Courts may not revive an expired eligible list

Courts may not revive an expired eligible list
Matter of Leone v City of New York, 2011 NY Slip Op 01701, Appellate Division, First Department

Vincent Leone filed a petition pursuant to CPLR Article 78 seeking to reinstate an expired promotion list for the position of Sergeant in the New York City Police Department. He also asked he court to direct his retroactive promotion to the rank of Sergeant from the “reestablished eligible list.”

The Appellate Division affirmed Supreme Court’s dismissal of Leone’s petition, holding that Leone acknowledged that he may not be promoted from an expired list and the courts do not have the power to extend the life of a civil service list.

Leone had argued that “he was the victim of the Department's "illegal quota" system.” The court, however, said that his claimed “lacks evidentiary support.”

Further, said the Appellate Division, “given, among other things, [Leone’s] extensive disciplinary history,” the appointing authority “had a rational basis for declining to promote him.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01701.htm
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Employee terminated for falsifying attendance records and other misconduct

Employee terminated for falsifying attendance records and other misconduct
Dinnocenzo v Lackawanna, 270 AD2d 840

In Dinnocenzo the Appellate Division, Fourth Department, sustained the termination of an employee found guilty of falsifying his time records and other offenses.

James Dinnocenzo was charged, and found guilty, of disciplinary charges alleging misconduct and insubordination. Among the specifications:

1. Unauthorized absence from work;

2. Failure to obey his superior’s orders to report his absences; and

3. Submitting time sheets falsely indicating the hours that he was present at work.

Finding that there was substantial evidence in the record to support the findings of guilt, the court said that in light of all the circumstances, the penalty of dismissal was not so disproportionate to the misconduct as to be `shocking to one’s sense of fairness’ -- the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to Dinnocenzo’s testimony concerning the reason for his absences and minimizing the length of those absences, this, said the court, raised an issue of credibility for the Hearing Officer to resolve. The Hearing Officer apparently was not persuaded by Dinnocenzo’s efforts to explain his actions.
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Rebutting a statutory presumption

Rebutting a statutory presumption
Hutnik v Kelly, 37 AD3d 346

New York City police officer John Hutnik applied for accident disability retirement benefits pursuant to Section 207-k of the General Municipal Law. Section 207-k creates a rebuttable presumption that Hutnik’s “heart-related disability” underlying his application for accidental disability retirement benefits was service-related.

In this instance the Appellate Division found that this statutory presumption was “rebutted by credible evidence” that Hutnik did not suffer from a heart-related disability, notwithstanding his personal physician’s opinion to the contrary. As there was no other evidence or claim presented by Hutnik as to any other possible cause for the medical condition underlying his claim, the Appellate Division sustained the rejection of his application for accidental disability retirement benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/rebuttable-presumption.html