a police officer. The Supreme Court ruled in favor of petitioner, ordering Nassau County Civil Service Commission to produce the written protocol used to determine passage or non-passage of petitioner’s MMPI-2 test. The Commission then appealed this decision.

In 2003, petitioner applied to the Nassau County Civil Service Commission (the Commission) for a position as a Nassau County police officer. He passed the written exam and other tests but was required to schedule an appointment for a psychological interview following his completion of the Minnesota Multiphasic Personality Inventory II (MMPI-2). After completing the psychological interview, petitioner was then directed to make an appointment with a psychiatrist. Petitioner was then informed that he failed to meet the psychological requirements of the position and therefore was psychologically disqualified. Petitioner submitted two independent psychological evaluations and numerous personal recommendations and requested the Commission reconsider his disqualification. The Commission reaffirmed its determination and petitioner commenced this Article 78 appeal finding the disqualification arbitrary and capricious and based upon a subjective reaction to his personality rather than based on any objective criteria.

The Commission explained in its answer that the first stage of the psychological screening process includes a group administration of the MMPI-2. Applicants that fall within the accepted range are not subjected to further psychological testing while applicants with scores outside the normal range must complete an in-person interview with a clinical psychologist. According to his affidavit, the psychologist who completed petitioner’s interview said that contrary to the claims of the Commission, all candidates’ MMPI-2 results are reviewed by a psychologist and then interviewed. The Court found the statements by the Commission and the staff psychologist to be in opposition and directed the Commission to produce the actual protocol used to determine whether petitioner’s scores were within the normal MMPI-2 range.

The Commission argued that the courts order constituted an attempt to interfere with its discretion to determine the qualifications of police officers. The Court disagrees and feels that the evidence demanded, the written protocol for determining whether a given candidate’s MMPI-2 score fell outside of a pre-determined normal range triggering the need for an in-person psychological evaluation, was relevant.

Accordingly, the Court affirmed the decision, without costs or disbursements.

Read the full article here.

Article 78 appeal to vacate penalty of housing termination granted

Matter of Vazquez v New York City Housing Authority

Petitioner, Anita Vazquez, commenced this Article 78 appeal against the New York City Housing Authority (NYCHA) to review the determination terminating her public housing tenancy on the ground of nondesirability. Petitioner was charged with chronic rent delinquency and later non-desirability based on charges of unauthorized use of an ATM card. The decision to termination petitioner’s tenancy was in response to her guilty plea to this felony offense.

The penalty imposed on petitioner was disproportionate to the offense considering that petitioner is current in all rent due, has a source of income from SSI and public assistance, and has paid full restitution to the complaining witness and complied with the conditions of her probation. Additionally, petitioner has no prior criminal record and her criminal conduct was an isolated occurrence. Terminating petitioner’s tenancy considering her specific circumstances is shocking to the judicial conscience and sense of fairness.

Accordingly, the Court vacated the penalty of termination and remanded respondent for imposition of a lesser penalty.

Read article here.

Syracuse Basketball star may have to resort to Article 78 to get reinstated

Eric Devendorf, a star shooting guard for the Syracuse University Orangemen basketball team may have to file an Article 78 petition to get a one semester suspension overturned.  Devendorf was found to have violated the Syracuse University Student Code when he hit a female student after a traffic incident.  Members of the basketball team were leaving a campus party when they came upon a car driven by Kimberly Smith another student.  Ms. Smith said Mr. Devendorf struck her in the jaw. 

William Sullivan, Devendorf's attorney, said that his client would file an appeal of his one semester suspension on 12/17/08.  If the appeal is not granted Mr. Sullivan said that he would file an Article 78 petition and seek a stay of the suspension during the course of the Article 78 in the hopes Mr. Devendorf continue to play ball until the case is resolved.  Click here for details.

Article 78 appeal to gain succession right to public housing denied

Matter of Anthony Jackson v New York City Housing Authority

Petitioner, Anthony Jackson, commenced this Article 78 appeal against the New York City Housing Authority (NYCHA) to gain succession rights to the public housing apartment formerly leased to his deceased mother.

Petitioner argues that the decision was arbitrary and capricious because the building manager failed to act on his mother’s request to add him to the lease in 1993. He also contends that the NYCHA knew about and implicitly approved his residency when they took no preventative action against him. NYCHA opposes with the argument that even if the Management Office had considered Ms. Jackson’s permission request, Petitioner would still have been found ineligible for occupancy because he did not reside in the apartment for at least one year prior to his mother’s death. Additionally, NYCHA explains that Petitioner was deemed ineligible for public housing due to prior violent criminal convictions.

Since the rules and regulations concerning succession rights support the agency’s determination that Petitioner was ineligible for public housing because of his criminal record and the decision of the NYCHA was neither arbitrary nor capricious, the Court must uphold the decision.

Accordingly, the Court denied and dismissed the petition.

Town of Stony Point trying to dismiss lawsuit against ShopRite strip mall

A group of residents in Stony Point are not happy about the proposed construction of a ShopRite supermarket and strip mall on Key Fries Drive. They filed an Article 78 proceeding with the Supreme Court to appeal the special permit granted by the Town Board to the developer.

The residents argue that the town wrongly interpreted its code on the light industrial district, overriding the county Planning Department’s disapproval by the Town Board’s supermajority. Also, they are concerned over the possibility of worsened traffic conditions.

The defendants then filed a motion to dismiss because the petitioners did not name the property owner as a party of the lawsuit nor did they exhaust their administrative remedies available to them before going to the Supreme Court when they felt the town’s actions were inappropriate. They could have first voiced their complaints with the Zoning Board of Appeals.

According to the plaintiffs, the town’s response is based on procedural issues instead of focusing on the environmental and legal issues that the residents want the court to consider.

Read article here.

Building permit and variance granted due to petitioner's lack of noneconomic concerns

Matter of Tappan Cleaners v Zoning Board of Appeals of Village of Irvington

An Article 78 appeal was commenced to review a determination of the Zoning Board of Appeals of Irvington (ZBA) upholding the issuance of a building permit and granting application of 53 Main Realty, LLC a variance to use combustible solvents in its laundry business. The Supreme Court granted the petition and annulled the determination of the ZBA leading to this Article 78 appeal.

When reviewing the initial ruling of the Supreme Court, the Court found that they erroneously determined that the petitioner had standing to challenge the determination of the ZBA because the petition failed to allege any clear noneconomic concerns. Instead, petitioner’s challenge was hinged on a fear of increased business competition. This type of interest is not protected by relevant zoning regulations. Though Petitioner claimed the building permit and variance would cause potential safety issues and reduce neighboring property value, these claims were conclusory and speculative and not sufficient to establish standing.

Accordingly, the Court reversed the judgment, with one bill of costs, confirmed the determination, denied the petition, and dismissed the proceeding.

Matter of Tappan Cleaners v Zoning Bd. of Appeals of Vil. of Irvington (2008 NY Slip Op 09806)

Police detective denied performance of duty and ordinary disability retirement benefits

 

Matter of Timothy Kennedy v New York State and Local Police and Fire Retirement System

Petitioner Timothy Kennedy filed this Article 78 appeal to review the determination of the Comptroller denying his applications for performance of duty and ordinary disability retirement benefits. In 2000, after working as a police detective for 12 years, petitioner suffered from various heart, gastrointestinal and psychological problems causing him to stop working. Petitioner then filed applications for ordinary disability retirement benefits and performance of duty disability retirement benefits. His applications were denied and then at the hearing, the Hearing Officer concluded petitioner was not entitled to either benefits because he was not permanently incapacitated from performing his duties. Petitioner then filed this Article 78 appeal.

The Comptroller is allowed to determine which opinion to credit in the case of conflicting medical opinions by different medical experts. In this case, conflicting opinions existed regarding whether petitioner’s psychological problems and irritable bowel syndrome prevented him from performing his duties as a police detective. Since one medical expert provided evidence that petitioner did not suffer from permanent incapacitation due to his afflictions, the Comptroller has sufficient evidence to support his decision.

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

 

Hearsay evidence not enough to support suspension of bar's liquor license

Matter of McGillicuddy’s Tap House, Ltd. v New York State Liquor Authority

This Article 78 proceeding was brought about to review a determination of the New York State Liquor Authority finding petitioner McGillicuddy’s Tap House in violation of the Alcoholic Beverage Control Law. Petitioner was charged with permitting a licensed premises to become disorderly following an altercation that occurred in petitioner’s bar. Respondent suspended petitioner’s liquor license for 15 days and imposed a fine of $6,500 which resulted in this Article 78 appeal seeking to annul the determination.

The evidence supporting respondent’s claim that petitioner did not take proper action or allowed the altercation to continue was hearsay and seriously controverted by the testimony of petitioner’s head bouncer, Joseph Santiago. One witness, Marshall Ross, claimed that two altercations occurred and that the individuals involved in the first altercation returned to the bar after being thrown out and resumed the altercation. Ross did not testify at the administrative hearing and therefore was not available for cross-examination. The head bouncer, Santiago, was only aware of one altercation which he responded to promptly by ejecting one group involved and immediately calling the police. The police corroborated this story and vouched for Santiago’s reputation.

Since the only evidence provided by respondent was hearsay and this evidence was seriously controverted by the sworn testimony given on petitioner’s behalf which was subject to cross-examination, the hearsay evidence was not substantial to support respondent’s determination. Without Ross’ testimony, no evidence exists to prove that petitioner was aware of and ignored escalating arguments between patrons or allowed a fight to continue for a long period of time prior to calling the police. Additionally, still photographs taken from a videotape of the bar supports Santiago’s story that the altercation was isolated and brief and not foreseeable.

Accordingly, the Court annulled the determination, without costs, and granted the petition.

Article 78 petition to stay variance permit denied

Matter of Kennedy v Zoning Board of Appeals of Village of Patchogue

Petitioner brought about this Article 78 to review the judgment of the Supreme Court denying petition to review a determination of the Zoning Board of Appeals of the Village of Patchogue (ZBA).

Respondent, Chris Peppard, was granted a frontage variance by the ZBA to construct a single-family dwelling. The variance required him to have “substantially commenced” the construction within one year after the variance was granted. Petitioner, Peppard’s neighbor, requested the ZBA to stay further issuance of permit renewal because the previously granted variance expired. The ZBA determined that Peppard had in fact complied with the zoning code provision because he obtained a building permit within one year after the variance was granted.

Petitioner then commenced an Article 78 proceeding to review the ZBA’s decision which the Supreme Court denied. Petitioner then appealed the Court’s ruling in this proceeding. The Court recognizes that a zoning ordinance allows for interpretation of its requirements by a board of appeals and that unless unreasonable or irrational, the ZBA has authority to interpret requirements as they see fit.

Accordingly, the Court affirmed the judgment, with costs.

Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Patchogue (2008 NY Slip Op 09601)

PBA of City of Long Beach's grievances recognized

Patrolemen’s Benevolent Association of City of Long Beach, Inc. v City of Long Beach

The City of Long Beach appealed from a decision of the Supreme Court ruling in favor of plaintiff, Patrolemen’s Benevolent Association of the City of Long Beach, Inc. (PBA), converting the matter from an Article 78 to an action, granting the motion for summary judgment directing specific performances of stipulations and agreements, and declaring these stipulations and agreements legally binding and enforceable.

The stipulations and agreements concerned three grievances by the PBA regarding sick leave retirement computations, night differential pay calculations, and a disciplinary action brought against 17 of its members. After converting this matter from an Article 78 to an action, the Supreme Court declared the stipulations and agreements legally binding and enforceable between the parties. The City of Long Beach then commenced this appeal.

The Court found that City’s arguments that the stipulations and agreements required approval by the City Counsel to bind the parties to be without merit.

Accordingly, the Court dismissed the appeals from the orders, affirmed the judgment, and awarded plaintiff with one bill of costs.

Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach (2008 NY Slip Op 09573)

Article 78 petition against Saratoga Springs' mansion assessment

A public records expert, hired by the owner of Saratoga Springs’ largest home, filed a lawsuit against the city for not providing him with requested records concerning the mansion’s assessment. The mansion owner’s lawyer, Mark Glaser, requested information about the assessment of the home, filing a Freedom of Information Law request to find out how much the city spent to assess the property. While the city provided access to some records, they were not complete and did not answer Glaser’s question. The city’s attorney feels that the Article 78 appeal is being filed in order to “harass the accounts office”.

Read article here.


 

Wilmington residents threaten Article 78 appeal over proposed town houses

A group of Wilmington residents are threatening a lawsuit if the proposed town house development is approved. The real estate company, First Columbia, applied to the zoning board of appeals for a density variance to build their proposed 10 acre, 36-unit development. The land-use code only allows a maximum of 20 units on 10 acres.

The owners of the adjacent property are strongly opposed to this project and have organized public hearings and sent letters to the town board. If the variance is granted, they plan on filing an Article 78 appeal. First Columbia has submitted revised plans reducing the number of units from 36 to 33. The unhappy residents are willing to accept the legally allowed 20 units but will file an appeal if the project is approved for a higher number.

Read article here.

Article 78 appeal denied due to prior felony conviction

Matter of Seery v Waterfront Commission of New York Harbor

Petitioner, William Seery, brought about this Article 78 appeal to review the decision of Waterfront Commission of New York Harbor denying his application for registration as a longshoreman and revoking his temporary registration. The Court ruled that respondent had the authority to deny petitioner’s application and revoke his temporary registration solely on the grounds of his existing felony conviction. With this prior conviction, the Court did not need to consider the question of whether petitioner’s presence at the waterfront was a danger to the public peace or safety. The imposed penalty was not shocking to one’s conscience.

Accordingly, the Court dismissed the petition, without costs.

Article 78 appeal for documents from DA denied but approved for documents from NYPD

Matter of Sunter v. David

This Article 78 appeal was commenced by an incarcerated petitioner, Male Sunter, to challenge the decisions of the New York City Police Department (NYPD) and the New York County District Attorney’s Office (DA) denying his request for Freedom of Information (FOIL) documents.

Petitioner requested 88 documents from the DA’s office. The DA denied his request asserting that these documents were exempt from disclosure due to possible judicial interference and the DA’s inability to locate said documents. Petitioner then brought about an Article 78 appeal to obtain the FOIL documents. The Court finds this appeal must be denied as untimely because it was not filed within the 30 day time limit.

Petitioner also requested 68 items from the NYPD. The NYPD provided petitioner with some of the documents requested but denied others as exempt. Petitioner then appealed this determination. NYPD moved to dismiss the petition, claiming that the documents were exempt due to possible interference with petitioner’s pending appeal. The Court denied NYPD’s motion to dismiss on this ground. The NYPD also argued that the proceeding was barred by the statute of limitations but the Court ruled that the proceeding was timely filed within four months from the date petitioner received the determination.

Accordingly, the Court denied the petition as to respondent District Attorney and denied the cross-motion by NYPD and directed NYPD to serve petitioner a Verified Answer.

State Liquor Authority decision modified following Article 78

Cris Place v. NY State Liquor Authority  Appellate Division, First Dept  2008 NY Slip OP 09161

The SLA imposed a $1000 bond forfeiture and a $8,500 civil penalty against the Petiitoner after a hearing which found that marijuana use; after-hours drinking; violation of local laws and ordinances and cabaret activity took place at the accused premises.  The First Department ruled that there was no substantial evidence to support the marijuana accusation but the other charges were backed by substantial evidence.  The Court sent the case back the the SLA for reconsideration of the penalty.  The decision can be found here:  www.nycourts.gov/reporter/3dseries/2008/2008_09161.htm

Article 78 Battle over Railroad Depot-Chautauqua County

Chatauqua County legislators recently rescinded a tax lien for the Forestville railroad depot which had been held by Aimee Rogers.  Ms. Rogers purchased the lien in the hopes of repairing the station.  Based on complaints the legislators rescinded the lien.  In response Ms. Rogers filed the instant Article 78 and was granted an injunction until the Supreme Court hears the matter.  The full story can be found here: www.observertoday.com/page/content.detail/id/514326.html

Article 78 appeal to review denial of variance granted

Matter of Bassano v Town of Carmel Zoning Board of Appeals

 

An Article 78 appeal was brought about by petitioner to review a determination by the Town of Carmel Zoning Board of Appeals denying petitioner’s application for an area variance. The Supreme Court granted the petition, annulling the determination and directing the variance and all necessary permits be granted for petitioner to construct a single-family dwelling on the premises. The Town then appealed the decision of the Supreme Court.

The original decision not to grant the variance sought by petitioner had no rational basis. The variance would not negatively alter the character of the neighborhood and the benefit sought was unachievable by any other means. Since there was no foreseeable adverse effect on the neighborhood, the Board’s decision to deny petitioner’s application was arbitrary and capricious and without a rational basis.

Accordingly, the Court granted the petition, annulled the determination by the Board of Appeals, and directed that the variance and all necessary permits to construct a single-family dwelling on the premises be granted.

 

Matter of Bassano v Town of Carmel Zoning Bd. of Appeals (2008 NY Slip Op 09074)

 

Another Article 78 petition to review denial of accidental disability retirement benefits dismissed

Matter of Joseph Confreda v New York State Comptroller

This Article 78 proceeding was brought about by petitioner, Joseph Confreda, to review a determination of respondent Comptroller denying petitioner accidental disability retirement benefits. Petitioner was employed by the Port Authority of New York and New Jersey as a police officer. In January 2005 while on the job, petitioner slipped and fell on accumulated snow and ice on a wooden plan in front of his command post. He was denied accidental disability retirement benefits because his incident was considered not an accident. Petitioner requested a redetermination and the Hearing Officer denied the petition on the same grounds. Petitioner then commenced this Article 78 appeal.

The burden of proof relies on the petitioner to prove that the injury was accidental. Petitioner testified that he had walked across the plank multiple times during his shift without noticing any snow or ice. In the injury report, petitioner wrote that he “slipped and fell on snow and ice covering [the] plywood”. Since his written statement describes the plank as being ice covered, the Court concluded that petitioner should have been aware of this dangerous condition and been able to anticipate the possibility of falling.

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

Article 78 to review denial of accidental disability retirement benefits dismissed

Matter of Gerard O’Brien v New York State Comptroller

This Article 78 proceeding was brought about by petitioner, Gerard O’Brien, to review a determination of respondent Comptroller denying petitioner accidental disability retirement benefits. Petitioner was employed by the Port Authority of New York and New Jersey as a police officer. In June 2003, petitioner sustained a knee injury while on the job. Petitioner stepped backwards and caught his foot on a sewer grate. He was denied accidental disability retirement benefits because his incident was considered not an accident. Petitioner requested a redetermination and the Hearing Officer denied the petition on the same grounds. Petitioner then commenced this Article 78 appeal.

The burden of proof relies on the petitioner to prove that the injury was accidental. Petitioner testified to being aware of the sewer grates presence but that the grate had been covered by plywood and he did not know that on the day of the incident, the grate was uncovered. The Court thus confirmed the previous rulings that the incident was not an accident. The reasoning behind this decision was that since petitioner was aware of the sewer grate the hazard was therefore something petitioner “could have reasonably anticipated”.

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

Appeal of Southhold Zoning Change Denied

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

Appealing a Character Disqualification from the NYPD

 

Frequenlty I get calls in my office inquirying about what would disqualifiy a candidate from the NYPD.  The NYC Department of Citywide Administrative Services (DCAS) is the personnel office  for New York City and they make the rules for applicants for NYC positions.  On the DCAS website they list the following list concerning factors that may disqualify a candidate from the NYPD:

The following are factors which would ordinarily be cause for disqualification:

  • Conviction of an offense which indicates lack of good moral character or disposition towards violence or disorder, or which is punishable by one or more years imprisonment.

  • Repeated convictions of an offense which indicate disrespect for the law.

  • Discharge from employment as a result of poor behavior or inability to adjust to discipline.

  • *Dishonorable discharge from the United States Military.

  • Conviction of an offense for Domestic Violence Misdemeanors.

  • *A Felony conviction.

  • Statutory Disqualification (disqualified by law)

A candidate that receives a disqualification from the NYPD other law enforcement or civil service positions can contact my office to see if an appeal would be appropriate:

Toll-Free (888) 998-9984
Law Office of Kevin P. Sheerin
323 Willis Ave, Suite 1
Mineola, New York 11501

Article 78 appeal against denial of accident disability retirement benefits dismissed

Matter of Stanley Jefferson v Raymond Kelly

This Article 78 proceeding was commenced to annul respondents’ decision denying petitioner’s application for accident disability retirement benefits. Petitioner became a uniformed police officer for the NYPD in 1997 and was assigned to work at the World Trade Center site for some period of time following the September 11 attacks. The petitioner began having symptoms of depression, anxiety, and agoraphobia in 2002 and was granted ordinary disability retirement (ODR) in 2004. Shortly thereafter, petitioner applied for accidental disability retirement (ADR), claiming that his psychological problems were due to the time spent at Ground Zero. The Medical Board unanimously denied petitioner’s application in 2005 which resulted in this Article 78 appeal.

Petitioner argued that the denial of his ADR was arbitrary and capricious. Respondents contend that credible evidence exists showing that petitioner’s disability was not caused by his time assigned to the World Trade Center site but due to his cardiac problems and the passing of his mother. Additionally, petitioner did not file the necessary notice of petition to qualify for the World Trade Center presumption.

In the various medical documents from petitioner’s doctors and mental health care providers there are numerous references linking his anxiety, panic, and depression to the death of his mother and his incipient cardiac disease. Neither of petitioner’s doctors causally linked his psychological ailments to his World Trade Center assignment but instead suggested his condition was caused by other “life changing circumstances”.

Accordingly, the Court denied the petition and dismissed the proceeding.

Article 78 police officer appeal against 40 days suspension denied

Matter of Lou-Ann Elias v Raymond Kelly

This Article 78 proceeding was brought about by Petitioner Lou-Ann Elias to reverse a determination of respondent Police Commissioner finding the petitioner guilt of engaging in prohibited conduct with a punishment of 40 days suspension. Petitioner visited her estranged husband who was growing marijuana plants in his basement. Petitioner admitted that she was aware of an always locked room in the basement and that her estranged husband mentioned the idea to grow marijuana in the basement. These facts along with Petitioner’s use of the garage, located closely to the growing room, where both the smell of marijuana and heat from growing lamps would be noticeable, is substantial evidence that Petitioner’s ignorance of criminal activity was deliberate. The Court feels that the 40 day suspension does not shock the conscious.

Accordingly, the Court affirmed the determination and denied the petition.

Article 78 appeal of denied mobile food license renewal granted

Matter of Falco v. NYC Department of Health and Mental Hygiene

Petitioner, Michael Falco, brought about this Article 78 proceeding to challenge Respondent’s determination not to renew his mobile food unit license due to his vehicle inspection request being one week late. Falco is an honorably discharged military veteran who was permanently disabled while serving this country. For the past few years, Falco has been earning his living with a food vending machine. Falco filed his renewal application in a timely manner but due to a confusing regulation, he did not initiate the request for his vehicle to be inspectedwithin the specified time frame. Respondent denied his renewal license which led to Petitioner filing this appeal.

For the Respondent to force Petitioner, a disabled veteran, to lose his livelihood for being a few days late is arbitrary and capricious. Respondent’s claim that they do not have the discretion to inspect the vehicle after the six month period has passed is irrational. The decision to deny Petitioner’s license renewal for such a minor mistake is arbitrary, especially considering the laws in place concerning disabled military veterans.

Accordingly, the Court granted the petition and vacated Respondent’s determination to deny Petitioner a renewal license.

Tavern wins Article 78 case to get back license taken after isolated drug use

In July 2006, a police officer noticed someone smoking marijuana in a tavern in Brooklyn, Albany Manor. Subsequently, an administrative law judge revoked the bar’s liquor license on the grounds that the bar owner “suffered or permitted” the tavern “to become disorderly”. The tavern then initiated this Article 78 appeal.

 

Albany Manor argued that the state agency did not have substantial evidence to prove that the isolated incident of reported marijuana usage amounted to a violation of §106(6) and that the penalty was arbitrary and capricious.

 

The Appellate Division noted that the bar had eight security guards on duty on the night in question patrolling the premises to ensure that no one was smoking. The bar also had openly displayed “no smoking” signs throughout the tavern and no ashtrays. There was no evidence that the petitioner had any knowledge of the act and nothing indicating that this was an ongoing condition.

 

Accordingly, the panel annulled the authority’s revocation of the bar’s liquor license.

Decision to allow NYPD drug screening by hair analysis instead of urinalysis reversed

City of New York v. Patrolman’s Benevolent Association of the City of New York Inc.

This appeal was brought about to review the decision of the Supreme Court granting a petition and annulling the determination of respondent New York City Board of Collective Bargaining finding that petitioners violated the collective bargaining agreement with respondent unions. Petitioners argue that changing the method of random drug testing from urinalysis to hair analysis by NYPD should be exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner.

 

In August 2005, the NYPD stopped using urinalysis as its preferred method of random drug screening and switched to radioimmunoassay of hair (RIAH) without consulting with the unions. The unions protested by filing an improper practice petition with the New York City Office of Collective Bargaining (OCB). The OCB granted the unions’ petition, finding that NYPD violated NYC Collective Bargaining Law §12-306(a)(4) by “unilaterally changing drug testing procedures, a mandatory subject of bargaining.”

 

The NYPD then brought about an instant Article 78 proceeding to annul this decision as arbitrary and capricious. The Supreme Court granted the petition holding that it was arbitrary and capricious for the OCB to rule that the choice of testing was not related to the Police Commissioner’s disciplinary authority. The Court felt that forcing the Commissioner to negotiate with the police officers that would be subjected to the testing would make his authority appear meaningless.

 

In this review of the first ruling of the Supreme Court, the Court felt petitioners were seeking to avoid their obligation of collective bargaining by extending the Commissioner’s investigatory authority beyond the context of formal disciplinary proceedings to which it is confined. The reason the limitation of authority exists is to create a balance between the concerns of public employees and the disciplinary authority of the Commissioner.

 

Accordingly, the Court reversed the decision, denied the petition and reinstated the determination of the Board of Collective Bargaining.

 

Article 78 proceeding to compel acceptance of Fire Suppression application denied

Matter of Karl v. NYC Department of Citywide Administrative Services

This Article 78 proceeding was brought about by Petitioner, Brian Karl, to compel New York City Department of Citywide Administrative Services (DCAS) to accept his application for a Master Fire Suppression Piping Contractor (Fire Suppression). Petitioner is a Master Plumber who has been installing fire suppression systems under the supervision of a Licensed Master Plumber for 12 years.

 

Prior to 1990, licensed Master Plumbers were permitted to install fire suppression systems. Then the law changed so that only a specifically licensed Master Fire Suppression Piping Contractor could work with fire suppression systems. On July 1, 2008, the requirements for a Fire Suppression license changed from requiring 7 years of plumbing experience with at least 3 years in fire suppression experience to requiring 7 years of fire suppression experience within the ten-year period prior to the application.

 

Petitioner met the requirements of the old law but not the new one and attempted to file an application for the next Fire Suppression license exam, hoping to qualify for the license under the old rules. DCAS declined to accept his application because the 2008 exam had already passed and no date had been set for the 2009 exam. Petitioner then commenced this proceeding in the nature of mandamus to compel the city to accept his application.

 

Petitioner Karl argued that DCAS had a duty to accept his application when he sought to file it in May 2008. The Court asserts that mandamus relief is not available because there is not “a clear and absolute legal right to the relief sought.” Karl failed to cite any statute or regulation that would support his claim that he had a clear legal right to file an application in May or that DCAS had an absolute duty to accept it at that time. Also, the Rules of the City of New York place the burden of acquiring information concerning exams and new laws solely on the applicant making Karl’s argument that he was entitled to advance notice obsolete.

 

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

 

Article 78 appeal to review determination granting special permit dismissed

Matter of Joseph Grogan v. Gerald Wright

This Article 78 case was brought about to review a determination of the Town of Hempstead Board of Appeals granting Shawn Pobiner with a parking space variance and special permit. The petitioner appealed the judgment of the Supreme Court which denied the petition and dismissed the proceeding.

 

The Court feels that the Board appropriately weighed the facts set forth by law and the determination to conditionally grant the application was supported by evidence and not arbitrary and capricious. The granting of the application would not be inconsistent with the character of the surrounding neighborhood nor would it adversely affect nearby properties or the environmental conditions in the area.

 

Accordingly, the Supreme Court ordered the judgment affirmed, with costs.

Article 78 appeal to review determination terminating temporary employment dismissed

Stephen Russell v New York Citywide Administrative Services

This Article 78 case was brought about by Petitioner, Stephen Russel to challenge his termination and to review a determination of the New York City Transit Authority dated April 13, 1989. The New York City Department of Citywide Administrative Services (DCAS) terminated petitioner’s temporary employment as a bridge and tunnel officer because he omitted information concerning a prior misdemeanor on his employment application. The Supreme Court found that DCAS’ decision to terminate the petitioner was not arbitrary and capricious, had a rational basis, and was not made in bad faith. Also, the statute of limitations bars this appeal from being granted.

 

Accordingly, the Supreme Court ordered the judgment affirmed.

Article 78 petition against Metropolitan College of New York dismissed

Veronica Rosario v. Metropolitan College of New York

Petitioner, Veronica Rosario, filed a verified complaint charging her former employer, the Metropolitan College of New York, with discrimination on the basis of her disability. She claimed that the College terminated her employment after discovering that she suffered from bi-polar disorder.

 

Petitioner voluntarily resigned her position at the College via e-mail during an alleged manic state. The rationale for the Division’s determination was that petitioner did not request special accommodation in connection with her bi-polar condition before, during, or after her hospitalization. Petitioner argued that a reversal of the Division’s decision was warranted due to triable issues of fact.

 

The Court felt that the Division’s investigation was adequate and permitted petitioner adequate opportunity to present her contentions and it was within the administrative body’s discretion to decide the method(s) to be employed in investigating a claim. There was no evidence that the investigation was abbreviated or one-sided and no basis to annul the determination as arbitrary and capricious.

 

Accordingly, the Court dismissed petitioner’s Article 78 application and upheld respondent’s “No Probably Cause” Determination as not arbitrary or capricious and having a rational basis.

Article 78 decision placing petitioner's name on special eligible list reversed

Matter of Melvin Deas v. Judith Levitt, Director of NYC Department of Personnel

Petitioner took a promotional competitive exam in 1983 and obtained the third highest score on the list in 1984 but was deemed psychological unfit. He appealed the disqualification and underwent a second psychological evaluation. In 1985, the New York City Director of Personal disqualified petitioner for medical reasons based on the psychiatrists’ reports. Petitioner appealed the decision. On August 14, 1986, the Civil Service Commission reversed the decision and declared petitioner medically eligible. On September 5, 1986, petitioner was notified that he could not obtain the position because the eligible list expired on August 27, 1986. Petitioner then requested that his name be placed on a special eligible list. His request was denied and petitioner commenced this article 78 proceeding. Supreme Court dismissed the petition but the Appellate Division reversed and granted the petition.

 

Petitioner argued that having successfully completed the examination he would be entitled to be considered for promotion. A competitive examination may demonstrate merit and fitness at the time of the exam but as time passes, the exam becomes a less valuable representation. Individuals who have taken a more recent exam may be more fit and better prepared. Petitioner did not allege that the eligible list was constitutionally invalid. The rule requiring civil servants to be appointed from a current and not expired list is constitutionally mandated and far from arbitrary or irrational.

 

Accordingly, the Appellate Division reversed the decision of Supreme Court and dismissed the petition reinstated, without costs.

Article 78 appeal to review revoked pistol license granted

Matter of Schneider v. Mulvey

Petitioner brought about this article 78 proceeding to review the determination of and vacate the revocation of his pistol license and reinstate it on the grounds that the decision was arbitrary and capricious.

 

The officer who filed the initial complaint that resulted in the pistol permit revocation failed to attend Petitioner’s hearing. Additionally, the Hearing Officer refused to allow Petitioner’s attorney to cross-examine the witnesses. The Petitioner must be given the opportunity to confront and cross-examine witnesses as is entitled to him in his right to due process.

 

Accordingly, the Court vacated Respondent’s determination and referred the matter to the Nassau County Police Department to conduct a de novo hearing with the right of cross-examination.

Article 78 challenging termination from FDNY results in Court ordering proof that petitioner's doctor's note was considered prior to termination

 

Adam R. Duchinsky v. Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York

This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary firefighter with the Fire Department of the City of New York. Petitioner was hired as a “provisional” EMS-EMT for the FDNY in 2006. Prior to being hired he disclosed that in 2000 he sustained an injury to his left knee and undergone arthroscopic surgery to repair the damage. In March 2007, Petitioner resigned from this position and became employed as a “probationary” firefighter. Again, Petitioner disclosed his previous injury and subsequent surgery.

Petitioner sustained an injury to his right knee during training in April of 2007, returned to work after a short medical leave but then was placed on light duty due to pain until mid-July. In August of 2007, Petitioner injured his left knee in another training exercise. This injury led to Petitioner’s termination as a probationary firefighter less than a month later. Petitioner then submitted this Article 78 to review the termination under the “arbitrary and capricious” standard.

Prior to his termination date, on August 23, 2007, Petitioner’s doctor, Dr. Levy, wrote a note that stated there was no reason that Petitioner couldn’t perform his duties once his knee sprain healed, that his previous injury was in no way related to the more recent one, and that he should be able to “complete a full career if at least twenty years as a New York City firefighter”. This doctor’s note is significant because it included an MRI that showed “no problems” and the Bureau of Health Services doctor, Dr. Kelly, never mentioned this information in his determination that Petitioner was “medically unqualified to perform the duties of a probationary firefighter”. Since Dr. Kelly relied heavily on the operative report for Petitioner’s 2000 surgery performed by Dr. Levy, logically he should place equal value on the August 23 Doctor’s Note.

Accordingly, the Supreme Court ordered Respondents to deliver to the court affidavits and other evidence to prove when the August 23 Doctor’s Note was received and whether and by whom it was considered prior to Petitioner’s termination.

Motion to dismiss Article 78 seeking issuance of building permit denied

 

Albano v. Town of Islip

Petitioner brought about this Article 78 proceeding to reverse the decision of the Islip Town Engineer and gain a building permit. Petitioner applied to the Town of Islip Board of Appeals in 2006 for an area variance to build a single family dwelling on the premises. In 2007, the Board granted the application with the condition that the applicant could not build until clearing it with the Engineering Department. The Town Engineer expressed concern that construction would cause problems with drainage and flooding and have adverse effects of the environment thus denying the permit application.

Petitioner then commenced this Article 78 in order to annul the Town Engineer’s decision arguing that it was arbitrary, capricious and an abuse of discretion. Petitioner annexed an affidavit from a licensed engineer providing an amended plan with a proposed superior drainage system.

Respondents argue that petitioner failed to state a claim upon which relief is granted, that mandamus is not appropriate, that petitioner’s statute of limitations expired, and that petitioner failed to name a necessary party. The Court agreed with respondents that mandamus relief is not available in this case. In regards to the statute of limitations, the Court found that the proceeding was timely commenced. The Court also disagreed with respondents’ argument that petitioner’s failure to join the Building Division of the Department of Planning and Development as a necessary party should mandate dismissal of action.

Accordingly, the Supreme Court denied respondents’ motion to dismiss the petition based upon nonjoinder of a necessary party.

Retired schoolteacher's appeal to change health insurance to family plan granted

 

Douglas Bower v Board of Education, Cazenovia Central School District

Petitioner retired from his teaching position in 2004. In 2006, he got married and requested to change his health plan from individual coverage to family coverage so that his wife would be covered. The district refused and said that a retired teacher is not allowed to change his coverage. Petitioner appealed this decision and the Court granted his motion. Respondents then brought about this appeal.

Respondents argued that petitioner was not allowed to change his coverage following retirement. According to the “ENROLLMENT CHANGES” section of the agreement “[y]ou may request a change from individual to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse.” This section never indicates that the “you” does not include retired employees.

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

Challenges to Civil Service Commission Decisions



Challenging an administrative determination by a civil service commission

Challenging an administrative determination by a civil service commission
Horn v The New York City Civil Service Commission, 43 A.D.3d 760, Appellate Division, First Department

Sharhann Lane, had been terminated from her position with the New York City Department of Corrections. She appealed to the New York City Civil Service Commission, which directed the Department to reinstate her to her former position.

Martin Horn, the Commissioner of the New York City Department of Correction, filed an Article 78 petition seeking to annul the Commission’s determination reinstating Lane to her former position as a correction officer.

Citing Matter of New York City Dept. of Envtl. Protection v New York City Civil Service Commission, 78 NY2d 318, the Appellate Division ruled that the lower court properly dismissed the Commissioner’s petition as a determination by the New York City Civil Service Commission is subject to judicial review only if “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”.

The Commissioner of Corrections had argued that the Civil Service Commission’s determination was against public policy and inconsistent with the Commission’s precedents in such matters. Challenges based on an alleged violation of public policy and, or, a failure to follow precedents, said the court, do not fall within the scope of judicial review permitted – i.e., consideration of alleged illegal or unconstitutional actions by the Commission or rulings alleged to be on matters beyond the Commission’s jurisdiction.

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

Article 78 appeal to review suspension of pay and benefits granted

Matter of Thomas Kempkes v Brian Downey

Petitioner, a police officer, brought about this Article 78 appeal to review a determination by the Chief of Police of the Village of Bronxville suspending petitioner without pay pending a disciplinary hearing. Petitioner argued that the Village was obligated to pay his disability benefits pursuant to General Municipal Law § 207-c since benefits conferred under this law constitute a vested property interest.

The issue in this case was whether General Municipal Law § 207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held. Since the constitutional guarantee of due process requires that a benefit recipient under General Municipal Law § 207-c be granted an evidentiary hearing prior to suspension of said benefits, a municipality may not discontinue the benefit payment without a prior evidentiary hearing.

Accordingly, the Supreme Court annulled the petitioner’s suspension and ordered appellants to restore the disputed benefits to petitioner until an evidentiary hearing is held and a final determination of the disciplinary charges made.

Article 78 appeal against issuance of building permit and certificate of occupancy denied

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.

Article 78 judgment dismissing review of special use permit issuance reversed

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.

Article 78 appeal to review revoked medical license denied

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.

Article 78 appeal to review violation of Alcoholic Beverage Control Law granted

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.

Nassau plans to appeal $950,000 awarded to correction officer

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.

Nassau correction officer awarded close to one million dollars

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.

Article 78 petition to grant master electrician license without further hearing denied

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.

Firefighters lose appeals against terminations for drug usage

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.

Article 78 termination during extended probationary period dismissed

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.

Article 78 to reverse issuance of special use permit denied

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.

 

Article 78 Decision Reversed and Petitioner Reimbursed Expenses

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.

 

Article 78 to reverse employment termination for false application statements denied

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.

BOCES termination penalty too severe; back pay awarded at demontion level salary

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.

Article 78 appeal of FDNY termination for false statements denied

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.

Article 78 to review Atlantic Yards project denied

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

Substantial evidence supports child care license revocation

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

Article 78 petition to annul disqualication denied

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.

Appeal of Suspended Child Care License Denied

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/

Article 78 Reinstatement as a Taxicab Driver Denied

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.

Article 78 Disability Benefits Granted

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

Teacher not entitled to Defense and Indemnification when sued for Intentional Tort

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/



Due Process Hearing satisfied through Grievance and Article 78

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

Article 78 dismissed for failure to exhaust administrative remedies

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

No Vote Directive Not "Final and Binding" Article 78 Petiton is timely

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

This recent 2nd Dept Case found that in a proceeding pursuant to CPLR article 78 to compel the respondent, Edward A. Diana, to permit the petitioner Ronald J. Greene to vote on all matters before the Orange County Deferred Compensation Committee, the petitioners appeal from an order and judgment (one paper) of the Supreme Court, Orange County (Alessandro, J.)which originally dismissed the petition as time barred.  The lower court judgment was reversed and responded was directed to submit and answer.

At meetings of the Orange County Deferred Compensation Committee (hereinafter the Committee) held on July 15, 2005, and March 15, 2006, the petitioner Ronald J. Greene, a representative of the petitioner Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (hereinafter CSEA), assigned to sit on the Committee, was not permitted to vote on issues involving the plan administrator of the deferred compensation plan applicable to County employees. Greene and CSEA commenced this CPLR article 78 proceeding in July 2006 to compel the respondent, Edward A. Diana, the chair of the Committee, to permit Greene to vote on these matters. However, the Supreme Court granted Diana’s motion to dismiss the petition as time-barred and dismissed the proceeding. We reverse.

A proceeding pursuant to CPLR article 78 must be commenced within four months after the challenged determination becomes final and binding on the petitioner (see CPLR 217[1]). Contrary to the conclusion of the Supreme Court, Diana failed to establish that his refusal to permit Greene to vote on July l5, 2005, as a member of the Committee was a final and binding determination that inflicted an actual, concrete injury that could not be “significantly ameliorated” by subsequent administrative action (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34; see Matter of Essex County v Zagata, 91 NY2d 447, 454). Rather, the allegations in the petition refer to a continuing statutory violation (see Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424, 425; see generally Selkirk v State of New York, 249 AD2d 818, 819; cf. Watson v State of New York, AD3d , 2007 NY Slip Op 01602, *2-3 [3rd Dept 2007]). Thus, the proceeding was timely commenced within four months of the March l5, 2006, refusal to permit Greene to vote.

In view of our determination, the matter must be remitted to the Supreme Court, Orange County to permit Diana to file an answer (see Matter of Bethelite Community Church Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8 NY3d 1001, 1002).



Civil Service Commission disqualifies applicant



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.

Article 78 Reinstatement as a Police Cadet Denied

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.

Appealing Medical and Pyschological Disqualifications

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.

Article 78 for Master Electrician's License Denied

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. 

Corrections Officer's Article 78 Petition to Reverse Termination Denied

                                                                                                                                               

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.

Court directs Unsatisfactory Rating Be Removed from Teacher's Record

  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.

Overview of New York State Civil Service Commision

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).

  1. 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.

  1. 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.

ARTICLE 78 NYSDEC MOTION TO DISMISS DENIED BASED ON ISSUES OF FACT REGARDING BROWNFIELDS PROCEDURES

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.

 

 

 

 

MTA retiree not entitled to Health Insurance - less than 10 years service

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

Retiree allowed post retirement hearing for "name clearing"

Murphy v. City of New York 35 A.D.3d 319, 827 N.Y.S.2d 46 N.Y.A.D. 1 Dept.,2006. December 28, 2006

Petitioner claimed that he was forced to retire from his position with the New York City Employees’ Retirement System, and asked for a pre-termination hearing on his forced retirement and a post-termination hearing to clear his name. The Court denied the pre-termination hearing holding that Petitioner’s retirement is deemed voluntary so no trial or hearing on the issue was warranted. The Court held for Petitioner on the matter of the name-clearing post-termination hearing. It held that the report prepared Respondents’ Department of Investigation contained inaccuracies that were stigmatizing to Petitioner. The court held that the requirement of loss of employment had been met regardless of whether or not Petitioner was fired or had retired.

No new list created for Petitioners placed on eligible list one month before expiration

Carozza v. City of New York