New York Civil Service Attorney Law Blog

Termination of Tenancy Proper when Income is not properly Reported

Kevin Sheerin — Tue, 16 Apr 2013 07:04:37 -0500

NYC HPD moved to terminate the tenancy benefits of petitioner, Perrett when it was found that Petitioner’s daughter’s $30,000 income was not reported to the subsidizing authority. The court found that termination of the tenancy was no so disproportionate to the offense in light of all the circumstances as to be shocking to once sense of fairness which is the Article 78 standard of review . Accordingly the termination of the tenancy was confirmed by the Appellate Division, First Department.

Teacher's Improper Enrollment of granddaughter does not warrant Termination

Kevin Sheerin — Tue, 16 Apr 2013 06:54:01 -0500

In a case handled by the Law Office of Glass & Krakower an arbitration award was reversed and but one portion of the arbitrator’s determination was affirmed. The facts underlying this case were: a Public School Teacher enrolled her granddaughter in a school whose geographical district the child did not reside in. The arbitrator recommended termination of the employee. On appeal it was found that the child was a City resident and accordingly was entitled to a tuition- free education. The final determination of the appeals court was that the teacher had filed a false instrument but the penalty of termination was inappropriate and this case was sent back to the lower court to impose a lesser appropriate penalty.

Fazzolary v NYC

Kevin Sheerin — Tue, 16 Apr 2013 06:41:04 -0500

The Plaintiff was a Sergeant in the Detective Bureau of the NYPD and when she stepped off a curb to assist a motorist with directions when she was injured. The case was dismissed on motion because it was determined that she was unable to prove that the city had prior notice of the defective condition of the curb and the curb was not defective or dangerous by reason of its height therefore there was no issue to be determined by the court. Accordingly, her claim and case was dismissed.

Read about this Civil Service case here.

Article 78 appealing SLA license cancellation denied

Kevin Sheerin — Sun, 10 Feb 2013 13:05:15 -0500

In an article 78 case brought in Kings County New York Sherwyn Toppin Marketing Consultants Inc. sued the New York State Liquor Authority (SLA) and requested the Supreme Court reverse the SLA's decision canceling their liquor license.

Agents from the State Liquor Authority had issued violations to the bar for permitting consumption of alcoholic beverages on its premises before and after hours and a continuing pattern of noise and misconduct requiring police attention. Additionally, New York City had commenced a new Nuisance Abatement action for various misconduct and other violations in the Supreme Court.

In the Nuisance Abatement action the Supreme Court had ruled that the city had not proven their case. In the SLA proceeding administrative law judge held a hearing and found that the SLA had sustained charges 5,6, 10, 12 ,13 and 14 with the submission of sufficient evidence. The SLA board adopted the Administrative LawJudge’s findings and canceled the petitioners liquor license

Tthereafter, petitioner commenced this article 78 proceeding to appeal the cancellation. The license holder/appellant brought up the claims that the ALJs findings were contrary to the doctrines of res judicata and collateral estoppel because the Nuisance Abatement Law action had been dismissed. . The court found that neither doctrine applied in this case since in the nuisance action brought by the city the Supreme Court had placed a higher and different burden of proof upon the city than the substantial evidence standard used in the SLA proceeding. Finally the court found that the penalty imposed by the SLA was not so disproportionate to the offense is to be shocking to one’s sense of fairness. Therefore the SLA determination was confirmed and the CPLR Article 78 petition appealing it was dismissed.

Understanding Teacher Discipline EBook

Kevin Sheerin — Thu, 24 Jan 2013 13:00:36 -0500

The Teacher Discipline process is covered under NYS Education Law 3020-a. This Ebook is a summary of the process. If you have any questions or comments or are facing charges or have an upcoming hearing please call our offices toll free at (888)998-9984.

Click here for the free Understanding Teacher Discipline EBook.

Notice of Claim Does Not Cover Subsequent Acts

Kevin Sheerin — Thu, 17 Jan 2013 11:09:24 -0500

In a case brought by another law firm, Plaintiff filed a notice of claim about discriminatory acts under New York State Executive Law §296 in 2003. After lengthy absence plaintiff resumed his position with the school district in his suit plaintiff claimed there were discriminatory acts after the notice of claim was filed the Appellate Division, Second Department held that the plaintiff could not recover for acts subsequent to the notice of claim because the school district did not have notice of those subsequent acts. You can read about this discrimination case by clicking here

NYPD Disqualification Reversed by NYC Civil Service Commission

Kevin Sheerin — Thu, 17 Jan 2013 09:35:04 -0500

Recently our office was successful in getting an DEP police psychological disqualification reversed. The candidate was disqualified for "being unable to handle the stress of an interview."

Read about this disqualification case here.

Teacher's Contract Protest Protected by 1st Amendment Free Speech

Kevin Sheerin — Fri, 21 Dec 2012 20:52:38 -0500

East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day. On other days the teachers protesting for a better contract walked on the sidewalk in front of the school. East Meadow School District filed charges pursuant to Education Law Section 3020a.

The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator's determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.

The arbitrator found that Santer "intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside. The arbitrator sided with the school district and found Santer culpable. The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.

The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a "matter of public concern."

Read about this 3020-a and CPLR 75 case here.

Taxi and TLC Licensee cases at OATH

Kevin Sheerin — Mon, 20 Aug 2012 12:05:38 -0500

The New York City Office of Administrative Trials and Hearings has published an ebook entitled Taxi and TLC-Licensee cases-A Guide to Your Hearing at the OATH Tribunal. Some of the areas covered in the ebook are: Arrest: Fitness; Compliance: Overcharge: Passenger Complaints and Accidents affecting proposed transfer of a Medallion. This concise and straight forward guide is a good place to start if you have an upcoming case at OATH. Click here to get a copy of the OATH Taxi and TLC license case ebook. To speak to me regarding your case please call toll free (888) 998-9984.

To read about criminal defense services offered by my office please see lidwiattorney.com

Excessive Fines draw Article 78 suit

Kevin Sheerin — Thu, 02 Aug 2012 13:26:36 -0500

The New York City Public Advocate filed an Article 78 claiming excessive fines for minor violations against New York City small businesses. Bill DeBlasio alleged that New York City's revenue push is resulting in hardship for small businesses. Fines have doubled from $400 millon in 2000 to $800 million in 2011.

I have seen a rash of ECB cases where the summonses were sent to old addresses or a worksite instead of a corporate office. One fine was for approximately $100,000 which was dismissed as the accused corporation did not do the work alleged.

Town Law appointing Public Works Commissioner Upheld

Kevin Sheerin — Sun, 29 Jul 2012 11:25:25 -0500

The Town of Colonie appointed Cunningham who was not a resident of the town to a two year term as Commissioner of Public Works. When challenged the Appellate Division, Third Department held that the existing local law did not supercede the State Public Officers Law sect 3 or Town Law sect. 23 which required the candidate be a town resident. Thereafter, Colonie adopted Local Law 15 which provided that the Commissioner be only a resident of Albany County. When Cunningham was appointed again another appeal followed with a different result. The Court upheld local law 15 and the appointment. Read about this New York Civil Service case here.

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Yonkers firefighter granted Accidental Disability Retirement

Kevin Sheerin — Sat, 14 Jul 2012 11:27:40 -0500

In 2008 a Yonkers City Firefighter responding to a car fire slipped on an unknown slippery substance on the ground. He was unable to return to work due to his injuries. When he was denied an Accidental Disability Retirement (ADR) he filed an Article 78 in Albany County which was transferred to the Appellate Division, Third Department under the "substantial evidence" standard of review. The Appellate Division found the decision after a hearing that the fall was not an "accident" was not suppported by substantial evidence. The firefighter and his coworked said that the substance blending in with the roadway and was undetectable. Read about this Accidental Disability Retirement case.

School failed to prove it provided heightened supervision in gym class

Kevin Sheerin — Sat, 14 Jul 2012 10:41:11 -0500

When a Westchester school gym class set up a "stations" physical fitness class it included jump rope and a balance board. The gym teacher related that the balance board required heighten supervision. The plaintiff fell off the board twice before she injured herself and the gym instructor only learned of the injury from two other students. The court held that the defendant school did not prove that heightened supervision was provided to the balance board and the motion for summary judgment was denied. Read about this school injury case here.

Student's dismissal for plagarism is upheld

Kevin Sheerin — Fri, 06 Jul 2012 08:45:36 -0500

The Appellate Division, Second Department held that Farmingdale State University's decision to expel a student for plagiarism was rational. The nursing student reportedly handed in a paper which, according to the professor was similar to another student's paper submitted the prior spring semester. The Court held that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals" (Matter of Pell)

Applying the Pell standard to the facts the Court ruled that the student continued to deny the plagiarism and provided and implausible explanation.

Read about this Article 78 case.

Volunteer Firefighter's Off Duty Flu Shot Post Accident Covered by Worker's Compensation

Kevin Sheerin — Fri, 25 May 2012 08:00:08 -0500

Matter of Pettit v Scipio Volunteer Fire District

The District and the Workers’ Compensation Carrier appealed the Workers’ Compensation Board decision that ruled that Claimant’s injuries occurred within her duties as a volunteer firefighter.

Claimant, after receiving her vaccination for the swine flu, was injured in a car accident on her way home. Claimant then filed a claim where at a hearing it was determined that the claim fell within the provisions of the Volunteer Firefighters’ Benefit Law.

The Court affirmed the decision of the Workers’ Compensation Board. The Board found that claimant’s injuries were covered under the Volunteer Firefighters’ Benefit Law 5(1)(p), which included participation in a “… program for purpose of promoting or maintaining the performances of their duties as firefighters, as well as necessary travel to and necessary travel from such activity.” The evidence proved that the District strongly encouraged volunteers to receive the swine flu vaccine and arranged for them to receive it at no cost. The Claimant stated that if not for the directives from the District she would not have received the vaccine. Therefore the Court upheld the Workers’ Compensation Board’s decision that Claimant’s injuries occurred within her duties as a volunteer firefighter.

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03920.htm

Nassau Court Officer denied disability pension

Kevin Sheerin — Thu, 17 May 2012 08:29:29 -0500

At issue in this case was whether being assaulted is inherent in the routine performance of a court officer's duties. The Appellate Division, Third Department in Albany decided that it was in Kilbride v. NYS Comptroller. The standard in disability pension cases is: to qualify for a disability pension the accident must be a "sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular employment duties." Rykala v. NYS Comptroller.

Joel Stashenko writing for the New York Law Journal quoted the Court Officer's union head saying that the decision was "absolutely insane" and appeals are planned.

Article 78. Future Fire Fighhter reinstated to eligibility list (Jeffrey Tamsen v Olivia A. Licata, Director. City of Buffalo)

Kevin Sheerin — Thu, 10 May 2012 09:33:00 -0500

In the matter of Jeffrey Tamsen v Olivia A. Licata, Director, City of Buffalo, Petitioner filed an Article 78 against Olivia A. Licata, Director, of Buffalo. Petitioner filed an Article 78 to annul Respondents determination that he was ineligible for appointment as a firefighter in the City of Buffalo.

It was ordered that the judgment so appealed from be unanimously affirmed without costs. Respondent’s determination that he was ineligible was based on Rule 10 of the City’s Classified Civil Service Rules, which states that a person must maintain a residence for 90 days prior to the date of application or the date of appointment. Respondent was living in a residence within the city for 7 years and was living there before he purchased a house in a different county in May of 2009. His application was in March of 2008. Therefore he satisfied the rule.

It was found that the City’s determination to disqualify petitioner based on his purported failure to comply with Rule 10 was arbitrary and capricious. Petitioner proved so and it was ordered that petitioner be reinstated on the list to become a firefighter.

Click here to read more about this Civil Service Disqualification case.

To read more articles like this feel free to visit my website.

Suspension due to unauthorized electronic device! (Dep't of Correction v. Blount)

Kevin Sheerin — Thu, 10 May 2012 09:15:29 -0500

Respondent, a Corrections Officer was found guilty of bringing a Nook Wi-Fi Reader into a prohibited area of the inmate facility at the Rose M. Singer Canter. Respondent admitted to her wrong doing immediately when Petitioner found the item that was not permitted in the facilities. Respondent alleged that she had grabbed the wrong shopping bag from her locker, and hid the bag that contained the unauthorized item behind a garbage bag. Petitioner claimed she had a good track record and had not been any trouble before that incident.

Following her conversation with senior members at the facility, she was immediately suspended pre-hearing for fifteen days suspension without pay. The Administrative Law Judge recommended she be suspended for 10 days. Given that she had already been charged with fifteen days it was recommended she be credited with the extra five days pay.

It was recommended that due to Respondents clean disciplinary record and her overall acceptance of responsibility that a penalty suspension of ten days without pay is appropriate, and because Respondent was immediately suspended without pay for fifteen days, that the Department credit her five days pay.

Read about this New York City Corrections Officer discipline here.

Read more stories like this on my website.www.sheerinlaw.com

Police Department required to return seized vehicle (Police Dep't v Peake)

Kevin Sheerin — Thu, 10 May 2012 08:52:55 -0500

Petitioner, the Police Department brought about a proceeding to determine its right to retain a vehicle seized when a man was caught drinking and driving, with a breath test that was more than twice the legal limit. Respondent was also responsible for damaging three vehicles on the night of his arrest.

Respondent argued that although he admittedly was under the influence, Petitioner failed to comply with the Krimstock Order, which are rules required to be followed during the seizure of a person’s vehicle. As stated in the Krimstock Order, the Department must provide notice of the right to a retention hearing in two distinct ways:

Notice of the right to a hearing will be provided at the time of seizure by attaching to the [Property Clerk’s] voucher already provided to the person from whom a vehicle is seized a notice, in English and Spanish, as set forth below. A copy of which notice will also be sent by mail to the registered and/or titled owner of vehicle within five business days after the seizure.

Respondent testified that the police did not give him any paperwork after he was arrested and the Department had no proof of notice of Peake having been served at the time of the seizure. As for the second required type of notice, by mail within five business days of the seizure, the Department submitted a copy that was past 10 business days from the seizure and what NYPD sent was not clearly legible, with an initial by a person that no one seemed to know.

The Petitioner’s claim was granted due to the Police Departments failure to comply with the dual notice requirement of the Krimstock Order, the vehicle had to be released to Respondent.

To read more stories like this click here and visit my website.

Probationary NYPD Officer Termination Upheld in Article 78 case

Kevin Sheerin — Wed, 09 May 2012 12:10:58 -0500

Petitioner filed an Article 78 to annul Respondent’s determination, which terminated Petitioner’s probationary employment as a police officer; The Court unanimously affirmed the termination.

Petitioner failed to state a claim in the petition and did not prove that his termination was in bad faith for an improper or impermissible reason. Respondents are entitled to discharge probationary police officers “for almost any reason.” So long as the decision was not made in bad faith.

Petitioner believed his termination was based on his refusal to disclose psychological treatment he underwent at the age of six. Although Respondent claimed that was not the reason, even if it was that would have been a valid reason because materials such as that can be deemed “such omissions as material to his qualifications.”

Petitioner failed to allege facts supporting a conclusion that his termination was in bad faith and given his failure to do so, a hearing to resolve the truth of the facts alleged was unnecessary and decision of termination remained.

To read more about this NYPD Police Officer Termination Case click here.

To read more cases like this one click here and visit my website.