Appeal of Disqualification for Stationary Engineer Overturned

 Candidate for the position of Stationary Engineer (Electric) was disqualified in February 2011 due to being educated abroad and lack of work experience.  His Appeal for Manifest Error was denied in March of 2011. In October of 2011, due to a detailed breakdown of Candidate’s education and work experience to the New York City Department of Citywide Administrative Services, Candidate was found qualified and his appeal was dismissed as moot.  

Fazzolary v NYC

The Plaintiff was a Sergeant in the Detective Bureau of the NYPD and when she stepped off  a curb to assist a motorist with directions when she was injured.  The case was dismissed on motion because it was determined that she was unable to prove that the city had prior notice of the defective condition of the curb and the curb was not defective or dangerous by reason of its height therefore there was no issue to be determined by the court.  Accordingly, her claim and case was dismissed.

Read about this Civil Service case here.

Notice of Claim Does Not Cover Subsequent Acts

 In a case brought by another law firm, Plaintiff filed a notice of claim about discriminatory acts under New York State Executive Law §296 in 2003. After lengthy absence plaintiff resumed his position with the school district in his suit plaintiff claimed there were discriminatory acts after the notice of claim was filed the Appellate Division, Second Department held that the plaintiff could not recover for acts subsequent to the notice of claim because the school district did not have notice of those subsequent acts. You can read about this discrimination case by clicking here

Volunteer Firefighter's Off Duty Flu Shot Post Accident Covered by Worker's Compensation

Matter of Pettit v Scipio Volunteer Fire District

 

          The District and the Workers’ Compensation Carrier appealed the Workers’ Compensation Board decision that ruled that Claimant’s injuries occurred within her duties as a volunteer firefighter. 

          Claimant, after receiving her vaccination for the swine flu, was injured in a car accident on her way home.  Claimant then filed a claim where at a hearing it was determined that the claim fell within the provisions of the Volunteer Firefighters’ Benefit Law.

          The Court affirmed the decision of the Workers’ Compensation Board.  The Board found that claimant’s injuries were covered under the Volunteer Firefighters’ Benefit Law 5(1)(p), which included participation in a “… program for purpose of promoting or maintaining the performances of their duties as firefighters, as well as necessary travel to and necessary travel from such activity.”  The evidence proved that the District strongly encouraged volunteers to receive the swine flu vaccine and arranged for them to receive it at no cost.  The Claimant stated that if not for the directives from the District she would not have received the vaccine.  Therefore the Court upheld the Workers’ Compensation Board’s decision that Claimant’s injuries occurred within her duties as a volunteer firefighter. 

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03920.htm

 

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.

Suspension due to unauthorized electronic device! (Dep't of Correction v. Blount)

          Respondent, a Corrections Officer was found guilty of bringing a Nook Wi-Fi Reader into a prohibited area of the inmate facility at the Rose M. Singer Canter.  Respondent admitted to her wrong doing immediately when Petitioner found the item that was not permitted in the facilities.  Respondent alleged that she had grabbed the wrong shopping bag from her locker, and hid the bag that contained the unauthorized item behind a garbage bag.  Petitioner claimed she had a good track record and had not been any trouble before that incident.

          Following her conversation with senior members at the facility, she was immediately suspended pre-hearing for fifteen days suspension without pay.  The Administrative Law Judge recommended she be suspended for 10 days.  Given that she had already been charged with fifteen days it was recommended she be credited with the extra five days pay.

          It was recommended that due to Respondents clean disciplinary record and her overall acceptance of responsibility that a penalty suspension of ten days without pay is appropriate, and because Respondent was immediately suspended without pay for fifteen days, that the Department credit her five days pay.

Read about this New York City Corrections Officer discipline here.

Read more stories like this on my website.www.sheerinlaw.com

Police Department required to return seized vehicle (Police Dep't v Peake)

          Petitioner, the Police Department brought about a proceeding to determine its right to retain a vehicle seized when a man was caught drinking and driving, with a breath test that was more than twice the legal limit.  Respondent was also responsible for damaging three vehicles on the night of his arrest.

          Respondent argued that although he admittedly was under the influence, Petitioner failed to comply with the Krimstock Order, which are rules required to be followed during the seizure of a person’s vehicle.  As stated in the Krimstock Order, the Department must provide notice of the right to a retention hearing in two distinct ways:

          Notice of the right to a hearing will be provided at the time of seizure by attaching to the [Property Clerk’s] voucher already provided to the person from whom a vehicle is seized a notice, in English and Spanish, as set forth below.  A copy of which notice will also be sent by mail to the registered and/or titled owner of vehicle within five business days after the seizure.

          Respondent testified that the police did not give him any paperwork after he was arrested and the Department had no proof of notice of Peake having been served at the time of the seizure.  As for the second required type of notice, by mail within five business days of the seizure, the Department submitted a copy that was past 10 business days from the seizure and what NYPD sent was not clearly legible, with an initial by a person that no one seemed to know.

          The Petitioner’s claim was granted due to the Police Departments failure to comply with the dual notice requirement of the Krimstock Order, the vehicle had to be released to Respondent.

To read more about this case click here.

To read more stories like this click here and 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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DRUG TESTING: NO EXCUSE FOR FAILING TO PRODUCE A URINE SAMPLE. (GIBBON V CITY OF NEW YORK)

          In Gibbon v City of New York, Respondent failed to provide a urine sample required for the Assistant City Highway Repairer position.  Respondent stated his inability to provide a urine sample was based on a medical condition that prevented him from being able to provide one.  He stated that New York City violated His rights and that he was discriminated against due to a medical condition.

         

          Defendant alleged benign prostate hyperplasia (BPH) prevented him from producing a sample within a three (3) hour period, but the court held there was no conclusive evidence that Petitioner’s condition would prevent him from providing a sample in a three hour time period.  Defendant, City of New York argued they did not violate state and local discrimination laws.

         

          The City’s Motion argued to dismiss the complaint was granted.  Plaintiff failed to comply with The City’s drug test procedures and Defendant was implementing federal regulations required for the position and did not violate state or local discrimination laws by doing so.

          To read more about this drug test case click here.

 

DOE's Motion to Dismiss CSL 75-b Whistleblower Case Denied

DOE’s Motion to Dismiss CSL 75-b Whistleblower Case Denied

 

          The “whistleblower action” pursuant to Civil Service Law 75-b, claimed that Plaintiff, guidance counselor, was wrongfully terminated after “complaining to the school principal regarding improper suspensions and inadequate supervision of students.”  Defendant, Department of Education of the City of New York, filed a motion to dismiss the amended complaint based on the failure to submit a Notice of Claim, SOL, collateral estoppel, and the accessibility of a solution under the collective bargaining agreement. 

          A NOC was not filed in the instant case.  Education Law 3813 requires such filing within 3 months of the accrual of claim.  In the case sited by the Plaintiff, a NOC is not required where the relief sought is “equitable in nature.”  In the instant case Plaintiff sought reinstatement and other equitable relief.  Therefore, the Court held that the NOC was not “a condition precedent to this action.”

          Defendant also moved to dismiss the proceedings because Plaintiff failed to report the alleged misconduct to an appropriate governmental body under Civil Service Law 75-b.  Subdivision (2)(b) of 75-b mandates that an employee make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action … (A)n employee who acts pursuant to this paragraph shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision.”  Plaintiff reported the alleged misconduct to the head of the school.  The Court found that the internal complaint satisfied the reporting requirement with Civil Service Law 75-b.

          Defendant also moved to dismiss the proceedings because they proposed it was barred by applicable statute of limitations.  The Court determined that the proceedings were within the time limits provided in CPLR 205(a). 

          The Court found that the Defendants argument that Plaintiff’s action is barred by collateral estoppel was also without merit.  As stated above, the Court found that no external complaint was mandated to satisfy Civil Service Law 75-b.

          Defendant’s argument that Civil Service Law 75-b(3)(a) and (3)(b) that plaintiff was subject to a collective bargaining agreement, that provided Plaintiff the opportunity to contest his termination, was denied. 

          The Court denied defendant’s motion to dismiss the amended complaint.  So ordered that the defendant serve an answer to the amended complaint and that the parties meet for a preliminary conference. 

 

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

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

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

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

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

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

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

You can read the Probationary teacher Khan case here. 

Work EMail ruled not privileged

 In a post from the New York Public Personnel Blog of Harvey Randall:

THURSDAY, NOVEMBER 10, 2011

Attorney-client privilege may not protect confidential e-mail transmittals between an employee and his or her attorney posted from employer's computer

 

Long v. Marubeni America Corp., No. 05 Civ. 639 (GEL) (KNF), 2006 WL 2998671 (US District Court, Southern District of New York.
 
An employee used his employer’s computer while at work to send e-mails to his attorney. Such use was in violation of his employer’s policy barring the use of work computers for personal business. In addition, the employee was aware of his employer’s policy statement advising workers that company computers were monitored for Internet activity, including e-mail traffic.
 
As a result, the e-mails to and from his attorney sent using the employer's computers were held not to be confidential communications protected by the attorney-client privilege.
 
The court ruled that the employee knew, or should have known, about his employer’s Internet monitoring policy. Accordingly, when he disregarded it, his emails to his attorney lost any protection that the doctrine of attorney-client privilege would have otherwise provided such communications.
 
 
 

Court finds Police Officer's Injuries as Work Related and Claims Her Eligible for Benefits

Matter of Wydra v City of Rochester

 

Petitioner was terminated from employment as police officer, and discontinued payment of benefits.

Petitioner experienced depression and anxiety due to, at least in part, by work-related incidents.  It was improper to further analyze whether she suffered from PTSD.  The decision that the petitioner’s disabilities were not caused by job duties and that the petitioner should not be eligible for benefits under the City Charter’s equivalent of section 207-c lacked substantial evidence.  The petitioner’s termination as being caused by absences due to a non-work injury, must be annulled as it is proved here that it is a work-related injury.  

 

Upcoming City Exams

As reported by Lisa Colangelo of the NY Daily News, New York City released a list of city exams that it plans to give over the next 12 months. These exams are for jobs ranging from a police officer and school safety to case workers, statistician and plasterers.

Civil service is great opportunity for job seeker, but test takers need to keep in mind that taking or even passing an exam does not guarantee a job. New York City is also making it easier to take the exams by offering a number of tests at the Department of Citywide Administrative Services Computerized Testing Centers. The exam fee ranges from $40 and higher and applicants must have a bachelor’s degree.

For more information regarding the upcoming exams, please got to www.nyc.gov/dcas

Read more at NY Daily News.

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.

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

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?

Orangeburg changes Town Code to avoid Civil Service Test

It was recently reported that Orangeburg changed its Town Code to allow for an incumbent to remain in his position without having to give a Civil Service Exam.  The incumbent's position was nominated a Commissionership and therefore no exam was required.   Read about this Civil Service case here.

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.

NYPD April 2011 Cadet Class postponed

April 2011 Police Academy Postponed

April’s Police Academy has been postponed until July 2011. July’s class will consist of 900 members, including the 540-cadet class members who were postponed in January. The city’s goal is to save money by having only one class for the year.

 

Read more at Silive.com  

 

NY Daily News take on the issue

www.nydailynews.com/ny_local/2011/04/13/2011-04-13_city_postpones_police_academy_class_until_july_to_save_money.html

 

3020-a Morrell v. DOE

In the Matter of Renee Morrell v. New York City Department of Education

 

Pursuant to CPLR 7511 and Education Law § 3020-A, Petitioner sought to vacate the findings and recommendations made by a hearing officer regarding her employment as a tenured teacher. The hearing officer found Petitioner guilty of disciplinary charges that were filed against her by the BOE, which served as just cause for termination.

 

Petitioner, Renee Morrell, has been teaching in the NYC public school system since 1993. In 2005-2006, Petitioner was working at P.S. M197. In May 2006, the school principal received a report regarding Morrell involvement in a physical altercation with a sixth grade male student. The case was referred to OSI.

 

OSI, then, interviewed the same people and substantiated that Petitioner had “punched and kicked” the student during a physical altercation. The Department of Education (DOE) charged Morrell with violating Chancellor’s Regulation A-420. “Chancellor’s Regulation A-420 enforces Department of Education Bylaws and includes reporting requirements established under Regulations of the Commissioner concerning the use of physical force upon a student for punishment purposes.

 

Once DOE received OSI results, DOE initiated a mandatory arbitration proceeding against Petitioner. Morrell’s charges included “…violation of Chancellor's Regulation A-420; just cause for disciplinary action pursuant to Education Law 3020-a; conduct unbecoming respondent's position or conduct prejudicial to the good order, efficiency or discipline of the service; substantial cause rendering respondent unfit to properly perform her obligations to the service; neglect of duty; and just cause for termination.”

 

There was a pre-hearing held on June 22, 2009 and six hearings from then until October 19, 2009. On May 2, 2010, the hearing officer made a written Opinion and Award stating that Petitioner “…is guilty as charged in Specification 1 insofar as on May 15, 2006, the Petitioner struck Student E.R. during a physical altercation, as well as pushed him into a wall (causing him to hit his head), sat on him, and shook him up and down.” Morrell’s conduct violates Chancellor's Regulation A-420 and results in just cause for termination.

 

Morrell received a copy of the finding and recommendation of the hearing officer from the Teacher Tenure Hearing Unit if the New York State Department of Education in a letter dated May 12, 2010. The letter informed Petitioner that she has the right to make an application to the court requesting to vacate or modify the decision

 

Education Law § 3020 oversees discipline of tenured teachers. For instance, any charges brought against a tenured teacher are first subjected to compulsory arbitration before a single hearing officer. “Education Law section 3020-a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR 7511. Under such review, an award may only be vacated on a showing of misconduct, bias, excess of power
or procedural defects. Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”

 

Petitioner brought forth four contentions. First, Petitioner believes the arbitration award should be vacated due to untimeliness. According to the collective bargaining agreement, a hearing based on allegations of extreme misconduct should be completed within two to three months. Morrell’s hearing took place over an eight month period, from June 22, 2009 to February 5, 2010. Education Law § 3020-a states that the final hearing in a matter must be completed within sixty days from the pre-hearing conference and a decision must be made within thirty days of the final hearing. Petitioner’s decision was submitted 86 days after the final hearing date.

 

Although Morrell’s first contention is within Education Law § 3020, she still needed to demonstrate that she experienced form undue injustice as a result of the alleged delay. Petitioner was unable to show this; therefore the court decided her first contention is without merit.

 

Petitioner’s second contention is that she believes Respondent did not have a probably cause hearing as state in the collective bargaining agreement. When an employee is accused of serious misconduct, the employee would be removed from their position for not more than two month without pay. This can only happen after a finding by a “probable cause arbitrator”. Morrell does not dispute that she was ever suspended without
pay, as permitted by Article 21(G)(5) of the collective bargaining agreement and Respondent affirms “…that the contractual provisions relating to serious misconduct were not invoked by DOE or the hearing officer. Accordingly, the court finds that the provision does not apply to the facts of this proceeding.”

 

Morell’s third contention states that Respondent did not hold a expedited hearing as stated in the collective bargaining agreement. Respondent sought to terminate Petitioner from her position; therefore they were not required to hold an expedited hearing. Article 21(G)(3) of the CBA refers only to suspension, not termination.

 

Petitioner's last contention is that the arbitrator failed to direct respondent to furnish the student's record so that it could be entered into evidence. Article 21(G)(8) of the CBA states the discovery procedures for arbitration cases. This statue leaves the matter of furnishes the student records at the discretion of the hearing officer. Therefore, Petitioner needs to show that the hearing officer abused his discretion. Petitioner failed to do so.

 

The court concluded by denying the petition to vacate Respondent’s decision to terminate Morrell. The court found that the Respondent’s decision was made in accord with due process and maintained by sufficient evidence. Moreover, the court found “…that the decision was rational and satisfied the arbitrary and capricious standards of CPLR article 78.” Therefore, Petitioner has not met her burden of providing evidence of the invalidity of the arbitration determination. The proceeding was dismissed without costs and disbursements.

 

Read more about this Article 78 case here.

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

Bloomberg recommends Civil Service Law changes

In her recent column Lisa Colangelo of the New York Daily News reported on Mayor Bloomberg's recommendations for how NYC works around Civil Service Law.  The Workforce Reform Task Force report has been assailed by union leaders as promoting a return to cronyism and patronage in the City's workforce.  Read about the Civil Service report.

Name Clearing Hearings

The always informative New York Public Personnel Law blog by Harvey Randall recently had this posting of note:

 

Name clearing hearings
Ortiz v Ward, 546 NY2d 624

The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.

As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.

In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."

Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.

If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.

In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

UFT loses battle to block teacher data release

The UFT's effort to block the release of teacher rating data due to unreliability was denied in Manhattan Supreme Court.  The assigned Judge held that data does not have to be reliable to be released.  A number of new agencies had requested the date under the Freedom of Information Law. Read the decision denying the UFT here.  The UFT has said they will appeal and NYC attorneys have said that  they will not release the data until the appeal is decided.

Court Officer class cancelled

 The Office of Court Administration (OCA) reports that a class of 50 new State court officers was cancelled 36 hours before they were to be sworn in for budgetary reasons.  It is unknown how many would have come to Long Island courts.  Nonetheless, Suffolk and Nassau union officials believe without new officers the courts may become unsafe. 

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.

Read more about this case here.

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NYPD Class Graduates Monday 12/17/10

Newsday reports that 1200 new officers will graduate the NYPD Academy Monday.  The class included Connor McDonald son of NYPD officer Steven McDonald.  Read about the NYPD graduation.

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.

Read more about this Article 78 case here.

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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.

Read more about this Article 78 case here.

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Police applicants Facebooks surveyed by appointing authorities

According to the following USA TODAY appointing police agencies are requesting releases from applicants to review their Facebook pages for negative information.  Read the article here

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.

Read more about this Article 78 case here.

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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.

Read more about this Article 78 case here.

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NYC Sanitation list extended

As reported by Lisa Colangelo of the NY Daily News the list for Sanitation Worker will be extended.  She notes only slightly more than 200 workers have been hired from the list and none since 2008.  Read her article here 

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.

Read more about this Article 78 case here.

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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.”

Read more about this Article 78 case here.

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

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.

Read more about this Article 78 case here.

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

NYC Jobs procedure

 

Advance planning is required for those hoping to get jobs with New York City.  The Department of Citywide Administrative Services (DCAS) serves as the City's Personnel Department and writes, administers and scores the tests given for NYC jobs.  Lisa Colangelo of the New York Daily News writes about City hiring procedures in the following article. click  www.nydailynews.com/ny_local/2010/08/04/2010-08-04_for_civil_service_jobs_think_ahead.html


 
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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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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.

Read more about this Article 78 case here.

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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.

 

Read more about this Article 78 case here.

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

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.

 

 

Read more about this Article 78 case here.

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

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.

 

Read more about this Article 78 case here.

 

 

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

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

 

Read more about this Article 78 case here.

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

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.

 

Read more about this Article 78 case here.

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

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.

 

Read more about this Article 78  case here.

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

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.

Read more about this Article 78 case here.

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

 

Correctional Officer Psychological Screening Program

For those interested in a job with the New York State Department of Correctional Services, there is information regarding the psychological screening program for correction officer trainee candidates here. This document covers an overview of the screening program, lists the psychological tests administered, and explains the rating system. It also provides a breakdown of the number of people tested, number of disqualifications, number of appeals, and number of disqualifications that were overturned.

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.

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.”

 

Read more about this Article 78 case here.

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

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.

Read more about this Article 78 employment case here.

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

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

 

Teachers lose positions but not pay

Since 2006, more than 1,000 New York City teachers have lost their permanent assignments yet remain on the Department of Education payroll. These teachers are referred to as the Absent Teacher Reserve pool (ATRs). They have not lost their jobs due to any wrongdoing but due to school closings or budget cuts. ATRs are assigned to schools across the city to act as substitute teachers or administrative help. The salaries for these ATRs are paid by the department’s central office and not individual schools.

Many ATRs are unmotivated to seek new employment. The last two New York City job fairs only brought in about ten percent of the ATRs invited. Even the school chancellor has admitted that some people just prefer not to work. While the DOE offers financial incentives to schools to encourage them to hire ATRs, the principals do not always get responses from the ATRs they contact to fill positions and sometimes the responses they do get are half-hearted.

New York City expects more teachers to wade into the ATR pool due to budget cuts.

Read the 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.

Orange County enforces Civil Service Law for police titles

The Village of Montgomery and Town of Mount Hope must stop using in-house police ranks and start hiring police supervisors from a competitive list. Orange County has decided not to certify its payroll if they do not comply with Civil Service Law. After a local paper identified village officers as chiefs and sergeants, the Personnel Commissioner began investigating the county’s use of police titles and their non-compliance with state Civil Service Law. The new Commissioner feels that the departments need a supervisor who holds a rank of sergeant or higher and that a police officer should not be filling a supervisory rank. The Village of Montgomery is currently interviewing candidates for a part-time police chief and an additional supervisor.

Read more about this Civil Service 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.

MTA Toll Booth Clerk layoffs averted

Judge Alice Schlesinger has stopped the scheduled toll booth clerk layoffs and will meet this morning with attorneys to discuss the issue.  www.nydailynews.com/ny_local/2010/05/06/2010-05-06_judge_hits_mta_with_restraining_order_barring_layoffs_of_475_token_booth_clerks.html

Civil Service Law S4562

A new Civil Service Bill, S4562, was passed that will change the probationary period for employees of the New York City Health and Hospitals Corporation appointed to a title on the non-competitive class to one year. The current five-year probationary period is considered unfair and unnecessary by many health workers. This new bill shortens the probationary period to one year which should be adequate time for a competent manager to determine that an employee is performing at a competent level and is deserving of the right to a hearing prior to being fired.

Read more about the new Civil Service bill 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.

Canadian Police Prep Video re: Police Psychological Testing

The MMPI2 is one of the standard psychological tests administered to Police Department candidates. Above is an interesting video prepared by a Canadian Police Preparatory school on the MMPI2.

FDNY Certificate of Fitness information

Various occupations require Certificates of Fitness. To read more about the Certificate of Fitness that the Fire Department of the City of New York City issues, you can visit the following website. This website provides information about testing procedures, fees, and the verification process.

Learn more about the FDNY Certificate of Fitness 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.

Indictment suggesting a cover up involving former Greece cop dismissed

Brian Ball, a former Greece Police Sergeant, was accused of falsifying a document in a fatal car crash back in 2005. He allegedly closed the case before the toxicology report on the driver in question was completed. The toxicology test came back positive for marijuana.

Ball appealed and the judge ruled that Ball was not given adequate opportunity to testify on his own behalf in front of the grand jury that indicted him. The judge also found that the people’s case was lacking in substance and that the evidence presented was not sufficient to establish a prima facie case that Ball committed the alleged crimes.

The District Attorney plans to appeal this decision and the family of the 18-year-old woman who was killed in the crash is angry, devastated, and disheartened by the ruling.

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.

Summary of Civil Service Law

The New York State Department of Civil Service has a detailed Summary of Civil Service Law available. To find out more about civil service law, check out this PDF file: www.cs.state.ny.us/pio/publications/summofcsl.pdf.

Exams for Civil Service Jobs posted at DCAS site

For those individuals interested in obtaining job placement for the New York City government, the Department of Citywide Administrative Services created Exams for Jobs.  Exams for Jobs offers schedules of civil service exams, descriptions of jobs and qualifications, and other helpful exam taking information.  Click here to view the Exams for Jobs booklet for more information on exam schedules, locations, and available positions.

 

 

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.

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

 

Late notice of claim allowed by Supreme Court

Michael Picciano v Nassau County Civil Service Commission

The plaintiff in this case was denied appointment as a correctional officer due to his color vision deficiency. The Commission advised him of their decision and informed him that any submissions must be filed within 15 days. 

On November 22 the plaintiff attempted to fight the decision, but the Commission proceeded to inform him that it was too late. In May of the next year the plaintiff file an action against the Commission claiming that his disqualification was unlawful discrimination. He sought restoration to eligibility list, appointment to correctional officer position and damages in the form of lost pay and benefits. 

Plaintiff also filed a late notice of claim which the Supreme Court determined allowable on the basis that the Plaintiff’s uncertainty over whether a notice of claim was needed was enough of an excuse for the Plaintiff’s failure to provide one in a timely manner. The issue was appealed, but it stood that the Supreme Court appropriately exercised its discretion in permitting late notice of claim. 

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.

DCAS offers Computerized Testing Center for Civil Service Exams

 

According to Lisa Colangelo from the Daily News, the Department of Citywide Administrative Services is attempting to ease the process of taking civil service exams. Besides the early Saturday morning written exams DCAS is now operating a Computerizes Testing Center on LaFayette St, in Manhattan where candidates are able to walk in and take tests several times a week. This is an attempt to get the city a greater selection of applicants who can apply on their time. During July five tests are being offered: police officer, correction officer, traffic enforcement agent, environmental police officer, and eligibility specialist. 

After successfully passing the test a list is created by the city that is valid for four years. These tests are being offered in anticipation that the city will have openings in the near future. The best way to find out more about exams is the DCAS website (www.nyc.gov/dcas). There is information on locations and required materials for upcoming tests, promotional tests, and past exams. You are able to apply and pay application fees online and it is also recommended that applicants call 311 or (212) 669-1357 to check schedules.   

Read the article by the New York Daily News Civil Service Reporter 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.

 

CUNY Civil Service Commission

The City University of New York (CUNY) has its own Civil Service Commission.  The commission hears and determines complaints of violations of NYS Civil Service Laws and the CUNY rules and regulations.  The CUNY website is an extensive resourse on the functions of the CUNY Civil Service Commission.  It can be found at web.cuny.edu/jobs/civil-service/ccsc.html.

Further New York State Civil Service Law information can be found at www.sheerinlaw.com/civil

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.


 

Cleveland experiencing some civil service issues

Back in July of 2007, we blogged about some issues that Long Beach was having with provisional appointments in civil service positions. Long Beach is not alone in their struggles, recently Cleveland has been experiencing a similar situation. Much like Long Beach, Cleveland is now fighting a legal battle to determine whether the hiring of civil service employees was done fairly. Cleveland’s Judge McGinty ruled in favor of the employee organizations against the charter amendment that would allow hundreds of municipal workers to keep their jobs without taking any qualifying civil service exams.

You can read more about Cleveland’s civil service feud here.

The ongoing debate about residency requirements for city workers

This week, Lisa Colangelo, writes about the ongoing controversy concerning residency requirements for city employees. Many city workers are no longer required to live within the five boroughs of New York City. All uniformed workers – police officers, firefighters, correction officers and sanitation officers – are allowed to live in the surrounding counties and north in New York State. The city’s largest union, District Council 37, recently won the right to live outside of city limits. Now several other unions, including Teamsters Local 237 and Communication Workers of America Local 1180, are pushing to get residency requirements lifted by ways of a bill, Intro. 992. Some individuals feel that residency requirements should be eliminated all together for the sake of fairness but this suggestion does not sit well with the city.

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.

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.

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.

Civil Service Bookkeeper

Roslyn Rosenfeld has been selling civil service test books for 55 years now at her Civil Service Bookshop at 89 Worth Street in Lower Manhattan. The bookstore offers a wide range of test preparation manuals for every civil service exam imaginable from the more common jobs like police officer and fire fighter to budget examiner and fingerprint technician. Ms. Rosenfeld is worried that she may have to move her shop due to the landlord possibly taking the building in a different direction. Business wise, her shop is doing well since the civil service exams and constantly being given and people come in to buy practice tests and guide books.

Read full article here.

Judge continues stay of West Albany Rod & Gun Club appeal

A Supreme Court Justice decided to extend a temporary restraining order barring Colonie’s personnel chief, Michael Foley, from considering the appeals of two demoted highway supervisors for another ten days. The stay was first issued in December 2008 after the town sough to freeze the process arguing that the supervisors had already appealed their demotions and that Foley had a conflict of interest.

The Town Board demoted these two men in December 2008 and they subsequently appealed to Foley and commenced a lawsuit on the town in Supreme Court alleging that the public works commissioner and not the Town Board had the authority to discipline them. Originally, the supervisors received suspensions without pay for two months which the town then changed to demotions with pay cuts.

The judge wants to prevent Foley from taking any action regarding the appeals until after he has a chance to hear arguments on both the pending lawsuits.

Read article here.

Claim against school district dismissed due to untimely filing

Boakye-Yiadom v Roosevelt Union Free School District

Plaintiff brought about an action to recover damages for breach of contract, promissory estoppel, and defamation. The Supreme Court denied granted defendants’ motion to dismiss the complaint and plaintiff commenced this appeal.

Education Law requires that any complaint against the school district or board of education must be presented to the governing body of said district or school within three months after the accrual of the claim. Therefore, a claim against a school district on an action alleging breach of contract or promissory estoppel based on a contract must be served in a timely manner and since plaintiff failed to serve the notice of claim within three months, the Court properly dismissed the claim.

Accordingly, the Court affirmed the order, with costs.

Read full article here.

End of the year civil service news

New York is holding a Civil Service exam for certain management jobs for the first time in three years. In March 2009, tests for Professional Careers and Professional Careers (Diversity Management) will be held. If you are interested in either of these tests, you must possess a bachelor’s degree or plan to earn one before August 31, 2009 and must register by January 5, 2009. For more details, visit the state Civil Service website here.

College seniors and recent graduates interested in how the city government works should check out New York City’s Urban Fellows Program, sponsored by the Department of Citywide Administrative Services. This nine-month fellowship provides the opportunity to work in various city agencies and the mayor’s office. Individuals interested should submit their applications prior to January 9, 2009. More information can be found on the DCAS website.

For anyone who enjoys a good laugh and supporting children with autism, there will be a comedy show featuring retired city cops and firefighters on January 10, 2009 at The Jeanne Rimsky Theater in Port Washington, Long Island at 7:00 pm. Tickets range from $30 to $75 and all proceeds go to the ELIJA School in Levittown. For more information contact Tim Dwyer at (917) 612-8439.

Read full article here.

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)

Appeal to challenge complaint dismissal involving consulting with union representative denied

Seabrook v City of New York

Petitioner, Norman Seabrook, brought about this appeal to challenge the Supreme Court decision to dismiss his complaint. Employees are not allowed to consult with a union representation after a question is posed and before an answer must be given. The purpose of this policy is to prevent coaching and to encourage truthful responses during an interrogation. The policy does not deprive the employee of his right to representation by his union.

Accordingly, the Court affirmed the order dismissing the complaint, without costs.

Seabrook v City of New York (2008 NY Slip Op 09471)

Action to recover damages for age discrimination by Southold Police Department denied

Tardif v Town of Southold

Plaintiff, John Tardif, brought about an action to recover damages for age discrimination in this appeal of the Supreme Court decision granting defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleged that the Town of Southold and the Town’s police department did not appoint him as a police officer due to discrimination on the basis of his age. Plaintiff argued that he had “the best qualifications” and “the number one test score” on the police officer examination.

Defendants argued that they did not discriminate against plaintiff due to his age but that the reason they did not hire him was because he submitted deceptive responses in his police officer application. The defendants thus established that they had a legitimate, nondiscriminatory reason for not hiring plaintiff. Plaintiff failed to raise triable issues of fact concerning whether he was deprived of his constitutional right to due process, whether he was entitled to a name-clearing hearing, whether he was deprived of a protected liberty interest, and whether he was denied equal protection.

Accordingly, the Court affirmed the order granting summary judgment dismissing the complaint, with costs.

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.

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 75 petition to vacate arbitration in favor of PBA denied

Matter of Town of Wallkill Police Benevolent Association

This Article 75 proceeding was brought about to vacate an arbitration decision that the Town of Wallkill violated the collective bargaining agreement. The issue at hand was whether the Town of Wallkill violated the collective bargaining agreement between it and the Town of Wallkill Police Benevolent Association (PBA) by placing a Town police officer on modified duty and not permitting him to serve overtime following an incident in December 2003. The arbitrator found that the collective bargaining agreement was violated and ordered the police officer be returned to full duty and be compensated for the overtime he was denied. The Supreme Court agreed that vacating the arbitration award would not be warranted since it was not irrational nor did it violate a strong public policy.

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

Police cadet class dropped in an effort to cut costs

Mayor Michael Bloomberg has decided to cancel January’s class of police officers in an effort to bridge billion-dollar deficits. This decision will affect more than 1,000 cadets. The next class will begin in July. This is only one of several extreme measures that Mayor Bloomberg is putting into effect to guide New York City through the economic slowdown that is only just beginning. New Yorkers can expect the city work force to shrink by 3,000 employees – 500 through layoffs and the rest through attrition with 475 job cuts in the education department. Other budget cuts include the firefighter training academy reducing its program time and the Department of Health closing its dental health clinics that serve poor children.

 

Read full article here.

OATH judge dismisses charges against Environmental Police Officers

DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent's were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.

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 75 appeal to challenge decision and suspension granted

Matter of Smith v. New York City Department of Education

This Article 75 case was brought about by Petitioner, Theodore Smith, to challenge the decision and penalty, a one-year suspension without pay. Petitioner was a tenured New York City physical education teacher who had multiple allegations of misconduct, insubordination, incompetence and dereliction. The Arbitrator trying the case found Petitioner guilty of most of the specifications.

 

Mr. Smith challenged this decision, arguing that virtually every aspect of the disciplinary process violated his due process right to a fair and unpartial hearing. Specifically, the performance of the second Arbitrator, Edelman, who made his decision based solely on the transcript of the proceedings before the first Arbitrator. The first Arbitrator recused himself of the case due to an alleged death threat made by Mr. Smith. This information was then passed along to the second Arbitrator. Arbitrator Edelman did not grant Smith a hearing de novo and based his findings on considerations of credibility without seeing and hearing the witness.

 

Accordingly, the Supreme Court granted the petition, vacated the decision by Arbitrator Edelman, and remanded the matter for a new hearing.

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.

City Civil Service Commission

New York City Charter § 813, Chapter 35: Department of Citywide Administrative Services

 

 According to the NYC Charter § 813, the city civil service commission should consist of five members appointed by the mayor from a list of nominations provided by the screening committee. They will serve for overlapping terms of six years and be reimbursed on a per diem basis.

 

 The screening committee that provides the mayor with the mentioned list of nominees consists of six members with knowledge or experience of the civil service system, or personnel management, or compensation practices. Four of these members should be appointed by the mayor and the remaining two appointed by the municipal labor committee.

 

 The commission will appoint a counsel and may appoint a secretary or any other subordinates deemed necessary.

 

 The civil service commission has the power to hear and determine appeals by individuals aggrieved by any action or determination of the commissioner. They may affirm, modify, or reverse the action or determination in dispute. The appeals must be in writing to the commission within thirty days from the date of the action or determination.

 

 The commission has the power and duty to conduct reviews, studies, or analyses of city administrative personnel including the classification of titles by the commissioner.

 

The commission will prepare and transmit departmental estimates directly to the mayor.

 

 

 

Below is the full NYC Charter § 813:

 

LEXSTAT N.Y. CITY CHARTER 813

NEW YORK CITY CODE, CHARTER AND RULES

NEW YORK CITY CHARTER

CHAPTER 35: DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES*

NYC Charter § 813


§ 813 City civil service commission.


a. There shall be a city civil service commission, consisting of five members,
not more than three of whom shall be members of the same political party.
Members shall be appointed by the mayor, from a list of nominations provided by
the screening committee established pursuant to subdivision b of this section,
for overlapping terms of six years. Of the members first appointed, two shall
serve for two years and two for four years and one for six years. The members
shall be removable in the manner provided for members of a municipal civil
service commission in the civil service law. A vacancy in such commission shall
be filled in the same manner as regular appointments for the balance of the
unexpired term. The mayor shall designate a member as chair and vice chair,
respectively, for one-year terms. Within appropriations for such purposes, the
members of the commission shall be reimbursed on a per diem basis for attendance
at regularly scheduled meetings and hearings of the commission.

   b. There shall be a screening committee which shall submit to the mayor a
list of nominees, which shall include persons with knowledge or experience of
the civil service system, or personnel management, or compensation practices,
from which the mayor shall make appointments to the city civil service
commission. Such screening committee shall consist of six members, of whom four
shall be appointed by the mayor and two shall be appointed by the municipal
labor committee. The screening committee shall submit the list of nominees upon
the occurrence of any vacancy on the commission or at least three months prior
to the expiration of the term of any incumbent member.

   c. The commission shall appoint a counsel, who shall not be employed or
retained by any other city agency, and may appoint a secretary and such other
subordinates as may be necessary within the appropriation therefor.

   d. The civil service commission shall have the power to hear and determine
appeals by any person aggrieved by any action or determination of the
commissioner made pursuant to paragraphs three, four, five, six, seven and eight
of subdivision a or paragraph five of subdivision b of section eight hundred
fourteen of this chapter and may affirm, modify, or reverse such action or
determination. Any such appeal shall be taken by application in writing to the
commission within thirty days after the action or determination appealed from.
The commission shall also have the powers and responsibilities of a municipal
civil service commission under section seventy-six of the state civil service
law. In accordance with the requirements of chapter forty-five, the commission
shall promulgate rules of procedure, including rules establishing time
schedules, for the hearings and determinations authorized by this section.

   e. The commission, on its own initiative, or upon request of the mayor,
council, or commissioner, shall have the power and duty to conduct reviews,
studies, or analyses of the administration of personnel in the city, including
the classification of titles by the commissioner.

   f. The commission shall prepare and transmit directly to the mayor
departmental estimates as required by section two hundred thirty-one. The mayor
shall include such proposed appropriations for the commission as a separate
agency in the preliminary and executive budgets as are sufficient for the
commission to fulfill the obligations assigned to it by this charter or other
law.


HISTORICAL NOTES:


   Section renumbered and amended L.L. 59/1996 § 1, eff. Aug. 8, 1996, formerly
§ 812.

   Section amended L.L. 8/1963.

   Section amended at General Election, November 4, 1975.

   Section amended at General Election, November 7, 1989.

   Subds. a, c amended at General Election November 8, 1988.

 

 

Employees treated as "Classified Service"

Commissioner distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee’s tenure status

 

Commissioner of Education distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee’s tenure status
Appeal of Kristine deVente and Jocelyne Jesenof from action of the Broome-Delaware-Tioga Board of Cooperative Education Services, Jennifer Mondolfi and Mary Jo Rankin, regarding termination of employment, Decisions of the Commissioner of Education, Decision No. 15,822, decided August 14, 2008

This decision by the Commissioner of Education illustrates the fact that some “professional positions” established by a school district or a BOCES are not in the unclassified service as defined in Section 35 of the Civil Service Law and are thus subject to the jurisdiction of the responsible civil service commission for the school district or BOCES.

The Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) hired Kristine deVente in 1997 as a part-time “Professional Development Specialist.” The duties of her position involved training teachers, administering a number of BOCES programs and occasional teaching. Effective July 1, 1999, deVente’s position became full-time, and ultimately BOCES granted deVente “tenure” effective August 7, 2002.

On September 16, 1998, the BOCES appointed Jocelyne Jesenof (“Jesenof”) to the position of “Professional Development Specialist” for a three-year probationary period in the tenure area of elementary education. Her duties of her position involved providing multi-cultural educational services and some classroom instruction and she was granted “tenure” effective September 15, 2001.

In 2003 deVente’s position was made part-time (.5) and Jesenof’s position was abolished.

In this appeal to the Commissioner of Education both deVente and Jesenof claim that they have greater seniority in the elementary education tenure area than two other BOCES teachers, Mondolfi and Rankin. They ask that the Commissioner direct the BOCES “to reinstate them to full-time positions in the elementary education tenure area, nunc pro tunc, as of September 1, 2003, along with benefits incident to such reinstatement.”

Although BOCES attempted to have the Commissioner dismiss the appeals filed by deVente and Jesenof as untimely, the Commissioner excused their failure to commence this appeal within 30 days because their delay was due to an attempt to litigate this dispute in court.

This, however, proved to be an illusory victory for both deVente and Jesenof as the Commissioner ruled that neither of them established that they were employed as professional educators within the meaning of Part 30 of the Rules of the Board of Regents. In §30.1(e) of the Rules, a professional educator is defined as:

[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Both deVente and Jesenof conceded that BOCES had appointed them to positions of Professional Development Specialist. The position of Professional Development Specialist, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district. Since petitioners were not employed as professional educators as that term is defined in Part 30 of the Commissioner’s regulations, the protections of that Part do not apply to their employment.

Further, the Commissioner found that neither deVente nor Jesenof established that the work that they performed was in the tenure area of elementary education. Part 30 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975. In regard to the tenure area of elementary education, §30.5 of the Rules of the Board of Regents provides:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area.

Section 30.1(g) of the Rules defines “substantial portion of his time” as:

40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.

While both deVente and Jesenof hold permanent certification in elementary education, the Commissioner said that they never devoted at least 40% of their work time to classroom instruction. Rather, the BOCES employed petitioners in its “Center for Education Support and Technology.” As such, deVente and Jesenof never served in the elementary education tenure area while employed by the BOCES.

Accordingly, said the Commissioner, neither deVente nor Jesenof can now claim that they have more seniority in elementary education than respondents Mondolfi and Rankin.

The Commissioner then commented that “Although I am constrained to dismiss this appeal, I note that when [deVente and Jesenof] commenced their employment with the BOCES, respondent board lacked the authority to offer them tenured positions as Professional Development Specialists. I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.”

In other words, the positions to which both deVente and Jesenof had been appointed jurisdictionally were in the classified service and therefore subject to position classification by the responsible civil service commission and subject to the relevant provisions of the Civil Service Law with respect to appointment, retention and related attributes of such an employment status in the public service.

The full text of the Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15822.htm

Originally published in New York Public Personnel Law by Harvey Randall.

Vehicle owner gets car back with "innocent owner" defense after son pleads guilty to DWI

County of Nassau v. Gazzola

Defendant, Roberta Gazzola’s, son, Christopher, was arrested and charged with Driving While Impaired. He was driving his mother’s car without her permission at the time. According to Nassau County Administrative Code § 8-7.0(g)(4)(a), Christopher was given a “Vehicle Seizure Notice” at the time of his arrest. The County commenced this action seeking civil forfeiture of the vehicle against the Gazzolas and Daimler-Chrysler, the company Roberta purchased the vehicle from. Daimler-Chrysler then filed a cross-claim seeking to repossess the vehicle based on an “innocent lienholder” defense. The Gazzolas then cross-moved for dismissal, claiming to be an “innocent owner”.

 

The County, though able to establish that the car was used in violation of Vehicle and Traffic Law § 1192, failed to establish that Ms. Gazzola gave Christopher permission to use her car, that she had any reason to believe that he would do so or that he would do so in an illegal fashion. The County recognizes that Daimler-Chrysler had a superior right to the vehicle but not over defendant since the circumstances that would have given Daimler-Chrysler the right the repossess the vehicle from Ms. Gazzola were not demonstrated here.

 

Accordingly, the Court dismissed the complaint and all cross-claims. Roberta Gazzola’s motion was granted and it was declared that neither the County nor Daimler-Chrysler had rights superior to her on her vehicle.

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.

Parent's action to dismiss complaint to Child Protective Services dismissed

 

J.H. v. County of Nassau

Plaintiff, J.H., brought about this action against the defendants, Jericho High School, Jericho Union Free School District, et al., claiming that their communications to Child Protective Services (CPS) were motivated by malice and revenge and were not in good faith. According to Plaintiff, he was about to file a complaint with the school Superintendent when the school reported him to CPS. Plaintiff’s son, M.H., was learning disabled and having an exceptionally hard time in his foreign language class and his father was trying to get a language exemption for M.H.

The school psychologist, Danielle Largotta, testified that on November 7, 2003, M.H. came to her office visibly upset and said that he had an argument with his father and did not want to go home because he feared a physical altercation. He was planning on running away to Florida. Also, Ms. Largotta stated that M.H. told her that two years prior, his father threw a baseball at his head, missed his head, and the baseball went through the wall.

The plaintiffs, in opposition, did not have any proof that the school was acting with malice or revenge when they contacted CPS. No physical evidence or facts exist to prove their claims and mere conclusions and speculation is not sufficient for a jury to infer malice.

Accordingly, the Supreme Court granted defendants motion and dismissed plaintiffs’ action.

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.

Porter's instant action discrimination case dismissed

McClellan v Majestic Tenants Corporation

Plaintiff began working for Majestic Tenants Corporation as a doorman in 1984 and later became a porter. In 2005, plaintiff was terminated. Plaintiff alleged unjust termination sought reinstatement to his prior position with full back pay, benefits, seniority, and contributions to the benefit funds lost through his union. The arbitrator decided that there was just cause for plaintiff’s termination which led to plaintiff filing an instant action alleging discrimination and harassment based on his race and age.

Defendants assert that plaintiff’s cause of action must be dismissed because collective bargaining agreements between Local 32B-32J and The Realty Advisory Board on Labor Relations Incorporated (RAB) exclusively require that discrimination claims be resolved by arbitration. The Court felt that under current binding precedent, plaintiff’s complaint must be dismissed because his discrimination claims are subject to the mandatory arbitration provisions outlined in the collective bargaining agreement.

Accordingly, the Supreme Court granted motion by defendants for an order dismissing plaintiff’s action.

Less time in rubber room for teachers accused of misconduct

A deal between the teachers union and education officials was made to reduce the amount of time that teachers accused of misconduct will spend idling in “Rubber Rooms”. A recent analysis found that taxpayers spend about $65 million a year paying the salaries of teachers accused of misconduct. In order to expedite the processing of cases against teachers, the Education Department is increasing the number of arbitrators from 20 to 28, with 14 devoted strictly to cases of alleged incompetence. The goal of this new deal is to improve fairness and timeliness.

Read full article here.

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.

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.

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 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 Challenging Reclassification of Civil Service Job Titles

Matter of Criscolo v Vagianelis

The Supreme Court of New York County granted petitioners’ appeal to review a determination of respondent Department of Civil Service reclassifying certain civil service job titles.

 Petitioners challenged the classification standards issued in October 2006 by respondents revising their job titles within the Department of Corrections. This reclassification would add a duty to conduct tier III inmate disciplinary hearings to the following job titles: education supervisor, plant superintendent, and assistant industrial superintendent. Petitioners contended that this reclassification was inappropriate and conflicted with the duties of their civil service titles. Supreme Court rejected these contentions and dismissed the petition resulting in this appeal by petitioners.

 The Division argued that the job titles were in need of updating and that the standardized nature of the tier III hearings combined with procedural safeguards that are in place would allow for hearings to be conducted by non-attorneys. The proposed new standards set forth many changes and among them were requiring the employees to occasionally conduct tier III hearings.

 The Division may not utilize reclassification as a means of validating out-of-title work and this appears to be the case. The Governor’s Office of Employee Relations issued determinations in August 2006 ruling that the duties of conducting tier III disciplinary hearings constituted out-of-title work. The Division was attempting to indirectly do what it is prohibited from doing directly.

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

Order to Show Cause to Withdraw Resignation denied

Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

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.

The NYPD Department Advocate's Office "Civilianized"

A recent article in the New York Law Journal reported that the NYPD Department Advocate’s Office is now “civilianized”. The Department Advocate’s Office, which prosecutes officers in courtroom hearing before administrative law judges, is now composed of veteran litigators recruited primarily from the offices of district attorneys and the Legal Aid Society.

 Traditionally, the advocate’s office has been staffed by police officers straight out of law school. In 2005, Commissioner Raymond Kelley hired Julie Schwartz, former chief of the Sex Crimes and Special Victims Bureau at the Brooklyn District Attorney’s office, to alter the public perception of the advocate’s office. Ms. Schwartz’ aim was to “professionalize” the advocate’s office as a legal agency.

 This effort to bring credibility to the department has given way to a plethora of benefits to the parties involved. Officer-lawyers pursuing criminal charges against fellow police officers were commonly referred to as “rats” and most officers did not desire the position of a rat. Now, with the shift to civilian attorneys, more police officers are back out on patrol. A handful of the 25 lawyers under Ms. Schwartz command are uniformed police officers but these individuals do not have caseloads nor do they try cases.

 Positive statistics show prove an “improvement of the quality of service” provided by the civilian lawyers. In the past three years, since Ms. Schwartz’ reform, trials have gone down and negotiations have gone up. This means that the NYPD advocate’s office is being more careful about what they bring to trial. Also, fewer dismissals mean more credibility with the public and fewer cases brought to trial mean less unnecessary anxiety for police officers.

 Read entire article here.

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

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.

Summary New York State Civil Service Commission

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.

Section 75 case dismissed- Misconduct due to Mental Disability Section 72 applies

NYC Human Resources Administration v. Barnes

 This Office of Administrative Trials and Hearings (OATH) case was decided by ALJ Alessandra Zorgniotti on November 15, 2007.   Human Resources Administration (HRA) filed charges under Section 75 of the Civil Service Law against the respondent Barnes. Ms. Barnes had been involuntarily committed by her son and did not appear at the hearing. 

The issue was whether the misconduct which resulted in charges being filed by HRA against Ms. Barnes was the result of a mental disability.  Trial testimony revealed that after the death of her child’s father and her mother Ms. Barnes behavior took a radical turn for the worse.  Respondent had been previously described as “warm; soft spoken and respectful.” 

The Court held that the evidence proved that the misconduct was the result of a mental disability and that HRA should have filed an action under Section 72 of the Civil Service Law rather than Section 75. Finally, the ALJ held that OATH could not convert a disciplinary hearing to a disability hearing  in the respondent’s absence but left HRA the option to proceed under Section 72 for a disability leave. 

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.

Arbitration agreement in CBA violates Civil Service Law

                          City of Long Beach v. Civil Service Employees Association

This Court of Appeals case centered on whether or not issues submitted by the Civil Service Employees Association were subject to arbitration.

This the history of the case includes a report issued by the New York State Civil Service Commission in the year 2004 noting that Long Beach had poor control over its provisional appointments in the civil service. Most importantly several positions in the competitive class have been filled with provisional appointments and one had been filled provisionally for a total of 19 years.

The city determined that the provisional appointments violated Civil Service Law and terminated the employees. The CSEA filed grievances and demanded arbitration alleging that the employees were tenured.

The city brought an action to stop the arbitration. The Supreme Court granted the motion to stay the arbitration and the Appellate Division affirmed. Their reasoning behind the decision is that a provision in the Collective Bargaining Agreement to arbitrate these disputes violated Civil Service Law.

Citing Civil Service Law section 65 (1) the court found that provisional appointments are allowed when there is no eligible list available for filling a vacancy in a competitive class and then for only a maximum of nine months. Furthermore, once a provisional employee has been in a position four months the City must hold a Civil Service examination. Section 65 allows no tenure to provisional employees and the collective bargaining agreement between the city and the C. S. E.A. is meaningless in light of the Civil Service Law.