New York Civil Service Attorney Law Blog

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.

DRUG TESTING: NO EXCUSE FOR FAILING TO PRODUCE A URINE SAMPLE. (GIBBON V CITY OF NEW YORK)

Kevin Sheerin — Fri, 04 May 2012 13:37:50 -0500

In Gibbon v City of New York, Respondent failed to provide a urine sample required for the Assistant City Highway Repairer position. Respondent stated his inability to provide a urine sample was based on a medical condition that prevented him from being able to provide one. He stated that New York City violated His rights and that he was discriminated against due to a medical condition.

Defendant alleged benign prostate hyperplasia (BPH) prevented him from producing a sample within a three (3) hour period, but the court held there was no conclusive evidence that Petitioner’s condition would prevent him from providing a sample in a three hour time period. Defendant, City of New York argued they did not violate state and local discrimination laws.

The City’s Motion argued to dismiss the complaint was granted. Plaintiff failed to comply with The City’s drug test procedures and Defendant was implementing federal regulations required for the position and did not violate state or local discrimination laws by doing so.

To read more about this drug test case click here.

NYPD Car Forfeiture "Krimstock Procedure" Video

Kevin Sheerin — Wed, 02 May 2012 11:29:45 -0500

In conjuction with Columbia Law School OATH Judge Joan Salzman has prepared a video and web presentation of the Krimstock procedure if your vehicle is seized for forfeiture by the NYPD. Included are the initiation of the case by the NYPD and the procedures before and after the hearing. Click here to see this NYPD Vehicle Forfeiture Krimstock Procedure page.

The detailed Wikipedia entry on the Krimstock Procedure can be found here .

Call us Toll Free (888) 998-9984 in you need an attorney to assist in getting your car back.

Visit Lidwiattorney.com for more information.

ALJ Decided to Drop Charges Against a Sewage Treatment Worker Due to a Lack of Evidence

Kevin Sheerin — Tue, 24 Apr 2012 13:30:01 -0500

Department of Environmental Protection v. DeCoursey

Petitioner, Department of Environmental Protection (DEP) brought a disciplinary proceeding under section 75 of the Civil Service Law against Respondent, a sewage treatment worker. The charges against Respondent were insubordination and inappropriate language to a supervisor.

Respondent and a supervisor got into a disagreement. Petitioner failed to establish that the Respondent failed to obey an order from a superior to return to the control room, as well as credible evidence that the Respondent used improper language aimed at his superiors. In order to prove insubordination there would need to be clear proof that an order was indeed communicated to Respondent, the order was clear and unambiguous, and that after Respondent heard a clear and unambiguous order, and finally that the Respondent refused to obey instructions. Petitioner failed to prove that those were met.

After the hearing the Administrative Law Judge decided that the Petitioner failed to establish the charges by a preponderance of the credible evidence and recommended that the charges be dismissed.

http://archive.citylaw.org/oath/12_Cases/12-666.pdf

The Court Found That the DOE Acted Rationally Putting a Permanent City Laborer Fit to Perform on Reinstatement List

Kevin Sheerin — Thu, 12 Apr 2012 08:53:16 -0500

Petitioner, a former permanent City Laborer with the DOE filed an Article 78 proceeding seeking reinstatement as he believed the DOE acted in bad faith concerning their refusal to reinstate him.

Petitioner started with DOE in January of 1985 and he was promoted in 2005. He was demoted in December of 2008 due to unexcused absences and lateness. Petitioner was injured at the workplace and went on worker’s compensation leave in July of 2009. In June of 2010, he received a letter informing him of his termination because “he had not been able to perform his duties due to an occupational injury for more than one year.” Petitioner was terminated pursuant to Civil Service Law 72 in July 2010. He was told that one year after the proposed termination Petitioner would be examined to determine his physical and mental ability to perform the duties of a City Laborer.

If a medical officer finds a civil servant to be mentally/physically fit to perform the duties of the position in civil service then “he or she shall be reinstated to the former position, if vacant … If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years.”

Therefore, the Court found that the DOE acted rationally when a medical officer found Petitioner fit to perform his duty they attempted to reinstate him. Because they did not have any vacancies at the time they placed Petitioner on a list for reinstatement to his former position that was active for the following four years in compliance with Civil Service Law 71.

http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3001113102011001SCIV.pdf

The Court Found That a Hearing Officer's Decision of Suspension was Fair against Tenured Teacher

Kevin Sheerin — Thu, 12 Apr 2012 08:45:33 -0500

The DOE, Petitioner, started an Article 75 proceeding that sought to vacate an arbitration award made after a disciplinary hearing against Respondent, a twenty-three year tenured teacher.

Respondent encountered with a female student where he “inappropriately touched her bare shoulders and neck and made sexually charged comments to her.” After trial, Respondent was acquitted of Endangering the Welfare of a Child.

The Hearing Officer found that Respondent was “culpable of some of the DOE charges leveled against him” but that the DOE failed to prove other charges. Therefore, directed that Respondent be suspended for one half year without pay and then be permitted to return to work as a classroom teacher.

The Hearing Officer found that Respondent was engaged in a “sexually charged banter with an introverted student” and was not soliciting sex. The Hearing Officer stated that “there are situations where a single incident could require termination, however, this was not one of them.” Additionally, “any repeat behavior of the type for which he was charged will lead to termination.”

DOE commenced these proceedings seeking to vacate the penalty “on the ground that the penalty was grossly inadequate, inconsistent with the hearing officer’s findings, and in violation of public policy.”

The Court found that the evidence presented “did not demonstrate a continued pattern of offensive behavior that reflects inability to understand the necessary separation between a teacher and his students.” “The ultimate penalty of dismissal is reserved for those situations involving the most egregious conduct, where no measure of alternative deterrence would be effective.” The Hearing Officer analyzed the facts and circumstances and concluded that they did not warrant the penalty of dismissal. The Court found that the penalty imposed “was not so disproportionate to the offense to be shocking to one’s sense of fairness.” The petition was denied and the arbitration award confirmed.

http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3004001082011001SCIV.pdf

Court Upheld DOE's Penalty Against Tenured Teacher

Kevin Sheerin — Mon, 26 Mar 2012 09:07:20 -0500

Joanna Stergiou v. New York City Department of Education

Petitioner, a tenured teacher, moved to vacate an arbitration award pursuant to CPLR 7511.

Pursuant to Education Law 3020-a, the DOE sought to terminate petitioner’s employment due to: “insubordination, incompetent and inefficient service, misconduct, corporal punishment and conduct unbecoming her profession.”

According to agreement between DOE and the United Federation of Teachers, compulsory arbitration and a selected hearing officer were required to determine the DOE’s charges against Petitioner. The penalty imposed by the hearing officer was an eight (8) month suspension without pay and completion of remediation courses to improve her skills within the classroom.

Petitioner argues that the hearing officer did not consider and address her defense under Civil Service Law 75-b. Petitioner stated that the Assistant Principal allegedly “wrongly directed her and other teachers to increase the grades of failing students.” Petitioner argues that the hearing officer allowed for testimony of children without determining their competency. Also, that the hearing officer violated her due process rights when she was excluded from the hearing with the minors testified. Lastly, that the hearing officer was biased in her decision.

The Petitioner’s retaliation defense, “whistle-blowing” must be considered by the hearing officer. The court found that the hearing officer clearly considered the defense and denied it based upon credible evidence.

Regarding the incompetent witness/failure to confront witness argument the court found that the hearing officer did conduct a preliminary examination and found the minors able to take an oath. Considering the Petitioner’s claim due process rights were denied, the Court found the claim unpersuasive in that Petitioner does not have an absolute right within an arbitration/administrative disciplinary hearing. As well, Petitioner’s counsel was allowed to cross-examine the minors on Petitioner’s behalf.

In accordance with Petitioner’s bias claim, the Court found it to be unproved and unsupported speculation.

The court found that the “penalty imposed on petitioner is not shocking to the conscience or disproportionate to the charged offenses.” Therefore, the Award was found to not be arbitrary and capricious and the petition was denied and the proceeding was dismissed.

http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3001033702011001SCIV.pdf

DOE's Motion to Dismiss CSL 75-b Whistleblower Case Denied

Kevin Sheerin — Tue, 20 Mar 2012 11:58:01 -0500

DOE’s Motion to Dismiss CSL 75-b Whistleblower Case Denied

The “whistleblower action” pursuant to Civil Service Law 75-b, claimed that Plaintiff, guidance counselor, was wrongfully terminated after “complaining to the school principal regarding improper suspensions and inadequate supervision of students.” Defendant, Department of Education of the City of New York, filed a motion to dismiss the amended complaint based on the failure to submit a Notice of Claim, SOL, collateral estoppel, and the accessibility of a solution under the collective bargaining agreement.

A NOC was not filed in the instant case. Education Law 3813 requires such filing within 3 months of the accrual of claim. In the case sited by the Plaintiff, a NOC is not required where the relief sought is “equitable in nature.” In the instant case Plaintiff sought reinstatement and other equitable relief. Therefore, the Court held that the NOC was not “a condition precedent to this action.”

Defendant also moved to dismiss the proceedings because Plaintiff failed to report the alleged misconduct to an appropriate governmental body under Civil Service Law 75-b. Subdivision (2)(b) of 75-b mandates that an employee make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action … (A)n employee who acts pursuant to this paragraph shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision.” Plaintiff reported the alleged misconduct to the head of the school. The Court found that the internal complaint satisfied the reporting requirement with Civil Service Law 75-b.

Defendant also moved to dismiss the proceedings because they proposed it was barred by applicable statute of limitations. The Court determined that the proceedings were within the time limits provided in CPLR 205(a).

The Court found that the Defendants argument that Plaintiff’s action is barred by collateral estoppel was also without merit. As stated above, the Court found that no external complaint was mandated to satisfy Civil Service Law 75-b.

Defendant’s argument that Civil Service Law 75-b(3)(a) and (3)(b) that plaintiff was subject to a collective bargaining agreement, that provided Plaintiff the opportunity to contest his termination, was denied.

The Court denied defendant’s motion to dismiss the amended complaint. So ordered that the defendant serve an answer to the amended complaint and that the parties meet for a preliminary conference.

Court Granted FDNY Firefighter ADR, Pursuant to WTC Presumption

Kevin Sheerin — Thu, 15 Mar 2012 13:34:37 -0500

Matter of Concannon v Board of Trustees of the NY Fire Department Pension Fund, Subchapter II

Petitioner, a retired FDNY firefighter and World Trade Center 9/11 first responder, brought an Article 78 proceedingto grant him a line-of-duty accidental disability pension, with the WTC presumption, retroactive to September 1, 2010, pursuant to NYC Administrative Code 13-353.1

Petitioner had skin melanoma and was treated from 1999 to 2000, then returned to full duty. He also worked as a first responder at the WTC from September 11, 2011 to June of 2002. In April of 2008, Petitioner was then diagnosed with Stage IV metastatic melanoma of his left lung.

Respondent’s Medical Board initially recommended petitioner for the ADR pension, pursuant to the WTC presumption but, it was remanded on September 1, 2010 for a new determination. After reviewing petitoner’s oncologists affidavit which stated “it is impossible to determine with any degree of medical certainty that the melanoma discovered in 2008 pre-existed the patient’s exposure at the World Trade Center site.” The Medical Board then determined that “in view of the tendency of melanoma to metastasize long after the initial diagnosis … this member’s recent diagnosis of a melanomic mass is indeed related to his original melanoma diagnose prior to the World Trade Center event.” Therefore the Medical Board denied petitioner’s ADR pension, with the WTC presumption.

“The failure of the Medical Board to explain why it changed its previous decision violated the principal that its decision “must be set forth in such manner as to permit adequate judicial review.”” The Court found that the Board of Trustees did not have “credible evidence sufficient to support its finding that the WTC presumption had been overcome. The Medical Board’s determination that since a melanoma has a “tendency” to mestastasize it must have mestastasized in petitioner’s lung, is pure speculation and not a substitute for the “credible evidence” needed to rebut the WTC presumption.” Therefore, Respondent’s determination denying Petitioner’s application for ADR was annulled and the Petitioner was granted ADR pension, pursuant to WTC presumption, retroactive to September 1, 2010.

Matter of Concannon v Board of Trustees of the FDNY Pension Fund, Subchapter II

Court Found Incident Causing Injury to Police Officer to be Considered an "Accident"

Kevin Sheerin — Thu, 15 Mar 2012 13:28:54 -0500

Matter of Meyer v. New York State Comptroller

Petitioner, a police officer, brought about an Article 78 proceeding to review determination by Respondent, Comptroller, that denied petitioner accidental disability retirement benefits (ADR).

Petitioner alleged that she was injured due to multiple workplace accidents. A Hearing Officer determined that none of the incidents were accidents under Retirement and Social Security Law and denied Petitioner ADR. Thereafter, the Article 78 proceeding was commenced.

An accident under Retirement and Social Security Law is “a sudden, fortuitous mischance that is unexpected and not within the “ordinary risks of employment. An injury occurring as the result of the petitioner’s own misstep or inattention does not constitute an accident so as to qualify for benefits in accord with the provisions of this law.”

In the first incident the court upheld the Comptroller’s decision. As for the second, the Court found the determination lacked substantial evidence. Petitioner stated that she was sitting in an office chair with wheels when the chair slipped out from underneath her. Her coworkers then found the “wheel of the chair bent and defective.” The chair was then sent for repair. The Hearing Officer did not address the uncontroverted testimony about the chair and the Third Department ruled the incident to be a qualifying accident under the law

The court found that the second incident did constitute an accident and the matter remitted to Respondent for further proceedings.

Matter of Meyer v. New York State Comptroller

Court Upheld "Warning" to Suffice for Tenured Teachers Misconduct

Kevin Sheerin — Thu, 15 Mar 2012 13:21:44 -0500

Board of Education of the City School District of the City of New York and Dennis M. Walcott, as Chancellor of the Board of Education of the City School District of the City of New York v. Tonia Hemingway

Petitioners, the Board of Education of the City of New York DOE and Walcott moved for an order, pursuant to CPLR 7511 to vacate or modify an arbitration award made against Respondent, a tenured teacher, after a disciplinary hearing that was held pursuant to Education Law 3020-a. The penalty was a disciplinary decision that was placed in her file as a warning. Respondents sought a harsher penalty for Respondent’s conduct, that the penalty should be vacated and the matter remanded to the hearing officer to impose a just punishment. Respondent cross moved to dismiss the petition, confirm the award, as well for costs of attorney’s fees and to impose financial sanctions to Petitioners.

Respondent was a tenured teacher for twelve years. Respondent was “arrested and charged with violating 18 USC 641, HUD Section 8 Housing Fraud”, she then pled guilty “in federal court to fraudulently representing her income on her Section 8 housing subsidy application for the years 2005-2008 for the purpose of fraudulently obtaining the housing subsidy.” Her punishment was three years probation and a fine of $46,872 in restitution to HUD.

Respondent did not notify the DOE’s Office of Personnel Investigation of the arrest and charges she had obtained, this in violation of Chancellor’s Regulation C-105.

The DOE served Respondent with disciplinary charges pursuant to Education Law 3020-a stating that Respondent engaged in “criminal conduct, conduct unbecoming to the profession, misconduct and neglected her duties” from 2005-2006 school year to 2010-2011 school year. The BOE “asserted that as a result of her alleged actions, there was just cause for her termination.”

Respondent had a disciplinary hearing pursuant to Education Law 3020-a. The hearing officer found that Respondent was guilty of all charges, misconduct and conduct unbecoming a teacher. “The hearing officer also found Respondent’s regret and quick action regarding Chancellor’s Regulation C-105 once she became aware of its requirements insured that a warning would suffice when considering repeating this behavior. The hearing officer did not believe that Respondent’s behavior justified termination. That Education Law 3020-a “is not a punitive statute, and that to terminate Respondent “solely on her commission of a crime related to her salary would be punitive and unrelated to her fitness to teach.””

Petitioners commenced this proceeding seeking to vacate or modify Respondent’s arbitrator’s award because “the penalty is inherently inconsistent and totally irrational, and that the penalty shocks the conscience.”

Petitioners must prove that the hearing officer’s award showed “misconduct, bias, excess of power or procedural defects.” “The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.” Also, a hearing officer’s decision “must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.”

The court decided that the hearing officer’s decision was rational and came from a thorough and thoughtful analysis of the evidence provided. Additionally, the hearing officer’s decision was not shocking to the conscience. Therefore, there was no reason to disturb the award, the petition was denied and the arbitrator’s award was confirmed.

Board of Ed v. Hemingway

ECB Incorrectly Serves Business NOVs, Matter Remanded to ECB

Kevin Sheerin — Thu, 16 Feb 2012 13:12:38 -0500

Taxraja Management, LLC v. The City of New York Environmental Control Board

Petitioner, Taxraja Management, LLC brought about these Article 78 proceedings that looked to vacate sixteen default judgments by NYC ECB, Respondent.

Petitioner claimed that he never received the sixteen NOVs. Once he received a notice of collection he contacted ECB and was advised to file “a request to vacate” in response to the NOVs. Petitioner followed this advice and it was denied by the ECB who claimed service was completed. Petitioner claims that the ECB did not properly serve the NOVs by “certified mail, return receipt requested, as required by Section 1049-a of the City Charter, or in accordance with Article 3 of the CPLR.” Petitioner claims that ECB violated his right to due process, cross examination, presentation of evidence, and his right to a fair hearing.

The ECB failed to supply a sufficient affidavit of service. The affidavit of service only included one of the NOV numbers and not the remaining 15. Therefore, it was determined that Respondent’s did not comply with the City Charter 1049-a.

New York City Charter 1049-a(d) (1) (h) mandates that the ECB send notice of default by “first class mail before a judgment can be docketed in the Civil Court of the City of New York.” The “actual notice of default” supplied by Respondents was not included in the administrative record. Therefore, “the court is unable to determine whether the petitioner was properly served with a notice of default with respect to each of the sixteen NOVs.”

Petition was granted, the ECB’s denial of requests for a new hearing were vacated and remanded to ECB for further proceedings.

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

Kevin Sheerin — Wed, 15 Feb 2012 21:10:39 -0500

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent's move to dismiss my petition for "failing to exhaust my administrative remedies" or wait for the decision of an internal appeal and have Respondent's move to dismiss their Petition as untimely having been filed more than 4 months after the termination date.

New York State's highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination. The 4 months time limit runs from the final day of service.

Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations. Leslie Khan was terminated "... as of the close of business January 25, 2008" She filed a DOE appeal of her probationary termination on January 3, 2008. Despite the committee's non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she "reaffirmed the previous action dated January 25, 2008. On September 9, 2008 Khan initiated an Article 78.

Doreen Nash started working for the DOE on September 3, 2002. In 2005 she received a "U" for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal. Nash's employment was terminated July 15, 2005. The Chancellor's Committee held a meeting on May 10, 2006 and recommended "non-concurrence". Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash's discontinuance as of "close of business July 18, 2005" Nash filed an Article 78 on September 10, 2008.

The Court held that both Khan and Nash had 4 months to appeal their termination. Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.

The Court explained: " Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee's service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date.

You can read the Probationary teacher Khan case here.

Court Upheld School District's Decision that Probationary Teacher Did Not Acquire Tenure by Estoppel

Kevin Sheerin — Mon, 13 Feb 2012 09:30:40 -0500

Matter of Andrews v. Board of Education of the City School District of the City of New York

Petitioner sought pursuant to CPLR article 78 to “acquire tenure by estoppel and to compel respondents to reinstate her as a tenured teacher.”

Petitioner never received a 60-day written notice that she was not recommended for tenure. This is mandated by Education Law 2573(1)(a) and 3012(2). She had gone to work the day after her probationary term ended.

The Court did not find that Petitioner had acquired tenure by estoppel as respondents did not “with full knowledge and consent” consent to Petitioner’s return to work after her probationary period ended. Petitioner had knowledge of her discontinuance of service in March of 2009 and when she reported to work after her probationary term expired, was told immediately of her termination and was given no assignments. Respondent’s proceedings “speak loudly against any supposition that (they) meant to perpetuate (petitioner’s) employment.”

Court Granted Police Officer Accidental Disability Retirement Benefits After Injury Caused By Slip and Fall During the Winter

Kevin Sheerin — Mon, 06 Feb 2012 11:47:35 -0500

Matter of Murphy v. New York State Comptroller

Petitioner, a police officer who worked for the Port Authority of New York and New Jersey, who worked at John F. Kennedy International Airport as an emergency rescue worker, commenced an Article 78 proceeding to review determination by Respondent, Comptroller, denying Petitioner accidental disability retirement benefits.

Petitioner was injured in January of 1999 when exiting a rescue truck he slipped on black ice and fell injuring his leg, ankle, head and shoulders. In May of 2007 a hearing officer approved Petitioner for accidental disability retirement benefits but, the Comptroller reversed and denied the benefits.

Accidental disability retirement benefits should be awarded when the incident was “a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties.” Petitioner explained that on the date of his injury it was cold but “clear with no precipitation”, the “taxiway was dry” and that he saw “no ice as he was exiting from the truck’s cab.”

The Comptroller decision rested on the concept that “encountering slick or icy surfaces was “inherent” in petitioner’s performance of his job during the winter.” Therefore, the event could have been “reasonably anticipated.”

The Court determined that it could not hold that “any slip and fall during the course of work performed outside during winter renders that event foreseeable.” Accordingly, the Court determined that the Comptroller’s decision was not supported by substantial evidence and the determination must be annulled.

NOV's Improperly Served by ECB

Kevin Sheerin — Wed, 01 Feb 2012 12:44:21 -0500

Matter of 49 Warren Realty, LLC v City of New York

Petitioners, the former and present owners of the subject premises, sought a CPLR Article 78 proceeding against respondents, City of New York, City of New York Office of Administrative Trials and Hearings, The City of New York Environmental Control Board and Carolyn Klein for (1) to vacate ECB violations against Petitioners (2) grant a hearing on the merits and/or (3) dismiss the violations for failure to state a cause of action and to obtain jurisdiction over petitioners. Respondent’s cross-moved for an order pursuant to CPLR 3211(a) (5) on the grounds that it is time-barred by the SOL.

This case dealt with fifteen separate Notice of Violations issued by the ECB concerning the subject premises which was owned by three separate owners. The responsibility of the Court is to “determine whether ECB acted arbitrarily and capriciously or abused its discretion when it denied Petitioner’s request to vacate said default judgments.” The Court had to determine two questions, whether a “NOV issued to a previous owner is enforceable as to the actual owner of the premises.” As well, “whether the ECB provided proper notice of the NOV’s to the Petitioners.”

The NOV was not issued to the actual owner of the subject premise, therefore the NOV “can only be enforced against the entity to whom the NOV was issued. It is not enforceable against a subsequent owner.” Therefore it was arbitrary and capricious and an abuse of discretion for the ECB to “deny Petitioner’s request to vacate the default judgment.”

Respondent’s argued that the Article 78 proceedings were brought about after the 4 month SOL period. Respondent’s never submitted affidavits of service for the denial letters in question. “An affidavit, as opposed to an affirmation, is required by a party to support the Cross-Motion.” Respondent’s Cross Motion must be dismissed since Respondent’s failed to provide a valid affidavit of service to Petitioner, it can not be proved that Petitioner did not file a Article 78 within the SOL.