Posted on September 14, 2010 by Kevin Sheerin

NYPD Prior Probationary Service Counts Upon Reinstatement

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The petition was granted and the decision terminating petitioner was vacated and rescinded.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.

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

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Posted on July 21, 2010 by Kevin Sheerin

Court Stands Firmly on Decision to Deny Petitioner's Application for Accidental Disability Retirements Benefits

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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Posted on July 15, 2010 by Kevin Sheerin

Nassau PD physical test disqualification upheld

 

Thursday, July 15, 2010

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

 
An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]

The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.

The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.

Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.

However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.

Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."

"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.

After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm

 

This post was original published By Harvey Randall, Esq., The Public Employment Law Press on Thursday, July 15, 2010

 
 

 

 
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Posted on May 6, 2010 by Kevin Sheerin

Orange County enforces Civil Service Law for police titles

The Village of Montgomery and Town of Mount Hope must stop using in-house police ranks and start hiring police supervisors from a competitive list. Orange County has decided not to certify its payroll if they do not comply with Civil Service Law. After a local paper identified village officers as chiefs and sergeants, the Personnel Commissioner began investigating the county’s use of police titles and their non-compliance with state Civil Service Law. The new Commissioner feels that the departments need a supervisor who holds a rank of sergeant or higher and that a police officer should not be filling a supervisory rank. The Village of Montgomery is currently interviewing candidates for a part-time police chief and an additional supervisor.

Read more about this Civil Service Law case here.

To read about more 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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Posted on November 4, 2009 by Kevin Sheerin

Indictment suggesting a cover up involving former Greece cop dismissed

Brian Ball, a former Greece Police Sergeant, was accused of falsifying a document in a fatal car crash back in 2005. He allegedly closed the case before the toxicology report on the driver in question was completed. The toxicology test came back positive for marijuana.

Ball appealed and the judge ruled that Ball was not given adequate opportunity to testify on his own behalf in front of the grand jury that indicted him. The judge also found that the people’s case was lacking in substance and that the evidence presented was not sufficient to establish a prima facie case that Ball committed the alleged crimes.

The District Attorney plans to appeal this decision and the family of the 18-year-old woman who was killed in the crash is angry, devastated, and disheartened by the ruling.

Read full article here.

To read about more 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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