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March 02, 2011

Removal from the payroll

Removal from the payroll
Kahn v SUNY Health Science Center, 271 AD2d 656

The employer tells the employee that he or she is off the payroll. The employee sues, seeking a court order barring this action pending the trial challenging his or her termination on the ground that he or she would suffer irreparable harm if the injunction were not issued because:

(1) If he or she were removed from the payroll he or she would have no one to support him;

(2) He or she he would be unable to live in the New York metropolitan area; and

(3) He or she would be unable to prosecute the lawsuit challenging the termination.

These were the claims made by Mahmood Khan when the State University of New York Health Science told him it was removing him from his faculty position with the university. Although a State Supreme Court judge issued granted the injunction, the Appellate Division, reversed the lower court and vacated the order.

The standards for granting a preliminary injunction are such situations are clear. The party seeking the order must show that:

(1) He or she is likely to succeed on the merits;

(2) He or she would suffer irreparable injury if the provisional relief is withheld; and

(3) A balancing of the equities weighing in favor of the moving party.

The Appellate Division, assuming that Kahn had indeed made an adequate showing of merit and that the equities balance in his favor, said that he failed to establish irreparable injury, the third element he was required to demonstrate. According to the court, Khan’s contentions were wholly speculative and conclusory, and, therefore, are insufficient to satisfy the burden of demonstrating irreparable injury.

Kahn also argued that if he were to be out of work for an extended period, he would have to return to Australia and would never be able to obtain United States citizenship. As he had not raised this argument before the Supreme Court, the Appellate Division said he was precluded from raising it in the appeal because absent matters that may be judicially noticed, new facts may not be injected at the appellate level.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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