Plaintiff, a volunteer firefighter, was found guilty of misconduct. The penalty imposed: removal from his position and membership with the Water/Fire District [District].
Supreme Court's order and judgment denied the District's motion pursuant to CPLR §§3211(a) and 7804(f) to dismiss Plaintiff's petition, granted the Plaintiff's petition by annulling so much of the District's determination as removed the Petitioner from his office and membership with the District, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner. The District appealed the Supreme Court's decision.
The Appellate Division annulled so much of the Supreme Court's ruling as addressed the "removal of the Petitioner from his office and membership with the District and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner", and as so modified, the Supreme Court's order and judgment was affirmed and the matter was remitted to that court "... for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition consistent herewith."
The Appellate Division opined that the documentary evidence did not utterly refute the allegation that the penalty imposed on the Petitioner was arbitrary and capricious or that "it was the result of race-based discrimination."
The Appellate Division, accepting Petitioner's allegations as true and affording him the benefit of every favorable inference, explained "the [District] failed to demonstrate that [Petitioner] does not have a cause of action for relief pursuant to CPLR article 78"* and that Supreme Court had properly denied the District's motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. However, Supreme Court, said the Appellate Division "should not have awarded [Petitioner] the ultimate relief sought in the petition, since the [District] had not yet filed an answer or the administrative record."
* Citing Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900.
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Matter of Thomas v Garden City Park Water/Fire Dist. |
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2024 NY Slip Op 03759 |
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Decided on |
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Appellate Division, Second Department |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 10, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate
Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
JANICE A. TAYLOR
CARL J. LANDICINO, JJ.
2022-00509
(Index No. 604169/21)
[*1]In the Matter of Jensen Thomas, respondent,
v
Bond, Schoeneck & King PLLC,
Ruskin Moscou Faltischek P.C.,
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review so much of a
determination of the Board of Commissioners of the Garden City Park Fire
District dated February 25, 2021, as, after a hearing, and upon finding the
petitioner guilty of misconduct, removed the petitioner from the office of
captain in the Garden City Park Water/Fire District and from membership
therein, the appeal is from an order and judgment (one paper) of the Supreme
Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered November 22, 2021.
The order and judgment denied the respondents' motion pursuant to CPLR 3211(a)
and 7804(f) to dismiss the petition, granted the petition, annulled so much of
the determination as removed the petitioner from the office of captain in the
Garden City Park Water/Fire District and from membership therein, and remitted
the matter for a new determination as to the appropriate penalty to be imposed
upon the petitioner.
ORDERED that the order and judgment is modified, on the law, by
deleting the provisions thereof granting the petition, annulling so much of the
determination as removed the petitioner from the office of captain in the
Garden City Park Water/Fire District and from membership therein, and remitting
the matter for a new determination as to the appropriate penalty to be imposed
upon the petitioner; as so modified, the order and judgment is affirmed,
without costs or disbursements, and the matter is remitted to the Supreme
Court, Nassau County, for the service and filing of an answer and the
administrative record within 20 days after the date of this decision and order,
and for further proceedings on the petition consistent herewith.
The petitioner served as a volunteer firefighter with the
respondent Garden City Park Water/Fire District (hereinafter the District), and
in 2016, he was elected captain of his company. On February 13, 2020, the Board
of Commissioners of the Garden City Park Fire District (hereinafter the Board),
which consisted of the respondents Chris Engel, Kenneth Borchers, and Peter
Chimenti, issued a Notice of Hearing and Statement of Charges, alleging that on
December 12, 2019, the petitioner breached the District's constitution and
bylaws and its workplace violence policy by confronting a superior officer in a
threatening and disrespectful manner, refusing to comply with the superior
officer's order to leave, and damaging the District's property. On
The petitioner commenced this proceeding pursuant to CPLR article
78 to review so much of the Board's determination as removed him from the
office of captain in the District and from membership therein. Prior to
answering the petition and submitting the administrative record, the
respondents moved pursuant to CPLR 3211(a)(1) and (7) and 7804(f) to dismiss
the petition. In an order and judgment entered November 22, 2021, the Supreme
Court denied the respondents' motion to dismiss the petition, granted the
petition, annulled so much of the Board's determination as removed the
petitioner from the office of captain in the District and from membership
therein, and remitted the matter for a new determination as to the appropriate
penalty to be imposed upon the petitioner. The respondents appeal.
"On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to
dismiss a petition, all of its allegations are deemed true, and the petitioner
is accorded the benefit of every possible inference" (Matter of Silverman v Town of Ramapo, 222 AD3d 652,
653). When evidentiary material outside the pleading's four corners is
considered on a motion pursuant to CPLR 3211(a)(7) and the motion is not
converted into one for summary judgment, the question becomes whether the
pleader has a cause of action, not whether the pleader has stated one and,
unless it has been shown that a material fact as claimed by the pleader is not
a fact at all, and unless it can be said that no significant dispute exists
regarding it, dismissal should not eventuate (see Matter of O'Hara v Board of Educ., Yonkers City Sch.
Dist., 198 AD3d 896, 899). "On a motion to dismiss a petition
pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary
evidence that utterly refutes the petitioner's factual allegations,
conclusively establishing a defense as a matter of law" (id. [internal
quotation marks omitted]).
Here, the documentary evidence did not utterly refute the
allegation that the penalty imposed on the petitioner was arbitrary and
capricious or that it was the result of race-based discrimination (see id. at
900). Similarly, accepting the petitioner's allegations as true and affording
him the benefit of every favorable inference, the respondents failed to
demonstrate that the petitioner does not have a cause of action for relief
pursuant to CPLR article 78 (see Matter of O'Hara v Board of Educ., Yonkers
City Sch. Dist., 198 AD3d at 900). Accordingly, the Supreme Court properly
denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss
the petition. However, the court should not have awarded the petitioner the
ultimate relief sought in the petition, since the respondents had not yet filed
an answer or the administrative record (see CPLR 7804[f]; Matter
of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900; Matter of Irfan v Vullo, 168 AD3d 733, 734).
Accordingly, we remit the matter to the Supreme Court,
DILLON,
J.P., MALTESE, TAYLOR and LANDICINO, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court