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January 31, 2011

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing

Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department

The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.

Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.

Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.

The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”

While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”

Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.

Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”

The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."

Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The Toolasprashad decision is posted on the Internet at:

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