An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition
Portnoy v Board of Educ. of City School Dist. of City of N.Y., 20 Misc.3d 1119(A)

This decisions sets out some of reasons that a court may consider in rejecting arguments that actions by another party served to toll the relevant statute of limitations.

Noting that the four-month period of the statute of limitations begins to run when the determination made by the agency becomes final and binding, Judge Madden said that:

[1] A request for reconsideration of an administrative determination does not toll or revive the statute of limitations, even when the agency reconsiders its determination or negotiates with individual regarding modification of the administrative decision.

[2] A statute of limitations is not tolled should the individual seeks redress through a procedure that subsequently turns out to be unavailable.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31933.pdf

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Barthel v Town of Huntington, 2012 NY Slip Op 05738, Appellate Division, Second Department

The Director of the Department of Human Services of the Town of Huntington adopted the findings of a hearing officer, made after a hearing pursuant to Civil Service Law §75, which the employee guilty of certain disciplinary charges and terminated the individual's employment with the Town.

The Appellate Division dismissed the individual’s appeal on the merits, explaining that the standard of judicial review of an administrative determination made after a trial-type hearing required by law, at which evidence is taken, “is limited to considering whether the determination was supported by substantial evidence.”

In this instance, said the court, there is substantial evidence in the record to support the determination that the individual was guilty of the subject disciplinary charges.

As to the penalty imposed, termination, the Appellate Division found that dismissal “was not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Ellis v Mahon, 11 NY3d 754; Rutkunas v Stout, 8 NY3d 897, Waldren v Town of Islip, 6 NY3d 735 and Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05738.htm

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Human Resources Admin. v. Vila, OATH Index No. 1578/08

OATH Administrative Law Judge Julio Rodriguez recommended termination for a paralegal aide who used the agency computer to store thousands of unauthorized images and video clips, many of which were sexually explicit, as well as other programs and files.

The evidence also showed that the individual was insubordinate and committed multiple time and leave violations.