Matter of Lewis v Kelly
Annotate this CaseDecided on December 1, 2008
Supreme Court, New York County
In the Matter of the Application of Crystal Lewis, Petitioner,
against
Ray Kelly POLICE COMMISSIONER NYC POLICE DEPT. THE CITY OF NEW YORK, Respondents.
107131/2008
Appearances:
For Petitioner:
Martin Druyan & Associates, Esqs.
By: Martin Druyan, Esq.
450 Seventh Avenue, Suite 3303
New York, New York 10123
(212) 279-5577
For Respondents:
Michael A. Cardozo, Esq.
Corporation Counsel of the City of New York
By: Robert J. Anderson, Esq.
New York City Law Department
100 Church Street, Room 2-124
New York, New York 10007
(212) 788-0860
Michael D. Stallman, J.
In this Article 78 proceeding, petitioner seeks mandamus compelling the New
York City [*2]Police Department (NYPD) to comply with a
determination of the Civil Service Commission directing petitioner to be restored to her position
within 15 days of its determination. Petitioner also seeks back pay, because the NYPD did not
restore her to her position until seven months later, on August 18, 2008.
BACKGROUND
Petitioner's employment at the New
York City Police Department (NYPD) was terminated following a disciplinary hearing pursuant
to Civil Service Law § 75. Petitioner appealed the determination to the Civil Service
Commission pursuant to Civil Service Law § 76. By determination dated April 1, 2008, the
Civil Service Commission concurred with the Assistant Deputy Commissioner's findings as to
the charges and specifications against petitioner, but found that termination was not warranted,
given petitioner's long tenure and minor disciplinary history. The Commission therefore modified
the determination of the NYPD to a suspension of time served from the date of her dismissal to
the date of its determination. The Commission directed that petitioner be restored to her position
within 15 days from its determination.
DISCUSSION
Petitioner seeks mandamus compelling respondent to restore her to full pay and employment status as a civilian Police Administrative Aide, pursuant to the Civil Service Commission's determination. Petitioner also seeks an order granting petitioner back pay after April 15, 2008, because the Civil Service Commission directed respondent to be restored to her position within 15 days of its determination. It is undisputed that petitioner returned to work on August 18, 2008. Therefore, the only remaining issue of this petition is whether petitioner is entitled to any back pay as of April 16, 2008 until she resumed work.
Respondents' argument that the Court is not empowered to award back pay because the Civil Service Commission did not award back pay is without merit. Obviously, the issue of "back pay" as of April 16, 2008 could not have been raised before the Civil Service Commission when it rendered its determination on April 1, 2008; it fully expected petitioner to be restored to her position 15 days later, given the expectation that the NYPD would obey the CSC determination.
Because respondents did not restore petitioner to her former position in compliance with the Civil Service Commissions's determination, the Court grants the petition to restore petitioner to her position, nunc pro tunc, as of April 16, 2008, the date on which respondents should have restored petitioner to her position.
Civil Service Law § 77 provides that "any officer or employee who is removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter is restored to such position by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may be, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period."
Therefore, petitioner is entitled to back pay from April 16, 2008 until August 18, 2008. Petitioner is not entitled to back pay during the period of her suspension, which ran only from the date of her dismissal to the date of the Civil Service Commission's determination, i.e., April 1, 2008. There is no basis to deny petitioner back pay for the period between the date by which petitioner [*3]should have been restored to her position and the date on which she was belatedly restored.
Respondents' reliance on Lemoine v New York City Transit Authority (227 AD2d 403 [2d Dept 1996]) is misplaced. There, the petitioner challenged as excessive the Civil Service Commission's determination modifying the Transit Authority's penalty to a " lengthy suspension without pay' for the period covering the date of dismissal to 60 days after its decision." Lemoine, 227 AD2d at 403. Here, petitioner is not challenging the Civil Service Commission's determination. Rather, petitioner is seeking an order compelling respondent to comply with the Civil Service Commission's determination. It is undisputed that respondent did not comply with the Civil Service Commission's determination. Petitioner should have been restored to her position by April 16, 2008 instead of on August 18, 2008.
Petitioner's case is similar to Boyland v Town of Yorktown (179 AD2d 753 [2d Dept 1992]), cited by respondents. There, Supreme Court determined that the petitioner was wrongfully removed from his position effective February 29, 1986, and was restored to his position on June 24, 1989. The Appellate Division ruled that the Supreme Court erred in failing to award back pay for the period June 1, 1987 to June 24, 1989, and by failing to award interest on the back pay. Boyland, 179 AD2d at 754. The Appellate Division stated, "It is true that where the delay in proceeding is occasioned by the conduct of the accused, he will be denied the right to recover wages for the period involved" Ibid. However, the Appellate Division found nothing in the record to indicate that the petitioner was responsible for the delay in restoring him to his position.
Here, nothing in the record indicates that petitioner was responsible for the delay in restoring her to her position. Respondents stated that they were considering an appeal, but did not take an appeal. Respondents claim that it is NYPD policy to reinvestigate the criminal background of a former employee, and did not contact petitioner until July 23, 2008 to report to NYPD's Employee Management Division to commence the process of petitioner's reinstatement. Anderson Affirm. ¶¶ 7-8. Although NYPD's policy may be sound, the Civil Service Commission directed petitioner be restored within 15 days of its determination. Accordingly, NYPD should have completed its processing within the 15 day period, or respondents should have commenced an Article 78 petition and sought a stay of enforcement of the Civil Service Commission's determination. CPLR 7805.
Petitioner allegedly did not complete all of the necessary paperwork on the day that she reported to NYPD's Applicant Processing Division on August 1, 2008, which required her to return on August 5, 2008. However, respondents do not set forth whether the paperwork could have been completed in a single visit, or provide the circumstances surrounding petitioner's visit on August 1, 2008. Thus, there is no evidence in the record to conclude that the four day delay in processing was occasioned by petitioner.
Therefore, petitioner is entitled to back pay from April 16, 2008 until August 18, 2008, when she was actually restored to her position. Petitioner is also entitled to prejudgment interest on back pay. Boyland, 179 AD2d at 754. The Court chooses June 16, 2008, as an intermediate date for the calculation of interest. CPLR 5001 (b). Because the amount of back pay, less any unemployment compensation received, plus interest has not been calculated, the Court hereby refers the calculation of the total amount to be awarded to a Referee to hear and determine. The parties are encouraged to stipulate in lieu of a hearing.
As an aside, had petitioner been a police officer, she would not have been entitled to pay any
back pay, because unlike Civil Service Law § 77, "the operative statute [as to police
officers] [*4](Administrative Code § 14-123) makes no
provision therefor." Buric v Safir, 4
AD3d 160, 161 (1st Dept 2004).
CONCLUSION
Accordingly, it is hereby
ADJUDGED that the Article 78 petition is granted to the extent that at petitioner is restored to her position as a civilian Police Administrative Aide, nunc pro tunc as of April 16, 2008, and is entitled to back pay from respondent New York City Police Department from April 16, 2008, until August 18, 2008, less the amount of any unemployment insurance benefits petitioner may have received during such period, together with prejudgment interest at the statutory rate of 9% per annum from the date of June 16, 2008 until the date of this decision; and it is further
ORDERED that the issue of the total amount petitioner is entitled to recover from
respondent New York City Police Department is hereby referred to a Special Referee to hear and
determine.Dated: December 1, 2008
New York, New YorkENTER:
s/
J.S.C.
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