You are here: / / SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS...
, ,

SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER.

The Second Department noted that the administrative law judge (ALJ) in this action which resulted in the termination of petitioner’s employment as a corrections officer must be authorized to conduct the disciplinary proceedings by the commissioner of corrections. The petitioner contested his termination on the ground the ALJ was not so authorized. Supreme Court relied upon a letter of authorization which was not in the record. The Second Department held that was error and remitted the matter to allow the respondent to submit an authorization letter:

Civil Service Law § 75, which governs the procedure applicable to the subject disciplinary proceeding, provides that “[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose” (Civil Service Law § 75[2]). In the absence of a written designation, the removing body or hearing officer has no jurisdiction to recommend the discipline of an employee and any disposition flowing from such a proceeding will be void … . This jurisdictional defect is not waived by a petitioner’s failure to object at a disciplinary hearing … .

Here, in denying the petition and dismissing the CPLR article 78 proceeding, the Supreme Court erred in considering and relying upon the 1992 letter as a written designation pursuant to Civil Service Law § 75(2) since that letter was outside the record, and was not relied upon by the respondents, whose papers were rejected by the court … .

Moreover, the Supreme Court also erred in not considering the respondents’ cross motion to dismiss the petition. Pursuant to CPLR 404(a), the respondents were permitted to raise objections in point of law by a motion to dismiss the petition. Given the improper rejection of the respondents’ papers and the particular circumstances of this case, the court should have afforded the respondents an opportunity to submit a designation letter conferring jurisdiction upon the ALJ who conducted the subject disciplinary hearing prior to determining the petition on the merits. Matter of Lindo v Ponte, 2017 NY Slip Op 04282, 2nd Dept 5-31-17

ADMINISTRATIVE LAW (SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/EMPLOYMENT LAW (CIVIL SERVICE LAW, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL PROCEDURE (CIVIL SERVICE LAW, ADMINISTRATIVE LAW JUDGES, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CORRECTIONS OFFICER (DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/ADMINISTRATIVE LAW JUDGES (CORRECTIONS OFFICERS, DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL SERVICE LAW (EMPLOYMENT LAW, DISCIPLINARY PROCEEDINGS, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)

You might also like
CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT).
THE 2008 FORECLOSURE ACTION WAS DISMISSED BECAUSE THE BANK DID NOT HAVE STANDING; THEREFORE THE DEBT WAS NOT ACCELERATED IN 2008 AND THE STATUTE OF LIMITATIONS FOR FORECLOSURE DID NOT START RUNNING; PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE PROPERLY DISMISSED (SECOND DEPT).
THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT).
JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS.
BOTH PARENTS ACKNOWLEDGED A CHANGE IN THE CUSTODY ARRANGEMENT WAS NEEDED, FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION (SECOND DEPT). ​
THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT).
Rear-End Collision Warranted Summary Judgment on Liability
“Temporary Substitute Vehicle” Not Excluded from Supplemental Uninsured/Underinsured Motorist Policy

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD... DEFENDANT DID NOT DEMONSTRATE AN ADEQUATE EXCUSE FOR FAILURE TO ANSWER THE COMPLAINT,...