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Monday, August 22, 2016

Employee terminated for failure to posses a valid license required to perform the duties of the position

Employee terminated for failure to posses a valid license required to perform the duties of the position
Matter of Rivera v New York City Dept. of Sanitation, 2016 NY Slip Op 05837, Appellate Division, First Department

Supreme Court granted the Article 78 petition filed by probationary sanitation worker Carlos Rivera  seeking a court order annulling Department of Sanitation’s terminating his employment with the Department.

According to the Appellate Division’s decision, Rivera, during his probationary period, had been arrested and charged with Driving While Intoxicated [DWI]. His commercial driver's license, a requirement for employment as a sanitation worker, was suspended and then revoked as a result. The Department filed several disciplinary complaints against Rivera as a result of this incident and he was subsequently terminated.*

Rivera filed an Article 78 petition in Supreme Court seeking to annul Department terminating his employment, which the court granted in form of a “default judgment” as the result of the City’s failure to file a timely answer to Rivera’s petition. The City then filed a motion to vacate the default judgment on the grounds of “law office failure,” which motion was denied by Supreme Court. The City appealed the Supreme Court's decision.

The Appellate Division explained that a movant seeking to vacate a default judgment must [1] move to do so within one year of entry of the default; [2] show a reasonable excuse for the default; and [3] a meritorious defense. The court found that the City had met all three of these requirements and, further, the Appellate Division noted that Rivera did not oppose the City’s application to vacate the default judgment.

Considering the City’s claim of "law office failure" as a reason for its default, the court said that under certain circumstances, law office failure may provide a reasonable excuse for a default. The City’s excuse: Rivera’s was an “e-filed case” and its law office “failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.” The Appellate Division found that the City’s excuse was “sufficiently particularized and there is no evidence of willful or contumacious conduct” on its part.

As to the City’s advancing “a meritorious defense,” the court noted that Rivera [1] was a probationary employee at the time he was arrested and charged with DWI and [2] his commercial driver's license, a requirement for employment as a sanitation worker, was suspended and then revoked as a result of this event.

As a probationary employee, said the Appellate Division, Rivera “may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that [his] termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law."**

Finding that the record before it “clearly establishes that there were legitimate reasons for terminating [Rivera’s] employment, specifically, his arrest and the revocation of his license.” Further, said Appellate Division, “[t]his is a valid reason for termination even if the charges for which he was arrested were later withdrawn or dismissed.”

As the City’s failure to timely file an answer was neither willful, nor part of a pattern of dilatory behavior, and Rivera points to no evidence that the three-month period of default caused him to change his position, and he has demonstrated no other prejudice, and “in view of the strong public policy of disposing of cases on their merits, [the Appellate Division ruled that Supreme Court had] improvidently exercised its discretion in denying [the City’s] motion to vacate the default.” The Appellate Division then unanimously reversed the lower court’s rulings “on the law,” vacating the default judgment, denying Rivera’s petition and dismissing the proceeding.

* Termination of an employee for failure to posses a valid license required to perform the duties of the position is not disciplinary in nature and thus was subject to neither the pre-termination disciplinary procedures set out in a  collective bargaining agreement nor the provisions of Civil Service Law §75 [Cravatta v New York State Dept. of Transp., 77 AD3d 1399]. Further, in Meliti v Nyquist, 41 NY2d 183, the Court of Appeals held that the suspension of a teacher without pay was appropriate where the teacher lacked the necessary license or certification to teach. With respect to the existence of a “valid license requirement,” see Martin ex rel Lekkas, 86 AD2d 712.

** There is another limitation on such “summary” termination, however. In the event an appointing authority wishes to dismiss a probationary employee before he or she has completed his or her minimum probationary period formal disciplinary action must be initiated and notice and hearing provided [Challandes v Shew, 275 A.D.2d 369].

The decision is posted on the Internet at:


The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/


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