Matter of Amorosano-Lepore v Grant
Annotate this CaseDecided on July 16, 2007
Supreme Court, Westchester County
In the Matter of the Application of the Gina Amorosano-Lepore, Petitioner, For a Judgment Pursuant to CPLR Article 78
against
Anthony J. Grant, Esq., Individually, and JAMES GENEROSO, as Clerk of the Court of the City of New Rochelle, NY, the CITY MANAGER of the City of New Rochelle, the CIVIL SERVICE ADMINISTRATOR of the City of New Rochelle, and the PERSONNEL DIRECTOR of the City of New Rochelle, Respondents.
06/20341
LOVETT & GOULD, LLP
Attorneys for Petitioner
222 Bloomingdale Road
White Plains, New York 10605
By: Jonathan Lovett, Esq.
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
Attorneys for Respondent City of New Rochelle
Three Gannett Drive
White Plains, New York 10604
By: Joanna M. Topping, Esq.
HON. ANDREW M. CUOMO
Attorney General, State of New York
Attorney for Respondent James Generoso
101 East Post Road
White Plains, New York 10601
By: Constantine A. Speres, Esq.
ANTHONY J. GRANT, ESQ.
Respondent 256 West Main Street
Mount Kisco, New York 10549
Lester B. Adler, J.
This is an Article 78 proceeding in which petitioner is seeking to nullify, vacate and otherwise declare void the determination which, after a hearing, terminated petitioner from her position with the City Court of the City of New Rochelle, New York. Petitioner further seeks an order transferring the matter to the Appellate Division, Second Department on a substantial evidence question.
In lieu of an answer, respondents City of New Rochelle, City Manager of the City of New
Rochelle, the Civil Service Commissioner of the City of New Rochelle, and the Personnel
Director of the City of New Rochelle (hereinafter referred to collectively as the "City of New
Rochelle"), move to dismiss the petition upon, inter alia, an objection in point of law that
petitioner lacks standing to maintain this proceeding based upon her failure to exhaust
administrative remedies under the collective bargaining agreement (the "CBA"). Respondent
James Generoso ("Generoso") has cross-moved pursuant to CPLR §§1003 and 7804(f)
for an order dropping him as a party on the ground that he is not a necessary or proper party to
the action. Respondent Anthony J. Grant, Esq. ("Grant") has not answered or otherwise moved
[*2]against the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The petition alleges that, prior to the determination to terminate her employment, petitioner was a "permanent, tenured, competitive class" civil service employee with the City of New Rochelle. On or about April 29, 2005, Generoso, in his capacity as the Court Clerk of the City Court of the City of New Rochelle, preferred disciplinary charges against petitioner "purportedly" in accordance with Article XII of the CBA between "The City of New Rochelle, NY and the Civil Service Employee's Association, Inc., Westchester Local 860, New Rochelle Unit." In connection with the charges, on or about June 8, 2005, Generoso appointed Grant, an attorney practicing in the private sector, as the hearing officer.
A hearing was conducted during the period from July 2005 to January 2006. On or about July 28, 2006, Grant rendered a Hearing Officer's Report finding petitioner guilty of the charges. Petitioner's employment was thereafter terminated by the City of New Rochelle and Generoso on August 4, 2006.
Petitioner contends that Generoso was not a "Department Head" of any department of the City of New Rochelle, and that he is an employee of the New York State Unified Court System. Consequently, petitioner argues that he lacked the authority to prefer the disciplinary charges and/or to delegate Grant the power to conduct the disciplinary hearing. Petitioner further claims that the City of New Rochelle is not "vested with the power or authority to terminate Petitioner's employment with the City since none of them are or were Petitioner's appointing authority' for purposes of the New York State Civil Service Law." As a result, petitioner claims that the termination of her employment was void and illegal. Petitioner further claims that: 1) the determination to terminate her employment was not supported by substantial evidence; 2) Grant was biased and unfair; 3) the failure to fashion the punishment imposed in accordance with established case law renders the determination illegal, arbitrary and capricious; 4) respondent's failure to serve a bill of particulars violated her right to procedural due process; 5) Grant's conduct of the disciplinary hearing denied petitioner elementary fairness; 6) it was error for Grant to refuse to recuse himself; 7) the punishment imposed was excessive; and 8) the final administrative determination was a nullity since both the City of New Rochelle and Generoso lacked jurisdiction to terminate her employment.
The CBA between petitioner's union, Civil Service Employee's Association, Inc. ("CSEA"), and the City of New Rochelle specifically addresses the issue of disciplinary action stating in Article XII Section 1 that the disciplinary procedures set forth therein "shall apply to all employees covered by Section 75 and 76 of the Civil Service Law in lieu of the procedure specified in said section." A person against whom removal or other disciplinary action is proposed must receive written notice of the charges and the proposed penalty (CBA, Article XII Section 3). Upon receiving such notice, the employee has the right to request a hearing (CBA, Article XII Section 5). Such hearing must be held before a department head, or by a hearing office designated by the department head, and the decision of the hearing officer is final and binding unless arbitrary and capricious (CBA, Article XII Section 6).
Pursuant to Article XII Section 6 of the CBA, the binding arbitration provision contained therein applies in the event an employee involved in a disciplinary proceeding wishes to appeal the decision of the hearing officer. Pursuant to Article XI Section 6 of the CBA, arbitration must [*3]be conducted by an arbitrator elected by the employer and the union as soon as possible after notice of intention to proceed to arbitration has been given. Such request for arbitration must be formally requested by either party within 60 working days "following the action or occurrence which gives rise to the issue to be arbitrated."
Article XI of the CBA further provides for a three-step grievance process to be utilized in the settlement "of any grievance or dispute which may arise * * * including the application, interpretation or enforcement of this AGREEMENT." The first step in the grievance procedure provided for in Article XI Section 2 requires the employee to file a written grievance with his or her immediate supervisor within ten work days of its occurrence. If the grievance is not settled at the first stage, Article XI Section 3 provides that either the employee or the union must present the grievance, in writing, to the department head within five work days following the supervisor's response. Article XI further provides for the completion of the multistep grievance procedures by the referral of the grievance to binding arbitration upon the service of written notice requesting arbitration by either party.
The City of New Rochelle moves to dismiss the petition on the ground, inter alia, that petitioner has failed to exhaust her administrative remedies. In opposition, petitioner argues that she asked the president of the local chapter of the CSEA to file a grievance on her behalf, but that, as a close personal friend of Generoso, he repeatedly and steadfastly refused to do so," and instead suggested that petitioner wait until the expiration of his term. Petitioner alleges that she then contacted the statewide CSEA and was referred to another CSEA representative who advised her he would have the union file a grievance on her behalf. Petitioner claims she never received a copy of such a grievance notwithstanding her request for one.
In reply, the City of New Rochelle contends that, regardless of whether any grievances were
filed prior to the hearing, petitioner had the right to appeal the determination by filing a request
for arbitration. The City of New Rochelle also opposes petitioner's motion to transfer the
proceeding pursuant to CPLR §7804(g) on the ground that the substantial evidence standard
of review is inapplicable to this matter.[FN1]
LEGAL ANALYSIS
The City of New Rochelle's motion to dismiss the petition pursuant to CPLR §7804(f) is based on its contention that petitioner lacks standing to maintain the proceeding based upon her failure to pursue the grievance and/or appeal procedures as set forth in the CBA.
As a preliminary matter, petitioner contends that, based upon the controlling case law, the Court is prohibited from considering the CBA, a copy of which is attached as Exhibit A to the City of New Rochelle's motion to dismiss. The Court is mindful of the fact that in determining a motion to dismiss pursuant to CPLR §7804(f) on an objection in point of law, "only the petition is to be considered and all of its allegations are to be deemed true" (Matter of Long Island Contractors Assn. v. Town of Riverhead, 17 AD3d 590, 793 NYS2d 494; Matter of Zaidins v. Hashmall, 288 AD2d 316, 317-317, 732 NYS2d 870; see also Green Harbour Homeowner's Assn. v. Town of Lake George Planning Bd., 1 AD3d 744, 745, 766 NYS2d 739 [court may also consider affidavits submitted by a petitioner and the exhibits [*4]attached to the petition on such a pre-answer motion]).
However, the Court is unpersuaded by petitioner's argument and the case law cited in support thereof that a review of the CBA is prohibited in connection with a determination of the City of New Rochelle's motion to dismiss. Although petitioner does not quote from the CBA, she raises issues of contractual interpretation of its provisions in both the petition and her opposition papers. Additionally, references are made in the petition to the CBA and some of its provisions. In fact, one of the claims asserted in the petition is that, since neither the State of New York nor Generoso, as an employee of the New York State Unified Court System, is a signatory to the CBA, he lacked the authority to prefer disciplinary charges and/or to appoint Grant as hearing officer. Furthermore, petitioner avers in her opposition papers that, but for the actions of the CSEA, it was her "intention to grieve every adverse action taken by [Generoso] with respect to her — including but not limited to every aspect of the disciplinary charges, their preferral, the appointment of the hearing officer, the hearing officer's report/recommendations, and the termination of her employment." Consequently, it appears incongruous and inequitable that petitioner can raise issues in which the CBA and its provisions are implicated and then argue that the Court is prohibited from considering the CBA merely because she has chosen not to attach a copy of it to the petition or her opposition papers.
As stated above, the facts as alleged in the petition are that on April 29, 2005, Generoso, the Court Clerk of the City of New Rochelle, preferred disciplinary charges against petitioner, a civil service employee with the City of New Rochelle, "purportedly" in accordance with Article XII of the CBA. In connection with the charges, on or about June 8, 2005, Generoso appointed Grant, an attorney practicing in the private sector, as the hearing officer. Thereafter, a hearing was conducted during the period from July 2005 to January 2006. On or about July 28, 2006, Grant rendered a Hearing Officer's Report in which petitioner was found guilty of the charges and her employment was terminated. Petitioner's employment was subsequently terminated by the execution of a City of New Rochelle" PERSONNEL ACTION FORM" on August 4, 2006 by the City of New Rochelle.
In petitioner's affirmation in opposition to the City of New Rochelle's motion to dismiss it is
further alleged that, despite her requests, the president of her local chapter of the CSEA refused
to file a grievance on her behalf. His refusal prompted petitioner to contact the office of the
statewide CSEA president, who advised her that his office could not assist her and eventually
referred her to another CSEA representative. Petitioner alleges that this individual advised her
that he would have CSEA file a grievance on her behalf, however, she never received a copy of
the grievance despite
her request for one. Petitioner contends that she attempted to file grievances against
Generoso through her union, but that such efforts were futile.
Pursuant to well settled law, "one who objects to the act of an administrative agency must exhaust administrative remedies before being permitted to litigate in a court of law" (Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d 52, 57, 412 NYS2d 821, 385 NE2d 560; see also Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation, 87 NY2d 136, 638 NYS2d 388, 661 NE2d 961; Matter of Muzzillo v. Mount Vernon City School Dist., 238 AD2d 424, 657 NYS2d 353; Matter of Hammond v. Elmsford, 8 AD3d 484, 779 NYS2d 95; Matter of Brunjes v. Nocella, 40 AD3d 1088, ___ NYS2d ___). However, the [*5]exhaustion rule is not inflexible, and need not be followed "when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury" (Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d at 57 [citations omitted]; see also Matter of New York State Correctional Officers and Police Benevolent Assn. v. State, 301 AD2d 845, 753 NYS2d 393; Martinez 2001 v. New York City Campaign Fin. Bd., 36 AD3d 544, 829 NYS2d 55).
Petitioner, as a member of the CSEA, was bound by the terms of the CBA which had been negotiated for and made on her behalf (see Matter of Plummer v. Klepak, 48 NY2d 486, 423 NYS2d 866, 399 NE2d 897, cert. denied 445 U.S. 952, 100 S. Ct. 1601, 63 L. Ed. 2d 787; see also Feher v. John Jay Coll. of Criminal Justice, 37 AD3d 307). The CBA expressly provides in Article XII Section 1 that the disciplinary procedure outlined therein replaces the protections and/or procedures contained in Civil Service Law §§75 and 76 (see Matter of Delmage v. Mahoney, 224 AD2d 688, 639 NYS2d 66, lv. denied 88 NY2d 812, 649 NYS2d 379; Matter of Hall v. Town of Henderson, 17 AD3d 981, 982, 794 NYS2d 231, lv. denied 5 NY3d 714, 806 NYS2d 165, 840 NE2d 134; cf. Matter of Dombroski v. Bloom, 170 AD2d 805, 565 NYS2d 907). Petitioner does not challenge the applicability of the grievance and/or appeal procedures set forth in the CBA. Rather, she argues that she is exempt from the exhaustion of her administrative remedies on several grounds.
The Court will first address petitioner's contention that, since she is claiming a deprivation of procedural due process in the conduct of the disciplinary hearing, she was not required to exhaust her administrative remedies before seeking judicial relief under CPLR Article 78. While it is well recognized that the exhaustion of administrative remedies is not required where the agency's action is challenged as unconstitutional, "the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief" (Matter of Tasadfoy v. Town of Wappinger, 22 AD3d 592, 592, 802 NYS2d 219 citing Matter of Dozier v. New York City, 130 AD2d 128, 133, 519 NYS2d 135; see also Timber Ridge Homes at Brookhaven v. State, 223 AD2d 635, 636, 637 NYS2d 179, lv. denied 88 NY2d 802, 644 NYS2d 689, 667 NE2d 339; Siao-Pao v. Travis, 23 AD3d 242, 804 NYS2d 724). Moreover, this exception to the exhaustion requirement is itself subject to limitation, for "[a] constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established" (Matter of Dozier v. New York City, 130 AD2d at 135; Matter of Tasadfoy v. Town of Wappinger, 22 AD3d at 592)
Petitioner does not challenge the constitutionality of the grievance and or appeal procedures as set forth in the CBA. Instead, she claims that her right to procedural due process was violated by Grant's conduct of the hearing. The Court is unpersuaded that petitioner's procedural due process argument is the type of unconstitutional agency action that is exempt from the exhaustion doctrine, for "[t]his exemption is limited to situations where the statute or administrative scheme itself is alleged to be unconstitutional, thus undermining the legality of the entire proceeding" (Martinez 2001 v. New York City Campaign Fin. Bd., 829 NYS2d at 59 [citations omitted]). In any event, her claim rests upon factual issues which were reviewable at the administrative level and, therefore, petitioner has failed to demonstrate the applicability of this exemption to the instant matter (see Matter of Levine v. Board of Educ. of City of New [*6]York, 186 NY2d 743, 744, 589 NYS2d 181, lv. denied 81 NY2d 710, 599 NYS2d 804, 616 NE2d 159).
Petitioner further contends that she is exempt from the exhaustion requirement based upon
her claim that Generoso lacked the authority to prefer the disciplinary charges against her and to
appoint Grant as the hearing officer, as well as her claim that Grant's action of conducting the
hearing was entirely beyond his authority. As stated above, petitioner acknowledges in the
petition that she is a civil servant and a
member of the CSEA. She does not dispute that she is subject to the terms and
conditions of the CBA, nor does she challenge the legality of its provisions.
As with petitioner's claim of procedural due process, her claim regarding Generoso's and Grant's authority involves factual issues. Pursuant to the grievance and/or appeal procedures set forth in the CBA, the issue regarding Generoso's status as a "department head" and, consequentially, his authority to prefer charges and appoint a hearing officer, involved "issues directly related to the interpretation, application or enforcement of the provisions of [the CBA]" and, therefore, were first reviewable by an arbitrator (see generally Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn.), 93 NY2d 132, 688 NYS2d 463, 710 NE2d 1064); Matter of New York City Trans. Auth., 284 AD2d 466, 726 NYS2d 694, lv. denied 97 NY2d 610, 740 NYS2d 694, 767 NE2d 151).
Turning now to petitioner's claim that pursuit of the grievance procedure would have been futile, the futility of administrative relief is established where the determination of the reviewing agency is not binding but merely advisory (see Love v. Grand Temple Daughters, 37 AD2d 363, 325 NYS2d 368), or where it is shown that it is unlikely that petitioner would receive an unbiased review (see Counties of Warren & Washington Indus. Dev. Agency v. Village of Hudson Falls Bd. of Health, 168 AD2d 847, 565 NYS2d 236), or where it can be established that the reviewing agency had a long-standing policy contrary to petitioner's position (see Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation, 87 NY2d 136).
As stated above, the CBA provided for a three-stage grievance procedure. The first step required that a grievance be filed with petitioner's immediate supervisor. The second stage required either the petitioner or the CSEA to present the grievance to the petitioner's department head for review. At the third stage, the CSEA was permitted, but was not required, to submit the grievance to the director of personnel. Even assuming, as the Court must for purposes of determining the instant motion, that the CSEA failed and/or refused to file a grievance on her behalf despite her requests, petitioner has failed to allege that she was precluded from filing such grievance on her own behalf or that she filed, or attempted to file, a request for arbitration following the determination terminating her employment.
Additionally, petitioner does not allege any facts from which it may be concluded that it was unlikely that she would receive an unbiased review of a grievance and/or appeal of the determination (see Waterways v. Dev. Corp. v. Lavalle, 28 AD3d 539, 813 NYS2d 485), or that the issues to be raised therein had been predetermined (see Matter of Grattan v. Department of Social Serv. of State of NY, 131 AD2d 191, 521 NYS2d 162, lv. denied 70 NY2d 616, 526 NYS2d 436, 521 NE2d 44).
In light of petitioner's failure to avail herself of the grievance and/or appeal procedures set [*7]forth in the CBA, and in the absence of a showing that any of her challenges to the determination fall within the exemptions, the proceeding is barred pursuant to the exhaustion of administrative remedies requirements applicable to CPLR Article 78 proceedings (see Matter of Muzzillo v. Mount Vernon City School Dist., 238 AD2d 424; Matter of Robinson v. New York City Tr. Auth., 226 AD2d 467, 641 NYS2d 55; Carlen v. Harris, 140 AD2d 288, 527 NYS2d 538, appeal denied 73 NY2d 709, 540 NYS2d 1004, 538 NE2d 356).
Since the petition is dismissed based upon petitioner's failure to exhaust her administrative remedies, the Court need not reach the merits of the motion to transfer the proceeding to the Appellate Division, Second Department on an alleged substantial evidence issue (see Matter of Casalino Interior Demolition Corp. v. State of New York Dept. of Motor Vehicle Traffic Violations Bur. Appeals Bd., 261 AD2d 615, 690 NYS2d 685; Matter of Duso v. Kralik, 216 AD2d 297, 627 NYS2d 749; Matter of Magwood v. Glass, 240 AD2d 409, 658 NYS2d 401; Matter of Carroll v. County of Putnam, 271 AD2d 443, 706 NYS2d 888, lv. denied, 97 NY2d 605, 737 NYS2d 53, 762 NE2d 931).[FN2]
As stated above, petitioner does not oppose Generoso's cross-motion to be dropped as a party pursuant to CPLR §§1003 and 7804(f).
Accordingly, it is hereby
ORDERED, that respondent City of New Rochelle's motion to dismiss the petition for failure to exhaust administrative remedies is granted; and it is further
ORDERED, that respondent Generoso's unopposed motion to drop him as a party is granted; and it is further
ORDERED, that respondent Grant submit an answer within 20 days of the entry of this Decision and Order (see CPLR §7804[e]).[FN3]
This constitutes the opinion, decision, order and judgment of this Court.
[*8]
Dated: White Plains, New York
July 16, 2007
Hon. Lester B. Adler
SUPREME COURT JUSTICE
LOVETT & GOULD, LLP
Attorneys for Petitioner
222 Bloomingdale Road
White Plains, New York 10605
By: Jonathan Lovett, Esq.
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP
Attorneys for Respondent City of New Rochelle
Three Gannett Drive
White Plains, New York 10604
By: Joanna M. Topping, Esq.
HON. ANDREW M. CUOMO
Attorney General, State of New York
Attorney for Respondent James Generoso
101 East Post Road
White Plains, New York 10601
By: Constantine A. Speres, Esq.
ANTHONY J. GRANT, ESQ.
Respondent
256 West Main Street
Mount Kisco, New York 10549
Footnotes
Footnote 1:Petitioner has not responded to
this portion of the City of New Rochelle's motion.
Footnote 2:The Court notes, however, that
were it to reach the merits of petitioner's motion, relevant case law would seem to indicate that
the motion should be denied. Petitioner does not dispute the fact that, as a civil service employee
of the City of New Rochelle, she was subject to the provisions of the CBA. It is well settled that
"a contract provision in a collective bargaining agreement may modify, supplement, or replace
the more traditional forms of protection afforded public employees, for example, those in
sections 75 and 76 of the Civil Service Law which delineate procedures and remedies available
to employees to challenge disciplinary action taken or proposed to be taken against them by their
employers" (Dye v. New York City Tr. Auth., 88 AD2d 899, 899, 450 NYS2d 587,
affd. 57 NY2d 917, 456 NYS2d 760, 442 NE2d 1271; Carroll v. Gunn, 116
AD2d 686, 688 ).
In the present case, the disciplinary hearing was held pursuant to Article XII of the
CBA. "Since the hearing was mandated by the [CBA] and not by Civil Service Law §75,
the substantial evidence' standard of review does not apply and the arbitrary and capricious'
standard is appropriate" (Matter of Marin v. Benson, 131 AD2d 100, 103 ; Matter of
Pierino v. Brown, 281 AD2d 960 ).
Footnote 3:It is inappropriate to issue a
default judgment "merely upon the basis of a failure to answer [a] petition on the return date
thereof, unless it appears that such failure to plead was intentional and that the administrative
body has no intention to have the controversy determined on the merits" (Tanalski v. New
York State Div. of Human Rights, 262 AD2d 117, 118 ; Murray v. Matusiak, 247
AD2d 303, ; Matter of Abrams v. Kern, 35 AD2d 971).
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