Matter of Palleschi v Cassano

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Matter of Palleschi v Cassano 2011 NY Slip Op 33131(U) December 1, 2011 Supreme Court, New York County Docket Number: 105486/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. lNED ON 12151201 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 1 :./I. I i' ;Jf l"pFz .c 3 . ,r PART 5 IN nnrmrhiT. ( Index Number : IO54861201I PALLESCHI, MICHAEL vs CASSANO, SALVATORE Sequence Number : 001 ARTICLE 78 L,4-L ............... I..I-.-_. . . Answerlng Amdavits p ----- Y .....---.- - Exhlblts o !NO(~). s ) . I J- INo@). Replylng Affldavlta Upon the foregoing paper$, It is ordered that this motion is PIEW YCMK COUNTY CLEHK'S OFFICE , J.S.C. Dated: "BARBARA JE$ FF >/' I.CHECK ONE: ..................................................................... ,.- 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: ................................................ : r ,~QN-FINAL DISPOSITION DENIED SETTLE ORDER 0DO NOT POST [L7 GRANTED IN PART 0OTHER 0SUBMIT ORDER uFIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. 105486111 Petitioner, Motion Date: Motion Seq. No.: Calendar No.: 911311 1 00 1 80 DECISION & JUDGMENT For a Judgment under Article 78 o l the Civil Practice Law and Rules, -against- SALVATORE CASSANO, Coinmissioner of the New York City Fire Department and the NEW YORK CITY FIRE DEPARTMENT, FILED DE@05 2011 NEW YORK COUNTY CLERKS OFFICE For petitioncr: Kevin P. Sheerin, Esq. 323 Willis Avenue, Suite I Mineola, NY 1 1 501 5 16-248-3494 For respondents: Courtney B. Stein Michael A. Cal-dozo Corporation Counsel 100 Church Street 212-788-1202 By notice of motion dated May 9,201 1, petitioner brings this Article 78 proceeding seeking an order annulling respondents' decision to terminate his employment or, in the alternative, transferring the matter to the Appellate Division on thc ground that thc decision was not supported by substantial evidence. Respondents assert affirmative dcfenses and also request transfer to the Appellate Division. [* 3] I. PACKGROUND In 1998, pctitioner was appointed by respoiidcnt New York City Fire Department (FDNY) as an enicrgeiicy medical technician, and in 1999, was promoted to paramcdic. (Pet., Exh. A), In 2008, he was promoted to lieutenant. (Id.). On April 8, 2010, at 4:07 a.m., whcn petitioner was on duty, an individual called 9-1-1 seeking einergcncy medical attention. (Id.). Details of the call appeared on the mobile data terminal in petitioncr s vehicle, inclding the caller s address and telephone number and the iiaturc of her emergency, vaginal swelling [and] . . . burning. ( A m , Exhs. 3, 511). Using his mobile telephone, petitioner photographed the terminal s display and unsuccessfully attempted to exclude the caller s add.ress and number. (Id., Exhs. 3, 5D). Hc then posted the photograph on his Pacebook page such that his 460 Facebook i riends could sec it, noting that [hc] [clan? make this up. (Id., Exhs. 3, 5E). On April 27, 20 10, thc FDNY preferred disciplinary charges against petitioner, specifying, in pertincnt part, as follows: On or about 4/8/10, Lieutenant Michael P. Palleschi, Station 39, violated the Fire Departmcnt s EMS Operating Guide Procedure Number 10 1-01 Section 4.2.1 when he used confidential and privileged infbrniation concerning a patient suffering from a gyiiccological einergcncy to amuse members of an online social forum. . . The membcr photographed a mobile data terminal displaying this privilegcd information, which included responding member[s ] names and shield numbers, medical information, call location, and callback number of a patient and posted the photograph on the external online social forum. (Id., Exh. 1). On May 10, 201 0, pursuant to the collective bargaining agreement bctween the FDNY and petitioner s union, a Step I disciplinary hearing was held. (Id,,Exh. 2). On June 14,2010, 2 [* 4] the hearing officer issucd his dccision, dctcrmining that the FDNY proved all of the cliargcs by a preponderance of the evidence and recommending the following penalty: a 60-day pay h e , reassignment to another division, 18 months of Tour 11 deployment, confidcntiality training, restriction from paticnt care until completion of same, and 24 months o l probation. (Id.). Petitioner appealed this decision, and on October 12, 2010, a hearing was held before an administrative law judge. (Id., Exh. 3). Petitioner testificd on his o w n behalf, admitting that he had photographed the display and posted it on Facebook, that it contained coniidential information, and that he was prohibited from disclosing such inl onnation but clainiing that he attempted to exclude tlic confidential information l?om the photograph. (Id.), He also offercd into evidence l i s counscling records from 2004 to the date of the hearing, claiming that health problems had contributed to his conduct. (Id., Exhs. 3,4) On December 20,201 0, the administrative law judge issued licr rcport and recommendation, sustaining all of the charges and recommending that pctitioner be tcrminated. (Id., Exh. 4). She hund based on petitioner s admission that he had imperniissibly disclosed confidcntial patient information by posting the photograph on Facebook, and in describing his conduct, noted that: [olther inane and smutty material denigrating women and full of sexual innuendo was included in the messages [petitioner] exchanged with his friends in the weeks leading up to this incidcnt. , , , J am not considering these earlier, silly Facebook entries as misconduct, as [petitioner] was not charged for posting these, but mention them simply to show how reckless Iic was in his public postings on the web. Although the administrative law judge acknowledged that pctitioner had expressed remorse for his actions and had a satisfactory work history, she detcrmined that terinination is an 3 [* 5] appropriate penalty given his position as a role model, his awareness that what he was doing was wrong, and the egregiousness of his conduct. (Id.). She also noted that his counseling records disclosed no diagnosis that could have caused pctitioner to act as hc did. ( I d ) . By letter datcd Deccmber 30, 20 10, the Assistant Commissioncr of the FDNY informed petitioner that the adininistrative law judge had issued hcr report and recornmcndation, annexing a copy of it thereto, and that hc had until January 7, 20 1 1 to provide a statcrnent regarding his penalty to the FDNY Cornmissioner. (id., Exh. 6). By letter datcd January 13, 201 I , petitioner clainicd that termiliation was an inappropriate pcnalty in light of his employment history and lack of malice, and rcquested a less severe penalty. (Id., Exh. 7). By letter datcd January 13, 201 1 respondent Salvatore Cassano, Commissioner of the FDNY, informed petitioner that he concurred with the administrative law judge s report and recommendation and that his employment would be terminated effective January 21, 201 1. ( I d 7 Bxh. 8). u, CONTENTIONS Petitioner contends that the administrative law judge s decision is arbitrary and capricious and was affcctcd by an crror of law, as she iinpropcrly considered evidence outside of. the record, petitioner s prior Facebook posts and his fricnds comments thereon, and that the penalty of termination shocks onc s sensc of fairness. (Pet.). Altcmatively, he claims that the evidence offered at the hearing was insufficient to support the administrative law judge s findings of guilt, and thus, that the matter should be transfcrred to the Appellate Division. (kl.). Respondents claim that petitioner has failed to state a cause of action, denying that thc decision was arbitrary or capricious and that termination is an excessive penalty. (Ans.). They 4 [* 6] also assert that, as there exist issues of substaiitial evidence, the matter inust be transfcixd to the Appellate Division. (Id.). 111. ANALYSIS When an administrative determination is made following a hearing required by law, and a claim of substantial evidence is raised, the court shall first dispose oisuch other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata[, and] [i]f the determination of the other objections does not terminate thc proceeding, the matter iiiust be transkrred to the Appellate Division. (CPLR 7803[41, 7804[g]; Siegel, NY Prac 5 568 [4t ed]). As respondents object to the petition on thc ground that it fails to state a cause of action, it must first be addressed. (See Matter qf Rurgessv S eZ.~ky,270 AD2d 736 [3d Dept 20001 [trial court crred in failing to consider motion to dismiss petition before transferring matter to Appellate Division]; Mutter. of Spry v Deluwure Couniy, 253 AD2d 178 [3d Dept 19991 [motion to dismiss for failurc to state of cause of action considered objection that could terminate proceeding]). Pursuant to CPLR 321 l(a)(7), a party may move at any time for an ordcr dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must libcrally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference. (Lran 17 Martinez, 84 NY2d 83, 87 [ 19941; Posner. v Lewis, 80 AD3d 308 [ lqtDept 20 lo]). The court need only determine whether the alleged facts fit within any cognizable legal theory. (Ilurris v IC; Greenpoint Corp,, 72 AD3d 608 11 Dept 20101). Judicial rcview of an administrative agency s decision is limited to whether the decision 5 [* 7] LLwas made in violation of lawful procedure, was aflected by an error of law or was arbitrary aiid capricious or an abuse of discrction, including abuse of discretion as to the measure or mode of penalty or discipline imposcd. (CPLR 7803 [3]). The slandard for reviewing a penalty imposed after an administrative hearing is whether the punishineiit imposcd is so disproportionate to thc offense, in the light of all the circuinstanccs, as to be shocking to one s seiisc of fairness. (Mutter of Pell v Rd, of E d i ~ IJnion Free School Dist. No. 1 of Towns qf ,Ycursdule & of Mamcrroneck, Westchester C ounty, 34 NY2d 222, 233 [ 19741). Here, petitioner claims that the administrative law judge s decisioii is arbitrary and capricious and was afiected by an error of law in that she improperly considered evidcnce outsidc ofthe record, and he maintains that his termination shocks one s sense of fairness. Accepting thcse allegations as true, aiid liberally coiistruing the petition, petitioner has stated a cause of action pursuant to CPLR 7803(3). Consequently, as my determination on respondents motion to dismiss does not terminate the instant proceeding, and as the parties agrcc that there exist issues of substaiitial evidence, I inay not consider the merits of the petition, and this matter inust bc transferred to the Appellate Division. (CPLR 7804[g]). IV. CONCJdL JSION Accordingly, it is hereby ORDERED, that, pursuant to CPLR 7804(g), the application by petitioner seeking to annul a detcrminatioii by respoiidcnts Salvatorc Cassano, Conmissioner of the New York City Fire Department, and the New York City Fire Departincnt is rcspectfully transferred to the 6 [* 8] Appellate Division, First Department, for disposition. This proceeding involves an issue as to whether a determination made after a hcariiig hcld pursuant to direction of law and at which evidence was taken is, on the entire record, supported by substantial evidcnce (CPLR 7803141); and it is further ORDERED, that petitioner serve a copy of this order with notice of entry upon the County Clcrk (Room 141B), who is dircctcd to transfer the lile to the Appellate Division, First Department. ENTER: DATED: December 1 , 2 01 1 New York, New York 7

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