Election of the forum in which the appeal is filed determines the procedures that are to be followed

Subdivision 1 of Section 76 of the Civil Service Law, "Appeals from determinations in disciplinary proceedings," in pertinent part provides that an officer or employee may appeal an adverse disciplinary determination made by the appointing authority to either [1] the State Civil Service [CSC] or the municipal civil service commission having jurisdiction or [2] filing a timely CPLR Article 78 action in Supreme Court.*

The New York City Department of Corrections [DOC] filed disciplinary charges against one of its employees [Petitioner] alleging Petitioner had violated certain DOC rules. DOC conducted a disciplinary hearing pursuant to Civil Service Law §75, during which proceeding Petitioner admitted having violated such rules. DOC found Petitioner guilty of the charges preferred against him and terminated his employment.

DOC then advised Petitioner that he could appeal the appointing officer's determination to either the Civil Service Commission [CSC] or to Supreme Court in accordance with CPLR Article 78. Petitioner was also advised that were he to elect to appeal to the CSC, CSC's determination would be final and conclusive.

Petitioner elected to appeal the determination to the CSC and, after a hearing, on August 20, the CSC affirmed the appointing officer's determination and the penalty imposed by the appointing authority. Petitioner then initiated a CPLR Article 78 proceeding seeking a judicial review the appointing officer's determination. DOC moved to dismiss the proceeding.

Supreme Court granted the DOC's motion dismissing Petitioner's Article 78 proceeding and Petitioner appealed.

Initially the Appellate Division noted that "[u]nless a shorter time is provided in the law authorizing the proceeding," an Article 78 action against a entity or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the person or entity seeking the judicial review.  Further, said the court, "An administrative determination becomes final and binding ... when the individual or body seeking review has been aggrieved by it".

In this instance the Appellate Division found that DOC's determination terminating Petitioner's employment was issued on June 4, 2015, and the CSC decision sustaining that determination was issued in August. As Petitioner did not commence this CPLR Article 78 proceeding until following February, the Appellate Division concluded that Petitioner's Article 78 proceeding was "time-barred."

In addition, the Appellate Division noted that Civil Service Law §76(3) provides that "[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court." Accordingly, said the court, because Petitioner elected to appeal to the CSC, he may only seek judicial review if the DOC has acted illegally, unconstitutionally, or in excess of its jurisdiction. Here, however, the Article 78 petition submitted to Supreme Court did not allege or present facts demonstrating that the DOC acted illegally, unconstitutionally, or in excess of its jurisdiction. Accordingly, the Appellate Division held that Petitioner failed to state any basis upon which his appeal could be considered by the court.

* An appeal to the State or municipal commission must be filed in writing within twenty days after service of written notice of the disciplinary determination. In the event such notice is provided by registered mail, an additional three days to file the appeal is permitted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03966.htm

Challenging an unsatisfactory annual performance rating

An educator [Petitioner] challenged his unsatisfactory annual performance review rating but Supreme Court granted the appointing authority's cross-motion to dismiss the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's action.

The Appellate Division said:

1. The Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith;

2. The record established that there was a rational basis for the determination to uphold petitioner's U-rating, which was based on insubordination and unprofessional conduct during the relevant school year; and

3. The Petitioner failed to demonstrate that there were procedural deficiencies in the performance review process resulting in the U-rating that undermined the integrity or fairness of the process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03301.htm

The anatomy of a challenge to a civil service commission's action rescinding an employee's appointment based on a criminal conviction

In consideration of the employee's [Plaintiff's] criminal history, the County Civil Service Commission [Commission] revoked Plaintiff's eligibility, certification and appointment to his Title A position, resulting in the termination of Plaintiff from service. The Commission also disqualified and removed the Plaintiff's name from an eligible list for appointment to a different title, Title B. Plaintiff initiated an Article 78 action challenging the Commission's decisions.

The record indicates that Plaintiff, in connection with his application for Title A, disclosed certain criminal history to the Commission. The Commission later sent letters to Plaintiff seeking additional documents and information concerning his criminal history. Although Plaintiff did not provide the documents sought by the Commission,* as the result of an administrative error, Plaintiff was certified eligible and, subsequently, appointed to the Title A position.

Subsequently, the County facility where Plaintiff worked was to be privatized. In accordance with an agreement enabling employees who did not want to work for the privatized company to be transferred to other job titles or work locations, Plaintiff applied for the Title B position and in connection with his application for the Title B position Plaintiff disclosed prior criminal convictions that had not been disclosed when he applied for the Title A position.

Ultimately the Commission notified Plaintiff that it was revoking his eligibility certification and appointment, terminating his employment in Title A and disqualifying him from the eligible list for the Title B position. The reasons advanced by the Commission for its actions with respect to the Title B position were Plaintiff's "disrespect for the process of law and order as evidenced by your record of convictions and failure to cooperate with your investigation." Plaintiff appealed the Commission's decision, submitting letters attesting to his good character and good work performance, as well as educational and training certificates he had earned. The Commission then advised Plaintiff that "it had determined that the 'original notification of disqualification stands,' and that [Plaintiff] will be terminated from his [Title A] position and removed from [Title B eligible list].

Plaintiff thereupon commenced his CPLR Article 78 proceeding challenging the Commission's  determination. Supreme Court, granted so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for the Title B position. The Commission appealed the Supreme Court's determination but the Appellate Division sustained the lower court's ruling.

The Appellate Division addressed a number of elements crucial to its consideration of the Commission's appeal.

Procedure: Judicial review of an administrative determination made without a formal hearing is limited to whether the determination was arbitrary or capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end.**

Controlling statutory law: Civil Service Law §50[4] provides that the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment . . . provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

In this instance the Commission's determination to revoke the Plaintiff's eligibility certification and appointment and terminate his employment in Title A found arbitrary, capricious, and without a rational basis in the administrative record as Plaintiff was appointed to this position in 2011. Accordingly,, the Commission was precluded from revoking his certification and terminating his appointment from his Title A position in 2016 except for fraud. The Commission, however, did not alleged it bases its determination on the ground of fraud.***

Considering the Commission's determination to disqualify the Plaintiff from the eligible list for the Title B position, the Appellate Division concluded that its ruling was arbitrary, capricious, and without a rational basis in the administrative record as it was conceded that Plaintiff disclosed his prior convictions when seeking employment in a Title B position. Further, opined the court, "the record provided no sound basis to conclude that the Plaintiff failed in 2016 to cooperate with the investigation or to disclose material facts."

Addressing Plaintiff's criminal convictions, the Appellate Division cited Article 23-A of the Correction Law, explaining that this provision "protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination" and prohibits both public sector and private sector employer to deny a license or employment application by reason of the individual's having been "previously convicted of one or more criminal offenses" absent one of two exceptions permitted set out Correction Law §752 in applies.**** These exceptions are:

[a] There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

[b] The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"

The Appellate Division said that there nothing in the record indicating that the Commission determined that an exception to Correction Law §752 was applicable or considered the factors to be applied in making that determination.

Thus, said the Appellate Division, it agreed with the Supreme Court's determination granting so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for appointment to the Title B  position.

* Plaintiff later contended that during the investigation into his criminal background he disclosed certain criminal convictions, but was not asked about certain other out-of-state convictions, explaining that he was under the impression that the additional documents the Commission sought pertained to an investigation for a different position that he had applied for, but in which he was no longer interested.

** Where an administrative adjudication made after a formal hearing, Supreme Court would transfer an Article 78 petition seeking judicial to the Appellate Division.

*** Citing Giangiacomo v Village of Liberty, 50 AD2d at 666, the Appellate Division observed that "under the circumstances presented, the record did not reveal the existence of fraud of a substantial nature" in connection with Plaintiff's application for examination and appointment to Title A.

**** Correction Law §753 sets out eight factors an employer is to consider when evaluating an applicant with a criminal record for employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03785.htm

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."

The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03921.htm

Application for a professional license denied based on a finding that the applicant lacked "good moral character"

New York State's Education Law §8405[3][f] requires that an applicant for a New York State psychoanalyst license must "[b]e of good moral character."

In this CPLR Article 78 action, an applicant [Petitioner] for "licensure as a psychoanalyst" challenged the rejection of his application based on the New York State Department of Education's [SDE] determination that Petitioner "lacked good moral character." Supreme Court transferred the Article 78 action to the Appellate Division.*

The Appellate Division's decision indicates that Petitioner had been licensed as a social worker by SDE in 1984 and subsequently was a licensed clinical social worker [LCSW] in several other states. At the time Petitioner applied for a New York State psychoanalyst license he was living in another state and held a LCSW a license issued by the state in which he then resided.

The reasons advanced by SDE in support of its decision to deny Petitioner "licensure as a psychoanalyst" included the following:

[a]  In 2003 Petitioner pleaded guilty in Rockland County Court to grand larceny in the third degree in full satisfaction of multiple charges pertaining to false billings submitted to a private insurance company during the period June 1999 to August 2001 and his New York license was suspended for one year;

[b] In 2005 Petitioner pleaded guilty, again in Rockland County Court, to two counts of grand larceny in the second degree, admitting that he filed false claims with the state and federal Medicaid programs and was allowed to surrender his New York license;** and

[c] Following testimony from Petitioner and several witnesses on his behalf, the SDE Hearing Panel determined that Petitioner did not meet the moral character requirement and that the application should be denied, which decision was sustained by SDE's Committee on the Professions.

 The Appellate Division observed that:

[1] "[W]hether an applicant seeking professional licensure has demonstrated "good moral character" is to be determined by the appropriate body and if "made after an evidentiary hearing", the determination will be upheld if supported by substantial evidence;"*** and

[2]  §752 of the Correction Law provides that a license application shall not "be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of 'good moral character' when such finding is based upon [the prior convictions], unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license ... sought ...; or (2) the issuance ... of the license ... would involve an unreasonable ... to the safety or welfare of specific individuals or the general public."

Noting that the parties agreed that the above cited standard applied here, at issue was SDE's determination that both exceptions have been established, i.e., that [1] there is a direct relationship between Petitioner's convictions and the work of a psychoanalyst and [2] that the issuance of a license to Petitioner would present an unreasonable risk to the safety and welfare of the public. 

Although Petitioner contended that SDE failed to consider the specific factors outlined in Correction Law §753 in making this determination, the Appellate Division said that its review of the record "shows otherwise" in that SDE "reasonably determined that Petitioner's improper billing practices as an LCSW were directly relevant to the same responsibilities that he would have to his clients and the involved insurers as a licensed psychoanalyst."

The decision also notes that Petitioner receive a certificate of relief from disabilities for his first conviction as provided by Correction Law §753[2]) but Petitioner's other convictions came two years later.

In consideration of the records before it, the Appellate Division found that the determination denying Petitioner's license application was supported by substantial evidence.

* CPLR §7804[g], in relevant part, provides that Supreme Court shall transfer an Article 78 action to the Appellate Division in the event an administrative determination required by law was after a hearing at which evidence was taken.

.** The decision notes that Petitioner retained his LCSW license issued by another state "under supervision".  

*** Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03865.htm