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

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.

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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

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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/

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