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 Colon v. Kelly

          Petitioner is the widow and beneficiary of a former Detective of the NYPD.  Petitioner brought proceedings under Article 78 seeking to annul the decision of The Board of Trustees of the Police Pension Fund that denied petitioner accidental death benefit. 

          Petitioner’s spouse performed “rescue, recovery, and clean up operations at Ground Zero for over forty hours” following September 11, 2011.  He was then diagnosed with esophageal cancer after doctors discovered a tumor, he then past away in August of 2003. 

          The Medical Board had denied the petitioner’s application for ADB stating that “based on the size of the tumor, Titus’ cancer predated his work at Ground Zero.” 

          Administrative Code of the City of New York requires that ADB is available to a widow of a deceased police officer when the death was caused by an accident in the line of duty and not the consequence of negligence by the deceased.  “WTC presumption” is available to any member of the NYPD that participated in the WTC “rescue, recovery, and clean-up” and later “dies from a qualifying World Trade center condition … unless the contrary can be proven by competent evidence.”  Administrative Code 13-252.1(3). 

          Respondents’ maintain that the Medical Board used its own expertise to conclude that “cancer grows over a period of years and not months.”  Respondent’s state that the deceased’s cancer couldn’t have been caused by exposure to WTC.  As well, that asbestos does not negatively affect esophageal cancer. 

          The Medical Board failed to provide any scientific evidence about its conclusion.  As well, they failed to discuss the likelihood that the deceased could have been exposed to other cancer causing substances that could have made his condition worse. 

          Petition is granted, the decision by the PPF to deny petitioner ADB is annulled and it is further ordered that the matter is remanded to a fresh Medical Board for a new determination. 

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Matter of Griffiths v Kelly

            Article 78, petitioner Gale Griffiths sought to appeal the decision denying her an accident disability retirement. 

            Griffiths was a member of the NYPD from July 5, 1989 until her retirement on August 25, 2010.  She sustained an injury on February 24, 2009 when the petitioner tripped over an extension cord to the heater in an office at the Queens Family Court in Jamaica.  The Command Supervisor provided an injury report stating that the petitioner tripped over the extension cord and fell into the file cabinets injuring her neck, right arm and right shoulder.  The Investigating Supervisor found that the petitioner was in “proper performance of official police duty.” 

            On March 8, 2010 the petitioner filed an ADR allowance application in accordance with Administrative Code 13-252 in reference to the injury sustained on February 24, 2009.  She alleged this event caused consistent pain and consequently decreased her range of motion and mobility. 

            Police Officer Gumiela responded to the incident on February 24, 2009 but, did not write her report until May 20, 2010 stating that “Det. Griffiths stated to me that she tripped on the extension cord that was attached to the heater. This heater is normally under the desk. I can only surmise that it was moved by the night time cleaning crew and they failed to put it back under the desk.”

            On May 12, 2010 the PDF Medical Board approved the petitioners ADR application. 

            On July 14, 2010, the Board of Trustees held a meeting where Elizabeth Botwin, trustee for the New York City Department of Finance, conveyed her opinion that the petitioner should have seen the extension cord.  And that the statement that the heater had been moved by the cleaning crew was made over a year later and not aligning with the accounts from the day of the injury.  On September 8, 2010 the Board of Trustees denied the petitioners ADR application in a 6 to 6 tie, stating that the “incident was not an “accident” for pension purposes.”

            The petitioner commenced in an article 78 stating that the Board of Trustees’ decision was arbitrary and capricious.  That the petitioner had proved that she had been injured in an “accident.”

            It was argued that the Board of Trustees’ decision was based upon evidence.  That the injury occurred not because of a sudden event but because of an “incident that was an inherent hazard of performance of police duties and her own misstep.”

Discussion

            The petitioner must prove “that he or she suffered physical or mental incapacitation as a natural and proximate result of an accidental injury received in city-service and that such disability was not the result of petitioner’s own willful negligence” in order to acquire accident disability retirement benefits. 

            The City respondents dispute that (1) the evidence did not consider the injury an “accident” by law and (2) the affidavits supplied by Griffiths and Gumiela were not in alliance with the evidence from the date of the injury and were dismissed by the Board of Trustees. 

            The court found that there was an “accident” in accordance within the New York City Administrative Code 13-252.  There is no evidence that the injury occurred because of the petitioner’s willful negligence.  “Griffiths’ fall was sudden, unexpected, and out of the ordinary in that one would not normally expect an extension cord to be laying on a floor where people are walking in an office room.”

            The petition is granted in annulling the findings of the Board of Trustees against the petitioner and the matter was remanded to the Board of Trustees.

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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

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www.sheerinlaw.com/pdf/sheerinlaw.com-Appealing_a_DQ_eBook.pdf

Click above to download Ebook.

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At least four former NYPD officers are currently suing the Department over their termination after receiving false positives from hair drug testing. One of these individuals is Roxann Hayes, a former NYPD Detective who tested positive for cocaine in a hair drug test. NYPD’s zero-tolerance drug policy resulted in Ms. Hayes losing her job and pension. According to her lawyer, Ms. Hayes’ sample was subject to cross-contamination and this error has caused her not only her job but also the ability to find a new employment.

In August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. This led to a hearing at the Board of Collective Bargaining in 2006 and eventually was heard in Supreme Court December 2007. The end result was that the NYPD must bargain with the police unions before implementing changes in drug-testing procedures.

Unfortunately, even after the ruling, former police officers who were affected by the new, now invalid, hair testing are still out their jobs. Some are suing for reinstatement.

Read full article here. (Subscription Required)

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Matter of Antonio Cardona v City of New York Civil Service Commission

Petitioner, Antonio Cardona, brought about this Article 78 proceeding to vacate his disqualification for appointment as a Police Officer with the New York City Police Department (NYPD).

Petitioner passed the written portion of the exam and was placed on the eligible list for a position as a police officer but then failed three pure tonal hearing tests and was subsequently disqualified. Petitioner filed an appeal and submitted two medical reports. Both doctors stated that they did not feel that Mr. Cardona’s mild hearing loss in his left ear would interfere with his ability to perform the duties of a police officer. The Civil Service Commission reviewed this case and affirmed the NYPD’s decision to disqualify Petitioner. Petitioner then filed this Article 78 appeal to review the determination.

Petitioner argued that the pure tonal hearing test administered by the NYPD was not rationally related to the duties of a police officer and that his disqualification violated New York Executive Law § 296, prohibiting discrimination against an applicant based on a disability.

The Court disagreed with Mr. Cardona’s first argument and felt that the use of a pure tonal test was related to police officer functions in that is serves to set a hearing standard for applicants. In response to Petitioner’s accusations of discrimination, the Court agreed. Since Petitioner did have a disability under Executive Law § 296, the NYPD needed to prove that his hearing loss would prevent him from performing in a reasonable matter. NYPD would need to conduct an individualized test and since they merely relied on the results of three pure tonal hearing tests, they only proved Petitioner suffered from a hearing disability, not that he was unable to perform the duties of a police officer. Plus the reports from Petitioner’s two doctors and seven affidavits from current and retired NYPD officers all stated that he would be an effective Police Officer.

Accordingly, the Supreme Court granted petition and remanded this matter to the New York City Police Department to make an “individualized” determination consistent with Executive Law § 296.

Read article here.

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Yesterday, Osvaldo Hernandez was granted relief from civil disabilities putting him one step closer to his goal of becoming a New York City police officer. Hernandez served a 15-month combat tour as a U.S. Army paratrooper in Afghanistan and wants to continue serving the community by joining the NYPD. Unfortunately, Hernandez has a felony record. At the age of 20, he was charged with gun possession and spent eight months in jail. Convicted felons cannot carry weapons in New York State which would prevent Hernandez from working as a police officer. With his certificate from the Board of Parole, Hernandez can now be armed and apply for the NYPD. The final decision as to whether or not Hernandez is hired is now in the hands of Police Commissioner Ray Kelly.

Read full article here.

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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.

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