You are here: / / BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT...
, , , ,

BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers are extremely limited:

Civil Service Law § 76(1) permits a person whose civil service employment has been terminated to “appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with [article 78].” If the former option is chosen, “[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court” … . The Court of Appeals has clarified that, despite the plain language in the statute, judicial review is not completely foreclosed … . Rather, the article 78 court, instead of being guided by the substantial evidence or arbitrary and capricious standards of review, is limited to reviewing whether “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction” … .

Petitioners argue that CSC acted unconstitutionally because it relied on the statements of the inmates, who never testified, thus depriving petitioners of any chance to cross-examine them. However, this point is unpreserved. Petitioners fail to point to anything in the record showing that they ever sought to cross-examine or call the inmates and were denied that opportunity. More importantly, they never protested that their constitutional rights were being violated. This Court has “no discretionary authority” to “reach[] an unpreserved issue in the interest of justice” in an article 78 proceeding challenging an administrative determination … , including issues touching on due process … and evidentiary challenges … . Matter of Almanzar v City of New York City Civ. Serv. Commn., 2018 NY Slip Op 08062, First Dept 11-27-18

ADMINISTRATIVE LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/CIVIL PROCEDURE  (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/EMPLOYMENT LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/APPEALS (CIVIL SERVICE COMMISSION, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))

You might also like
THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).
CUSTODY SHOULD NOT HAVE BEEN TRANSFERRED TO FATHER AND ALL CONTACT BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN SUSPENDED WITHOUT A HEARING, JUDGE, SUA SPONTE, SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS FOR CUSTODY OR VISITATION BY MOTHER (FIRST DEPT).
THE THREAT MADE BY DEFENDANT WAS PERSONAL IN NATURE AND WAS NOT DIRECTED AT THE CIVILIAN POPULATION WITHIN THE MEANING OF THE TERRORISM STATUTE (PENAL LAW 490.20); THE CONVICTION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​
EVIDENCE BUILDING OWNER HAD KNOWLEDGE OF THE ELEVATOR MISLEVELING, EVIDENCE THE ELEVATOR MAY NOT HAVE BEEN PROPERLY MAINTAINED, AND THE APPLICABILITY OF RES IPSA LOQUITUR REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).
BROWN PAPER ON TOP OF GREEN DUST ALLEGEDLY CONSTITUTED A SLIPPERY CONDITION ON THE FLOOR CAUSING PLAINTIFF’S SLIP AND FALL, PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​
FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION.
PRESENCE OF POLICE OFFICERS AND OFFICER’S STATEMENT TO THE VICTIM DID NOT RENDER THE SHOWUP INDENTIFICATION UNDULY SUGGESTIVE.
PETITIONER FIREFIGHTER WAS INJURED WHEN HE BECAME DEHYDRATED DURING TRAINING; HE WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE THE INJURY DID NOT OCCUR AS A RESULT OF AN UNEXPECTED EVENT (FIRST DEPT). ​

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR... ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS,...