New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

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

 

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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

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

Read full article here.

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

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

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

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

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

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

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

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

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Click above to download free Article 78 EBook.

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

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