The failure to initiate a timely CPLR Article 78 challenging a final administrative decision requires the dismissal of the complaint

The Appellate Division concluded that petitioner's cause of action alleging that the appointing authority unlawfully terminated his probationary employment — a decision made by administrative determination — is time-barred as petitioner was terminated "almost 15 months before bringing this action, and a challenge to an administrative determination on the ground that it is contrary to law is subject to a four-month statute of limitations."

Click HERE to access the full text of the Appellate Division's decision.

Establishing that a public record is exempt from disclosure pursuant to New York State's Freedom of Information Law

As the Court of Appeals held in Karlin v McMahon, 96 NY2d 842, although "[a]ll government records are presumptively open for public inspection unless specifically exempt from disclosure," in this instance an affirmation of the Village Attorney demonstrating a valid basis for the denial of the Freedom of Information [FOIL] request at issue by establishing that the records sought therein were exempt from disclosure pursuant to Public Officers Law §87(2)(e)(i) and thus Supreme Court properly denied the petition and dismissed the proceeding on the merits.

Click HERE to access the Appellate Division's ruling in this matter.

Removal of a New York City Community Education Council District President

Appeal of Benjamin Morden from action of the New York City Department of Education regarding a request for the removal of Shino Tanikawa and reinstatement of Maud Maron as President of the Community Education Council District 2. The Commissioner of Education dismissed the Petitioner's appeal.

Click HEREto access the text of the Commissioner's ruling.

Governor Hochul announces "Indoor Mask Policy"

New York State Governor Kathy Hochul announced masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.

 

Her determination is based on the state's weekly seven-day case rate as well as increasing hospitalizations. The new business and venue requirements extend to both patrons and staff.  

 

This measure is effective Dec. 13, 2021 until Jan. 15, 2022, after which the state will re-evaluate based on current conditions. The new measure brings added layers of mitigation during the holidays when more time is spent indoors shopping, gathering, and visiting holiday-themed destinations.  

 

Businesses and venues who implement a proof of vaccination requirement can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC Vaccination Card. In accordance with CDC's definition of fully vaccinated, full-course vaccination is defined as 14 days past an individual's last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Johnson and Johnson vaccine).

 

A violation of any provision of this measure is subject to all civil and criminal penalties, including a maximum fine of $1,000 for each violation. Local health departments are being asked to enforce these requirements. 

 

To read the entire news release Click Here

The Hearing Officer conducting an administrative disciplinary action was free to credit the testimony of witnesses corroborating an infant's statements concerning the event underlying the disciplinary action

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the New York City Police Commissioner's decision to terminate Plaintiff's employment with the New York City Police Department [NYPD] upon findings Plaintiff guilty of, among other things, engaging "in conduct prejudicial to the good order, efficiency, and discipline" of the NYPD.

The Appellate Division unanimously confirmed the Police Commissioner's decision, finding that testimony provided in the course of the disciplinary hearing constituted substantial evidence to support the finding that Plaintiff "struck a three-year-old child on the chest." 

Citing Matter of Freeman v Ward , 162 AD2d 127, leave to appeal denied 76 NY2d 706, the court explained that the Hearing Officer was free to credit the witnesses' testimony corroborating the child's statements, since weighing the evidence and choosing between conflicting accounts was solely within the province of the administrative agency."

In addition, the Appellate Division opined that substantial evidence supported a finding that Plaintiff was guilty of making "misleading statements regarding the incident to an NYPD investigator during an official interview," as Plaintiff's statements to the investigator contradicted credible evidence of the alleged conduct.

As to the penalty imposed, termination, the court said that the penalty of dismissal does not shock the conscience, citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222."

The Appellate Division also noted that "Where police discipline is at issue, [judicial review] must allow 'great leeway' to the Commissioner's determinations regarding the appropriate punishment" to be imposed and, citing Matter of Kelly v Safir, 96 NY2d 32, observed that it is for "... the Commissioner, not the courts, who is accountable to the public for the integrity of the Department" to determine the disciplinary penalty to be imposed.

Click HERE to access the full text of the Appellate Division's decision.