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

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.

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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.

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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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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.

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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.

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