Matter of McEvoy v Oyster Bay Fire Co. No. 1.
2012 NY Slip Op 30826(U)
March 27, 2012
Supreme Court, Nassau County
Docket Number: 18049-11
Judge: Steven M. Jaeger
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
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
HON. STEVEN M. JAEGER,
Acting Supreme Court Justice
In the Matter of the Application of the
TRIAL/lAS , PART 41
INDEX NO. : 18049-
ROBERT W. MCEVOY
OYSTER BAY FIRE COMPANY NO.
OYSTER BAY FIRE DEPARTMENT , CHIEF
ANTHONY DECAROLIS , CHIEF FRANK
MANTEGARI , III , CHIEF ROY JOHANSON
and OYSTER BAY FIRE COMPANY NO.
DISCIPLINARY REVIEW BOARD
The following papers read on this motion:
Notice of Petition , Verified Petition
Verified Answer and Exhibits
Verified Reply and Exhibits
inter alia an order
This is an Article 78 wherein petitioner is seeking,
vacating and annulling the determination of the respondents ' dated September 28
2011 which suspended petitioner for a period of one year effective August 29
2011; and reinstating petitioner to his position as a volunteer firefighter for he
Oyster Bay Fire Company No. 1 and the Oyster Bay Fire Department , with full
rights and privileges
nunc pro tunc August 29
Petitioner has been a volunteer firefighter for the Oyster Bay Fire
Department , Oyster Bay Fire Company No. 1 for more than nine years and is over
the age of 18.
On August 29
2011 , petitioner responded to an emergency call for an
ambulance at Theodore Roosevelt Memorial Park in Oyster Bay. As a result of
, respondent preferred six charges against petitioner (see letter dated
September 6 ,
2011). Thereafter , petitioner consulted with and retained a lawyer
Frank Scalera. By letter dated September 22 , 2011 , Mr. Scalera denied each and
every claim made against petitioner , and formally requested that Chief DeCarolis
recuse himself as to any hearing or proceeding in this matter. By letter dated
September 24 2011 , respondents ' attorney, James Cammarata , Esq. , denied
petitioner s request and noted the Department' s disciplinary process. By letter
dated September 28 , 2011 , respondents suspended petitioner for a period of one
year based upon multiple acts and omissions including: " endangered the crew
responding on unit 5516; potentially endangered the safety other firefighters
responding to the scene; misleading the Nassau County Fire Communications
Center about the true nature of the alarm and in doing so misleading the Chiefs
and other personnel responding to the alarm; ignoring a direct order of a Chief
Officer; and acting disorderly and in manner unbecoming a member of the Oyster
Bay Fire Department."
Thereafter , petitioner appealed that decision to the Disciplinary Review
Board pursuant to the Constitution and By- Laws of Oyster Bay Fire Company No.
1. Specifically, in his letter dated
October 3 , 2011 ,
Mr. Scalera stated in pertinent
Please allow this letter to serve as Mr. McEvoy s formal demand under
Article V of the Constitution and By- Laws for a hearing before the Disciplinary
Review Board for the purpose of reviewing the matter " and demanded certified
copies of various documents. By letter dated November 3 2011 , Mr. Cammarata
advised Mr. Scalera that " (tJhe Disciplinary Review Board has agreed to a final
adjournment of this matter to November 15 2011 at 6:00 PM at Fire
At the Disciplinary Review Board hearing, petitioner was allegedly denied
his rights to present witnesses and evidence on his behalf, to cross-examine
respondents ' witnesses , and to question the accuracy, relevance , and probative
value of respondents ' evidence. Further , respondents did not proceed with its
burden of proof, no stenographic minutes were taken nor a record created.
addition , petitioner s attorney s request for the documents , writings , statements
and recordings supporting the charges was denied.
The Disciplinary Review Board affirmed and modified the one year
suspension as follows: six month suspension from active duty from August 29
2011 to February 28 2012 , followed by another six month suspension from Fire
Department. social functions and fund raisers from March 1 , 2012 to August 31
On December 29 2011 ,
petitioner filed the within Article 78 petition.
In support thereof, petitioner asserts that " (rJespondents patently denied
petitioner due process before and during the disciplinary proceedings. . . and
respondents ' acts , collectively and individually, were and remain unlawful
arbitrary and capricious.
18 of Petition).
In their answer , respondents allege that: the respondent corporation is
neither a political subdivision or a special district as described under the Civil
Service Law and as such , any requirement under Section 15 is inapplicable to the
matter; the discipline imposed was not made in violation of any lawful procedure
or error in law; and was neither arbitrary or capricious; and petitioner was not
denied the right to cross-examine witnesses.
Section 7803 provides , in part , that the only questions that may be raised in
a proceeding under this article are: . . . (3) whether a determination was made in
violation of lawful procedure , was affected by an error of law or was arbitrary and
capricious or an abuse of discretion , including abuse of discretion as to the
measure or mode of penalty or discipline imposed.
In reviewing an administrative determination , a court must ascertain
whether there is a rational basis for the action in question , or whether it is arbitrary
of Towns of Scarsdale
Board of Ed. of Union Free School Dist. No 1
(see Matter of Pell
, Westchester County,
Calogero 12 NY3d 424
see also Matter of Peckham
of Deerpark Farms
34 NY2d 222 231
Agricultural and Farmland Protection Board of
70 AD3d 1037 (2 Dept 2010)). An action is arbitrary and
capricious when it is taken without sound basis in reason or regard to the facts
Board of Educ. of Union Free School Dist. NO. 1 of Towns of
Matter of Pell
Mamaroneck, Westchester County, supra; see Matter of Birch Tree
Partners , LLCv Town of East Hampton 78 AD3d 693 (2nd Dept
(iJfthe court finds that the determination is supported by a rational basis , it must
sustain the determination even if the court concludes that it would have reached a
different result than the one reached by the agency
Calogero , supra
' see Kurcsics
(1980). Consequently, " courts
(Matter of Peckham
Merchants Mut. Ins. Co. 49 NY2d 451 , 459
must defer to an administrative agency s rational
interpretation of its own regulations in its area of expertise
(Matter of Peckham
As a general rule , a court wil not interfere with the internal affairs of a
not- for- profit corporation , including a labor union , absent a showing of fraud or
AD2d 834 (3
Civil Service Emp. Ass 'n
Matter of Gilheany
New York State Soccer Football Ass '
Soccer Football A 'ssn 18 Misc2d 112 ,
116 (195 8J.
Initially, the Court finds that petitioner is entitled to all the rights granted by
law to volunteer firefighters , including those set forth in Civil Service Law 9
Civil Service Law 9 75 grants to an exempt volunteer firefighter (as defined by
General Municipal Law 9 200) the protection of a hearing with due process prior
to the imposition of discipline.
154 Misc 291 , 292 (4
Civil Service Law 9 75 states the following:
1. Removal and other disciplinary action.
A person described in . . . paragraph (b) . . . of this
subdivision shall not be removed or otherwise subjected to
any disciplinary penalty provided in this section except for
incompetency or misconduct shown after a hearing upon
stated charges pursuant to this section.
(b) a person. . . who is an exempt volunteer firefighter as
defined in the general municipal law
General Municipal Law 9 200 states:
An exempt volunteer fireman is hereby declared to be a
person who as a member of a volunteer fire company duly
organized under the laws of the state of New York shall have
at any time after attaining the age of eighteen years faithfully
actually performed service in the protection of life and
property from fire within the territory immediately protected
by the company of which he is a member
resident therein , for a period of five years. . . .
, and while a
General Municipal Law 9 1 00 defines a fire company as
2. " Fire Company " means:
b. A fire corporation the members of which are volunteer
firemen and which was incorporated under oris subject to the
provisions of section fourteen hundred two of the not- forprofit corporation law , . . . or recognized as a fire corporation
by, the governing board of a city, town , vilage or fire
New York State Volunteer Firefighters ' Benefit Law 9 3 adds:
As used in this chapter:
1. " Volunteer fireman " means an active volunteer member of
a fire company.
2. " Fire Company " means:
b. A fire corporation incorporated under or subject to the
provisions of article ten of the membership corporations law
(Now Not for Profit Corporation Law) . . . or recognized as a
fire corporation by, the governing board of a city, town
vilage or fire district
As noted above , petitioner has been a volunteer firefighter for the Fire
Department for more than nine years and is above the age 18. Hence , petitioner
satisfies the requirements of General Municipal Law 9 200 for an exempt
The procedure established by Civil Service Law 9 75(2) conforms to the
essentials of due process.
397 U. S.
50 AD2d 687 (3 Dept 1975);
254 (1970). " Due process requires that an individual
be afforded an opportunity to be heard at a meaningful time and in a meaningful
87 NY2d 810 (1996);
Board of Education 221 AD2d 755 (3
Administrative Review Board 302 AD2d 635 (3
Dept 2003 J).
Civil Service 9 75 clearly provides inter alia that an employee may not be
subjected to a disciplinary reprimand without a formal hearing and other due
Civil Service 9 75 (1- 3)
Civil Service Employees Ass '
Southold Union Free School District 204 AD2d 445 (2 Dept 1994).
In the instant matter , the record does not substantiate respondents
contention that they comported with due process.
81 AD3d 820 (2
Michael D '
Dept 2011). Accordingly, the matter is remanded for further
proceedings and respondents are directed to conduct a hearing in accordance with
Civil Service Law 9 75.
This constitutes the Decision and Order of the Cou
Dated: March 27 2012
COtTY CLERK' S OFFICE