Supreme Court denied Plaintiff's petition seeking to vacate Plaintiff's termination from her position with the New York City Department of Consumer and Worker Protection [DCWP] pursuant to Civil Service Law §75. The Appellate Division unanimously affirmed the Supreme Court's decision.
DCWP had filed disciplinary charges against Petitioner and terminated her for "incompetence" after finding her guilty of "excessive absenteeism" following a work-related injury.
The Appellate Division, citing Wysocki v Town of Southold, 204 AD3d 811 and other decisions, said that Plaintiff's dismissal was not arbitrary and capricious or affected by an error of law, observing that the "Petitioner was continuously absent from work for over 295 days and provided no indication as to when or whether she could return to work."
Noting that Petitioner did not allege that her disability "has not permanently incapacitated her from the performance of her civil service duties" held that her contention that DCWP erred by using Civil Service Law §75 instead of §71 to discharge her is unavailing. The court explained that "neither the statute itself nor the relevant case law mandates the use of Civil Service Law §71 as the exclusive procedure to separate an employee who is absent due to injury."
Click HERE to access the Appellate Division's decision posted on the Internet.
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Disability Leave for New York public sector personnel.
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