Taxi and TLC Licensee cases at OATH

The New York City Office of Administrative Trials and Hearings has published an ebook entitled Taxi and TLC-Licensee cases-A Guide to Your Hearing at the OATH Tribunal.  Some of the areas covered in the ebook are: Arrest: Fitness; Compliance: Overcharge: Passenger Complaints and Accidents affecting proposed transfer of a Medallion.  This concise and straight forward guide is a good place to start if you have an upcoming case at OATH.  Click here to get a copy of the OATH Taxi and TLC license case ebook. To speak to me regarding your case please call toll free (888) 998-9984.  

To read about criminal defense services offered by my office please see lidwiattorney.com

Nassau Court Officer denied disability pension

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

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

Department of Environmental Protection Did Not Properly Execute Rules to Hold Sewage Treatment Worker Responsible for Misconduct

Department of Environmental Protection v. Segarra

 

          The petitioner, Department of Environmental Protection, sought an employee disciplinary proceeding, pursuant to section 75 of the Civil Service Law against respondent, a senior sewage treatment worker.  Respondent was charged with neglecting his duties concerning the taking of water samples. 

          In order to punish a civil service employee for misconduct, “there must be some showing of fault on employee’s part, either that he acted intentionally or negligently.” 

          Charges for the first incident alleged that the respondent failed to follow procedure when a contact tank is out of service.  Superintendent stated that a memo, entitled “Plant Effluent Auto Samples When Contact tank is O/S” was posted on the date of the incident “in the lab.”  Respondent stated that he did not see this memo before the incident. 

          “It is well settled that actual or constructive notice of the rules of employment is required before an employee can be held liable for violating an employer’s rule or regulation.”

          The ALJ established that because the respondent was not notified of the controlling procedure he can not be held responsible for violating the rule.  Petitioner argued that the respondent should have sought a superior’s guidance.  ALJ found this to be an unintentional error by the part of the respondent.  “Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct.”  Therefore, the charges concerning incident one were dismissed. 

          On the second incident, hypo interruption due to loss of power, protocol was not followed by respondent.  Respondent had asked if it was necessary to take fecal samples in addition to the required chlorine residual samples every 15 minutes due to the hypo interruption.  Because they had not fallen below .5, respondent determined that the sample was not necessary.  Respondent’s subordinate did not log the readings as protocol, respondent counseled him in the necessity of doing so. 

          Respondent stated that he should not be punished as he was following the recent training where a fecal sample should be taken when the chlorine residual is under .5 mg/L.  Petitioner could not prove that the respondent was given the accurate information, that the fecal sample should be taken when the chlorine residual is at or under .5mg/L.  As well, the ALJ stated that a supervisor can not be held strictly liable for the acts of his subordinates.  Therefore, the ALJ found the charge was without merit. 

          ALJ recommended that all charges be dismissed.

          The Commissioner agreed with the ALJ recommendation except concerning the first incident.  Commissioner found that respondent was careless and even negligent.  Where a subordinate asked for guidance, “Giving his subordinated inaccurate instructions that run afoul of the Agency’s regulatory commitments is not reasonable.”  The Commissioner recommended a 6 day suspension without pay. 

Dep't of Environmental Protection v. Segarra (in PDF)

 

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.

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

 

Petition Dismissed Due to Four Month Statue of Limitations

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

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

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

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

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

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

Read more about this Article 78 case here.

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

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.

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

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.

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

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.

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

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; 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.