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

Department of Sanitation v. Perez

          Employee disciplinary proceeding was brought about by Petitioner, Department of Sanitation pursuant to Section 16-106 of the Administrative Code.  Petitioner charged respondent, a sanitation worker, with being absent without leave and out of residence during supervised sick leave.

          Respondent was charged with being AWOL, for failing to report to work and failing to call in.  Respondent did not deny this charge.  This was respondent’s 13^th such absence in a 12 month period. 

          Respondent was charged with being away from the home without authorization while being on supervised sick leave.  Respondent claimed that he was home but, the Court believed that the Investigators testimony, who had gone to respondent’s home to make sure he was at home during his sick leave, was more credible than respondent’s denial. 

          Respondent was charged with: “Charge No. 8475 is sustained in that, … respondent was absent without authorization, in violation of Department rules.”  As well “Charge No. E156891 is sustained in that, … respondent was absent from home during supervised sick leave, without authorization, in violation of sick leave rule.” 

          Respondent had been a sanitation worker since 2000.  Since that time respondent has been disciplined on 10 separate occasions concerning time and leave violations.  He had “unsatisfactory” overall evaluation in 2008 and 2009 due to these violations. 

          Respondent acknowledged his disciplinary issues concerning time and leave and said that it was due to child care difficulties.  In 2009, he filed for hardship and was given a new work shift for nights to alleviate this burden.  He had less absences and had improved his sick leave status to the A category, from the chronic absence or C category. 

          The court found that although there were disciplinary issues in the past, they did not warrant termination.  Since the respondent had reversed a pattern of poor performance in his time and attendance since the commission of the misconduct two years ago. 

          The ALJ therefore recommended a 30 day suspension for the misconduct proven, which should adequately address the need for progressive discipline. Dep’t of Sanitation v. Perez (in PDF),

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Matter of Kolmel v City of New York

          Petitioner seeking to annul the determination of the City of New York Department of Education, denying certification of completion of probation and terminating employment as a probationary teacher, as well as denying his appeal of petitioner’s “U” rating for the 2008-09 school year. 

          The Court decided to unanimously reverse and the petition was granted annulling the “U” rating and remanding the matter to the DOE for proper completion of the final review and recommendation.

          Petitioner was a probationary teacher for three years, receiving satisfactory reviews and reports for each school year.  Petitioner agreed to extend his probationary period into the 2008-09 school year.  This year he received two unsatisfactory and satisfactory classroom reports.  The principal gave him an unsatisfactory rating for each category within the year-end report resulting in a U-rating for the 2008-09 school year.  Petitioner was then denied certification of completion of probation which required his termination and disallowed him from being hired elsewhere in the City.

          Although petitioner’s unsatisfactory reviews within the 2008-09 school year could suffice as rational support that he had not developed enough to be a proficient teacher, there is evidence that proves other.

          Petitioner submitted evidence that the principal, who made the final determination of the “U” rating for the 2008-09 school year, did not observe the petitioner’s teaching within his last two years of teaching.  This violates the DOE’s rules when considering teachers reviews, that require at minimum one observation (by the principal) and pre-observation meetings with probationary teachers in danger of “U” ratings.  The principal’s year end evaluation was without evidence and seemed arbitrarily completed.  A current DOE employee submitted a statement that the principal would pressure assistant principal’s into giving undeserved “U” ratings without observation.  “These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process.” 

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Matter of Wydra v City of Rochester

Petitioner was terminated from employment as police officer, and discontinued payment of benefits.

Petitioner experienced depression and anxiety due to, at least in part, by work-related incidents.  It was improper to further analyze whether she suffered from PTSD.  The decision that the petitioner’s disabilities were not caused by job duties and that the petitioner should not be eligible for benefits under the City Charter’s equivalent of section 207-c lacked substantial evidence.  The petitioner’s termination as being caused by absences due to a non-work injury, must be annulled as it is proved here that it is a work-related injury.  

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In the Matter of John Dickinson v New York State Unified Court System, Office of Court Administration

Pursuant to Article 78, Petitioner, John Dickinson, seeks to annul the determination of Respondent, Office of Court Administration (OCA), to terminate Petitioner.

John Dickinson, Petitioner, was an Associate Court Clerk for OCA. He was terminated from his position on May 24, 2010 due to charges of excessive absence from work and excessive lateness. A written Report and Recommendation dated April 24, 2010 was submitted by Deputy Chief Administrative Judge Joan B. Carey. According to the Report, “…pattern of excessive absence and latenesses demonstrates in crystal clear fashion his [Petitioner] lack for fitness in this job title.”

Petitioner sought to annual OCA’s decision to terminate him because the Administrative Judge took into consideration additional time sheets that were submitted in OCA’s Brief but not presented at the hearing. Petitioner contends that this was a “manifest violation of due process” and that the penalty of termination was cruel. Petitioner also “…argues that the questions presented here is where there was substantial evidence in the record to support the Report, so as to require that this petition be transferred to Appellate Division, First Department, for consideration under CPLR 7804(g).”

CPLR 7804(g) states that issues of substantial evidence raised in a hearing are required by law to be transferred to the appellate division and “…Article 78 prohibits the Supreme Court from reaching the issue of whether an agency determination is supported by substantial evidence,” and requires the petition be transferred to the Appellate Division.

The Judicial Hearing Officer had an abundance of documentation as to petitioner’s transgressions, therefore the additional documents submitted after the hearing did not really play any part in the decision of termination. So, “the only matter before this court is whether the JHO’s determination that petitioner was excessively absent or late so at to warrant the penalty of termination, is supported by substantial evidence.

Therefore, it is ORDERED that this issue be transferred to the Appellate Division, First Department, for review and determination.

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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Court Confirms Petitioner’s Termination for Misconduct.

Matter of Gibbons v. New York Unified Ct. Sys., Off. of Ct. Admin.

In this Article 78 case, Petitioner, Grace Gibbons, sought review of Respondent’s decision that found her guilty of incompetence and misconduct and terminated her employment.

Gibbons was a court reporter for the District Court in Nassau County for approximately 22 years. In May 2007, Respondent served Gibbons with a notice of disciplinary charges. At the hearing, the Office of Court Administration (OCA) stated that Petitioner was insubordinate to supervisors and a District Court Judge, failed to produce transcripts in a timely matter, and was excessively absent without sufficient notice, which left the District Court short notice to find a replacement.

In December 2008, the hearing officer recommended that Petitioner be terminated from his position. A few months later, on February 4, 2009, the Deputy Chief Administrative Judge found the Petitioner guilty of the misconduct and incompetent in at least 20 specifications. Thereafter, Gibbons was terminated.

In an Article 78 proceeding, the Appellate review is limited to whether that determination was supported by substantial evidence. Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” and “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists.”

The Appellate Division found that the decision was supported by substantial evidence and the penalty of termination did not shock one’s sense of fairness.

The determination was confirmed, the petition is denied, and the proceeding is dismissed on the merits, 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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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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Matter of James Johnson v Town of Amherst

In this Article 78 case, petitioner sought to annul the determination of the Town of Amherst terminating his employment for failure to meet the residency requirement of the Town Code. Employees are required to be domiciliaries of the town which means they must have a permanent home in Amherst. Respondents presented evidence at the hearing which established that petitioner’s family lived in a home in Elba, New York. Additionally, petitioner listed this address in Elba on his income tax forms and admitted that he had no intention of moving to Amherst and only established residency with the Town to comply with the requirements of his employment. Therefore, the Court must agree with the decision of the Town of Amherst that petitioner is a domiciliary of Elba and thus the Town’s decision is supported by substantial evidence and must be upheld.

Accordingly, the Supreme Court confirmed the determination and dismissed the proceeding without costs.

Read more about this Article 78 employment 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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Matter of Jeffrey Baker v Poughkeepsie City School District

Petitioner, a Business Manager for the Poughkeepsie City School District, brought about this Article 78 proceeding to review a determination of the School District adopting the recommendation of a hearing officer which found petitioner guilty of eight charges of misconduct and incompetence and terminated his employment.

In July 2007, petitioner was charged with eight counts of misconduct and incompetence and subjected to a disciplinary hearing where two members of the Board testified. The hearing officer found the petitioner guilty of all the charges brought against him and recommended termination. The members of the Board then issued a final determination terminating the petitioner’s employment which resulted in petitioner bringing about this article 78 proceeding.

The two Board members that testified at the disciplinary hearing were personally involved in the matter and should have disqualified themselves from reviewing the recommendation and being involved in the decision of this matter. Also, the petitioner is entitled to pack pay and benefits regardless of whether he is terminated or not.

Accordingly, the Court granted the petition, annulled the determination, with costs, and remitted the matter to the Board of Education for a review of the findings of the hearing officer and a determination of the back pay amount and benefits owed to the petitioner.

Read more about this Article 78 termination 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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Matter of Lisa Capece v Margaret Schultz, as Community Superintendent of Community School District 31

Petitioner brought about this Article 78 proceeding to review a determination of Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education terminating petitioner from her position as a probationary public school teacher. Petitioner began teaching in 2005. Her probationary term was supposed to end in 2008 but she was allegedly coerced into an “Extension of Probation Agreement” in 2007 which extended her probationary period by one year to allow petitioner to demonstrate improvement in her alleged areas of difficulty. During the extended probationary period, petitioner received two unsatisfactory evaluations. She was also required to attend several disciplinary meetings due to alleged instances of misconduct for violating the school’s telephone policy and altering the program schedule without prior permission. Due to these incidences, the Superintendent notified petitioner of her termination. Petitioner then appealed this decision to the Department of Education’s Office of Appeals and Reviews. A hearing was held and the recommendation to discontinue petitioner’s probationary service was upheld. The Superintendent re-affirmed her decision and petitioner commenced this Article 78 appeal.

Petitioner alleged in her petition that she was the victim of harassment and discriminatory treatment in retaliation for her union activities. She argued that she had received only satisfactory reviews until she became involved in activities as the union co-chapter leader. Petitioner even filed a complaint with the Chancellor of the Department of Education asserting that she was being subjected to harassment but the complaint was denied due to lack of evidence. Respondents maintain that a probationary employee can be terminated at will and since petitioner’s record show unsatisfactory work performance and misconduct, the termination was not made in bad faith.

The Court feels that petitioner met her evidentiary burden of producing sufficient evidence to raise a material issue of fact regarding whether or not her termination was made in bad faith as a retaliatory measure to punish her for her activities in the local teachers’ union. The evidence shows that the unsatisfactory performance evaluations and alleged incidences of professional misconduct occurred only while petitioner was engaged in union activities and therefore the retaliatory nature of petitioner’s termination cannot be determined on the facts so far provided. The Court feels that judicial review is mandated and the matter must proceed to trial.

Accordingly, the Court granted the petition to the extent that the parties must appear for a preliminary conference. The trial date for this case is still pending.

Read more about this Article 78 termination 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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In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

Read more about this Article 78 termination 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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Matter of Kevin Cummins v New York City Department of Education

Petitioner brought about this Article 78 proceeding to appeal his termination by the New York City Department of Education, claiming it was arbitrary and capricious and made in violation of his right to due process.

Petitioner began working for the Department of Education in 2000 as a non-tenured teacher. In March 2008, he was accused of corporal punishment and sent to a reassignment center. Later that year he was denied his Certification of Completion of Probation and it was recommended that his license be terminated. The Department of Education’s reason for termination was two unsatisfactory classroom observations, two allegations of verbal and corporal abuse, and a history of lateness. At the hearing, the Chancellor’s Committee upheld the recommendation to deny certification. Petitioner then commenced this Article 78 appeal to annul the determination.

Petitioner argued that he was not allowed to call witnesses to his hearing and therefore the determination to terminate his employment should be annulled but he did not raise this objection at the time of the hearing and therefore it cannot be considered for the first time in reviewing the administrative proceeding.

Since petitioner was a probationary employee and probationary teachers can be terminated at any time during the probationary period for any reason and petitioner failed to establish that the Department of Education’s determination was arbitrary and capricious or an abuse of discretion, the Court must uphold the respondent’s decision.

Accordingly, the Supreme Court denied the petition and dismissed the proceeding.

Read more about this Article 78 NYC Department of Education appeal.

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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Matter of Bruce Harris v Department of Education of the City of New York

In this Article 78 appeal case, petitioner sought to challenge respondents’ determination terminating petitioner’s employment as a New York City school teacher and to gain reinstatement of his employment with back pay and benefits. After a hearing, petitioner, a tenured teacher, was ordered by respondent, Department of Education’s Hearing Officer, to serve a six-month suspension and complete sexual harassment training before he would be reinstated to his position. No evidence exists to suggest that petitioner’s rights were violated. Ten months post-hearing petitioner still had not completed the ordered sexual harassment training which resulted in his termination. Petitioner argued that he was due a second hearing prior to termination but raised no factual issue over the completion of the directed training.

Accordingly, the Supreme Court affirmed the judgment granting respondents’ cross motion to dismiss the petition and dismissing the proceeding.

Read more about this Article 78 termination appeal.

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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Matter of Peter Peltonen v Nicholas Scoppetta, Fire Commissiner of the City of New York, the Fire Department of the City of New York and The City of New York

Petitioner commenced this Article 78 appeal to annul the determination of Respondents terminating Petitioner’s employment as an FDNY fire fighter due to cocaine usage. Commissioner Scoppetta reviewed and accepted the recommendation of the Administrative Law Judge (ALJ), terminating Petitioner’s employment after he tested positive for cocaine during a routine drug screening. Petitioner argued that his termination was arbitrary and capricious and that his case was not handled in accordance with FDNY regulations.

Petitioner asserted that his alcoholism and cocaine usage was a result of his service following the attacks on the World Trade Center. Petitioner worked as a fire fighter to help in the rescue and recovery efforts and said the trauma of the daily stressed caused him to seek out a stronger drug than alcohol. Dr. John McCann, a clinical and forensic psychologist, diagnosed Petitioner with Post-Traumatic Stress Disorder (PTSD) and felt that the alcohol abuse and cocaine usage were effects of the PTSD. Petitioner also asserted that he suffered from a “disability” and therefore should not be fired.

Respondents argued that Petitioner’s use of cocaine was occasional and voluntary. Since he was able to exert self-control in the frequency of his cocaine use, his usage was a voluntary act of misconduct. Dr. McCann did not diagnose Petitioner with alcohol or drug dependency. Additionally, Petitioner used alcohol as a teenager and his alcohol use became a problem 2 years prior to 9/11. He also first used cocaine prior to 9/11.

The Court agreed with Respondents assertions that Petitioner’s drug usage was voluntary and felt that Petitioner failed to provide substantial evidence to prove otherwise. Since the purpose of the Court in an Article 78 appeal is to determine whether the action of an administrative agency had a rational basis, the Court found that the ALJ had sufficient evidence of Petitioner’s misconduct and that the penalty of termination was not shocking to one’s conscious.

Accordingly, the Supreme Court denied the petition.

Read more about this Article 78 appeal of a termination.

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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Former Saranac Lake Police Chief Donald Perryman was involved in a cover up involving two police officers who were in a car accident on their way home from a training seminar. The officers admitted to drinking that afternoon. Perryman directed another officer to drive the two officers home, arranged to have the car towed from the scene of the accident and did not compel the officers to submit to alcohol testing. Perryman has been charged with 12 counts of misconduct. He filed an Article 78 appeal following his termination claiming that the hearing board’s decision was arbitrary and capricious. The state appeals court dismissed Perryman’s claim and upheld the ruling of the board.

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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Mitchell Barandes v New York City Department of Education

Petitioner, Mitchell Barandes, brought about this Article 78 appeal to enjoin the New York City Department of Education from enforcing termination of petitioner, to declare that he had acquired tenure by estoppel, and to order a disciplinary hearing or a name-clearing hearing.

Petitioner’s argument that he had acquired tenure by estoppel was proved false because he had not earned sufficient credits as a substitute teacher to reduce his probationary period. Petitioner’s argument that respondents acted in an arbitrary and capricious manner was also unfounded because he failed to present any evidence to support this allegation. In fact, respondents noted that petitioner had been on notice that his teaching performance was unsatisfactory since December 2007. The decision to terminate petitioner was not in bad faith and was supported by three unsatisfactory observations and an incident of misconduct. Since petitioner was not a tenured employee he is warranted a disciplinary hearing. In regards to the demand for a name-clearing hearing, the materials contained in petitioner’s personnel file are not stigmatizing but instead describe instances of bad judgment or incompetent performance of duties.

Accordingly, the Supreme Court denied petitioner’s motion for an order enjoining respondent from enforcing its determination discontinuing petitioner’s probationary service, denied the petition and dismissed the proceeding.

To read further on this topic 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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Yan Ping Xu v New York City Department of Health

This Article 78 appeal was commenced by petitioner, Yan Ping Xu, to remove an unsatisfactory rating issued to her by respondent, New York City Department of Health, return her to her position and compensate her for back pay and money damages. Petitioner represented herself in this appeal and argued that respondent acted in an arbitrary and capricious manner. Respondents cross-move to dismiss the claim and petitioner cross-moves for permission to file a late notice of claim.

Petitioner worked as a City Research Scientist for New York City Department of Health and Mental Hygiene. She was terminated on March 13, 2008. Petitioner claims she had no warning that her work was unsatisfactory prior to her termination and feels that she was fired in retaliation for bringing to the attention of her supervisor incorrect figures used in a report.

Due to petitioner choosing self-representation, many procedural errors were made including the initial petition being served before it was filed, amended petitions never being filed with the court and no Notice of Claim being filed. Petitioner failed to follow proper procedure for challenging her termination. Prior to filing the Article 78 appeal in Supreme Court, she should have first appealed the performance evaluation with the appeals board and accordingly her petition is premature. Also, petitioner’s failure to file a timely notice of claim within 90 days of her termination date and the fact that she served her initial petition more than 90 days later indicates that the respondent knew nothing of her claim prior to the 90 day deadline.

Accordingly, the Supreme Court denied petitioner’s petition and cross-motion to file a late notice of claim and granted respondent’s cross-motion to dismiss petition.

To read further on this topic 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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Kifan Pak v New York City Department of Education

Petitioner, Kifan Pak, commenced this Article 78 proceeding to review the decision of respondent, New York City Department of Education, terminating him as a probationary teacher. Petitioner pursued an administrative appeal which resulted in the decision of termination being upheld. He then brought about this Article 78 appeal in Supreme Court. Respondents cross-moved to dismiss the petition arguing that it was time barred and the statute of limitations had expired.

Petitioner was informed of his termination by letter dated February 21, 2007. Petitioner immediately pursued an administrative appeal and received the determination to sustain the recommendation of termination by letter dated September 11, 2007. Petitioner then commenced the Article 78 appeal to vacate the decision on January 15, 2008. CPLR Section 217 states that an Article 78 proceeding to challenge an administrative decision must be commenced within four months after the determination becomes final. The internal administrative review did not extend petitioner’s limitation period because it is merely a procedural contractual right and not a constitutional or statutory right.

Accordingly, the Supreme Court granted respondent’s cross-motion to dismiss the petition as time-barred and dismissed the petition.

To read further on this topic 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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Matter of Roth v Manhasset Union Free School District

Petitioner, Jeffrey S. Roth, commenced this Article 78 proceeding to review a determination of the Manhasset Union Free School District finding petitioner guilty of misconduct and incompetence and terminating his employment. The Supreme Court denied the petitioner and dismissed the proceeding to which petitioner appealed. Due to the fact that the petition raised a substantial evidence question, the Supreme Court should have transferred the proceeding to the Court and thus the Court treated the proceeding as if it had been properly transferred and reviewed the proceeding de novo.

Petitioner was an audio-visual technician for respondent. The School District charged him with numerous acts of misconduct including physically threatening other employees and making inappropriate sexual comments to students among other things. A hearing found petitioner guilty of 14 of the 16 charges against him. The determination under review was supported by substantial evidence and it is the function of the administrative agency or Hearing Officer and not the reviewing court to weigh the evidence. Also, the penalty of termination was not shocking to the judicial conscience.

Accordingly, the Supreme Court dismissed the appeal, vacated the judgment, confirmed the determination, denied the petition, dismissed the proceeding and awarded one bill of costs to the respondent.

Read full article here.

To read further on this topic 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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Matter of Norgrove v. Board of Education of the City School District of NYC

This Article 78 proceeding was brought about by petitioner, a tenured mathematics teacher of 28 years, to annul determination of respondents, Board of Education of the City School District of New York, terminating his employment. Petitioner is also seeking retroactive reinstatement with full back salary.

In December 2006, the Board of Education advised petitioner via hand-delivered letters that a serious allegation was made against him and that he was reassigned to Region 8 Human Resources. In May 2007, petitioner received another hand-delivered letter entitled “Notice of Charges” (“First Notice”) informing him of the nature of the complaint being filed against him. The Board of Education also sent this letter via certified and regular mail addressed to petitioner. According to petitioner, the address respondents used was old and he moved in 2003. Later that month the Board of Education mailed petitioner a Second Notice at the address they had on file. In the Second Notice respondents advised petitioner that he had 10 days to request a hearing. Petitioner asserts that he never received this notice since it was not sent to his correct address and therefore he was unable to submit a timely request for hearing.

In October 2007, the Chairperson of the Panel for Education Policy wrote a letter to petitioner detailing the events occurring since the charges in May, the Panel’s findings and indicating petitioners’ termination. Petitioner was then hand-delivered a letter stating he had been terminated. Petitioner immediately informed his union representative who contacted the Board of Education to request a hearing but the request was denied. Petitioner then filed a Notice of Claim in January 2008 and commenced the instant Article 78 proceeding in February 2008.

Petitioner argues that since he did not receive the notice regarding his right to a hearing, the Board of Education’s termination of his employment without the due process hearing deprived him of property rights in his tenured position and was arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of his rights. The Court agrees because the Board of Education had an obligation to take additional steps to effect notice after the certified mail to petitioner was returned unclaimed.

Accordingly, the Supreme Court granted the petition, annulled respondents’ determination terminating petitioner’s employment, and ordered respondents to reinstate petitioner with full salary and benefits retroactive to November 26, 2007.

Read full article here.

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Petitioner, Carol Nolett, brought about this appeal to challenge her termination by the Board of Education of the Greater Johnstown City School District. Petitioner has been a teacher in this district since 1990 when she received a probationary appointment in the tenure area of remedial reading. Ms. Nolett gained tenure in 1993 in the tenure area of remedial reading and has been teaching “Remedial Reading – Academic Intervention Services” (AIS) since 2000.

During the 2007-2008 school year, petitioner and three other teachers taught AIS. According to petitioner, she had the most seniority of the four teachers in the “tenure area” and alleged that one teacher had taught AIS for only five and a half years while the other taught for only three.

In June of 2008, the board voted to abolish one position in the tenure area of remedial reading and selected petitioner as having the least seniority among the teachers in that tenure area. Petitioner argues that the board incorrectly calculated her seniority and that she has more seniority than the other two teachers. She appealed this decision, requesting to be reinstated as a full-time tenured teacher in the tenure area of remedial reading.

According to respondents, there is no such tenure area in AIS and that petitioner only taught reading within that program. Additionally, respondents assert that petitioner failed to name and serve the other teachers who she claims to have seniority over. The Court agrees that the appeal must be dismissed for failure to join the necessary parties whose rights would be adversely affected by a determination in favor of petitioner.

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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.

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Ambrosino v Village of Bronxville

In 2007, the plaintiff, Joseph Ambrosino, was terminated from his job with the Village of Bronxville Department of Public Works (DPW). Plaintiff’s Union then filed a grievance which was denied by the DPW Superintendent, the first step of the grievance process, and then denied by the Village Administrator, the second step. The plaintiff then skipped the third and final step of advisory arbitration and went straight to commencing an instant action against the Village and the DPW Superintendent alleging discrimination and breach of contract. The Supreme Court dismissed his petition on the grounds that he did not exhaust his administrative remedies.

Plaintiff then commenced this appeal. The Court found that the original dismissal of the petition on the grounds of failure to exhaust administrative remedies was only partly acceptable. While plaintiff did fail to complete the entire grievance process he was not given the opportunity to plead his case concerning the allegations of discrimination. Therefore the second cause of action was properly dismissed but the first cause of action should not have automatically been denied due sua sponte.

Accordingly, the Court modified the order by deleting the provision, sua sponte, dismissing the first cause of action and affirmed the order as modified without costs or disbursements.

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Matter of Jason Longton Jr. v. Village of Corinth

Petitioner Jason Longton Jr. brought about this Article 78 proceeding to review the determination of the Village of Corinth Board of Trustees terminating his employment as a police officer. Petitioner began working as a police officer in 2003. In 2004, he was charged with violating multiple department rules and suspended. The most serious charge was insubordination involving his investigation of an individual after receiving a direct order by the Chief of Police not to do so. Following a hearing, petitioner’s employment was terminated but the determination was later annulled due to an issue with improper stenographic transcription. A second hearing resulted in a recommendation for termination which the Board of Trustees enforced. Petitioner then commenced this appeal.

In August 2004, petitioner quarreled with a restaurateur, Trevor Downie, during a traffic stop. Downie complaints about petitioner’s conduct were then forwarded to the Chief of Police. Petitioner then confronted Downie at his restaurant resulting in Downie threatening a lawsuit against the Village of Corinth. Further altercations between petitioner and Downie led to the Chief of Police ordering petitioner to stop any investigation or contact with Downie. Petitioner ignored the orders and continued investigating Downie secretly.

Petitioner argued that the penalty of termination was excessive. The Court feels that petitioner, being an employee of short duration, deliberately disobeying the orders of the Chief of Police constitutes conduct at odds with the strict discipline necessary to perform the duties of a police officer and therefore the penalty was not shocking.

Accordingly, the Court confirmed the determination, without costs and dismissed the petition.

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National Medical Health Card Systems Inc. v. Fallarino

This action was commenced by Plaintiff, National Medical Health Card, Inc. (NMHC), against its former employee, Defendant, Joseph Fallarino. Fallarino then counterclaimed seeking money damages for breach of contract by wrongful termination.

When Fallarino applied to the job at NMHC, he falsified information on his resume. In the process of the interview process, no one at NMHC ever did a thorough enough background check to discover the inaccuracies in Fallarino’s resume. He was hired in June of 2004. Early 2005, two women that worked under Fallarino accused him of sexual harassment. In March, NMHC fired Fallarino due to allegations of sexual harassment. Upon his termination, the company offered Fallarino an ultimatum, he could receive one-half of the severance previously agreed upon or he would be fired for cause and lose his benefits, get a bad reference, and receive no unemployment.

Following his termination, NMHC discovered the omissions and misstatements in Fallarino’s resume. They then brought about this action against Fallarino claiming fraud and therefore a breach of contract which meant they would not owe him any severance pay. The Court felt that NMHC could have discovered the false information on Defendant’s resume prior to hiring him since they were, in fact, able to confirm the inaccuracies after his termination. Also the company did not suffer any damages due to Fallarino’s alleged fraud.

In regards to Fallarino’s counterclaim, his termination was wrongful because the two reasons given for his termination were inadequate. The first reason, the misstatements in his resume, could not serve as a basis for his termination because NMHC had adequate opportunity to investigate Fallarino’s background but chose not to and did not do this research until after firing him. Also, the alleged sexual harassment charges could not serve as a basis for his termination because the instances were isolated and uncorroborated and did not legally rise to the level of actionable sexual harassment warranting the rapidity of the firing. The evidence did not demonstrate a concrete basis under the contract to fire Fallarino.

Accordingly, the Court ordered that Fallarino is entitled to the salary benefits, and car allowance, together with interest from the date of his termination as well as other benefits under his contract.

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Levine v Smithtown Central School District

Defendants brought about a motion for summary judgment to dismiss plaintiff, Melissa Levine’s alleged disability discrimination action. Plaintiff was a school psychologist at the Tacken Elementary School in her final probationary year. After sustaining a concussion while trying to restrain a student, plaintiff was on leave from October through November of 2001. Then plaintiff was absent from work from December 2001 through the end of the school year due to bi-polar disease and Lyme disease. When the time came for Levine’s supervisor to evaluate her, she was not recommended for tenure and instead was recommended for termination. Plaintiff asked for an extension of her probation but was denied.

Plaintiff brought about this appeal and alleged that she was discharged due to her disability. Defendants argued that she was terminated due to poor performance prior to her prolonged absence. Additionally, in order to meet the ADA’s definition disability, a person must have a physical or mental impairment that substantially limits at least one major life activity, must have a record of this impairment, and must be regarded as having the impairment. Plaintiff failed to provide evidence that her impairment substantially limited any major life activity, her sole record of impairment was her doctor’s notes that stated a diagnosis and recommendation for continued sick leave, and her only evidence that she was regarded as impaired was the defendants’ alleged perception that she could not perform her job. In summary, Levine failed to provide sufficient evidence to permit a trier of fact to conclude that she was disabled within the meaning of the ADA.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment and dismissed the plaintiffs’ claim.

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Muto v NYS Executive Department Division of Human Rights

Petitioner, Joseph F. Muto, sought to annul decision to terminate his probationary appointment on the grounds of bad faith and arbitrary and capricious action.

 Petitioner was hired by respondent, New York Division of Human Rights, for a probationary period of one year. On his application, Muto wrote that though he had worked as a practicing attorney in New York, he was not admitted to the New York bar. Petitioner said that the reason for this was because he was disbarred for negligent client representation by failing to appear for out-of-state cases due to his fear of flying and heights.

 During his probationary period, the senior staff held a meeting to review plaintiff’s personnel file and determined that he failed to fully disclose the reasons for his disbarment. A total of 43 serious charges were brought against petitioner and he was terminated.

 Muto then brought about this Article 78 proceeding on the ground that his termination was done in bad faith and was arbitrary and capricious. Petitioner’s arguments fail to show that respondent’s determination was in bad faith. Petitioner argued that respondent could have discovered all the details of his disbarment as a matter of public record but this does not mitigate the fact that Muto disclosed certain aspects of his disbarment while hiding others.

 Petitioner did not meet his burden to show a triable issue of fact to support a claim of bad faith, improper motive, arbitrariness or capriciousness.

 Accordingly, the Supreme Court grants the Respondent’s Cross Motion to dismiss this Petition.

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Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

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Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

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