Matter of Fagan v Ward

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Matter of Fagan v Ward 2011 NY Slip Op 33434(U) December 21, 2011 Sup Ct, NY County Docket Number: 106866/11 Judge: Cynthia S. Kern 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. SCANNED ON I212712011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY d.J. 4.a. Justice I INDEX NO. MOTION DATE MOTION SECl. N O . were read on this motion tolfor The following 'papers, numbered 1 to PAPERS NUMBERED Notice of Motion/ Order t o Show Cause Answering Affidavits - - Affidavits - Exhibits Exhibits ... ,.. - - Replying Affidavits Yes Cross-Motion: n No Upon the foregoing papers, It is ordered that this motion UNFILED JUDGMENT This . judgment has not been entered bv the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B). Check one: $ J . S . C. FINAL DISPOSITION Check if appropriate: CYNTHIA S.KERN U NON-FINAL DI$LDSITION 7' NOT POST DO c SUBMIT ORDER/JUDG. ] LJ REFERENCE 0 SETTLE ORDER /JUDG. [* 2] Petitioncr, Index No. 1O6866/11 For a Judgment I'ursuaiit to Article 78 of'the Civil Practice Laws and Rulcs, RON. CYNTHIA WRN, J.S.C. Recitation, as required by CPJLK 22 19(a), of the papers considered in the review of this motiori for : . I - "- Papcrs Notice of Molion arid Affidavits Annexed.................................... Answcring Aft'idavits and Cross Motion ...................................... Rep1y i ng A fi-id avi Is...................................................................... Exhibits ...................................................................................... Numbered 1 2 3 4 Petitioner brings this petition seeking a cleclaratioln that tlic detcrniination nf respondent Christophcr 0. Ward in his capacity as Executive Director of the Port Authority of New York and New Jersey ("Ward") to tennillate his retiree heal111 I I I S U ~ ~ I ~ bcncfits was a violation of CC law, was arbitrary and capricious and an abuse of discretion, as well as a n excessive penalty and a denial oL a property right without duc process. He also seeks lo compel reinslaternent of said health benefits. Respondent submits that the petition should be denied on the ground that he acted properly ~iiid a way that was not arbitrary or capricious or an abuse of discretion. in The relevanl Facts are as follows. Petitioner. Fagm was employed as a SblTAccounlant a 1 [* 3] the Port Authority of New York wid New Jcrsey ( Port Authority ) for over 10 years. He had acquired approximately 34 years of credited retirement service credit with Ncw York State because he had been cniploycd by the State in other capacities beginning in or about March 1974. In 2003, petitioner s co-workcrs complaiiicd that they had obscrvcd scxually explicit material displayed on his computer. I-lis supervisors niet with him at least oiice in 2003 arid inlormed him that his conduct would not bc tolerated. I le was told again in 2007 that certain websites should bc avoided complekly while he was at work. On March 4, 20 10, an anonyiiious cal Icd contactcd the Port Autliority Office of the Inspcctor General ( OIG ) and cornplained that pctitioncl- was viewing pornographic inaterial on his computer in his open workspace. The OIG began an investigation. On March 4, 2010, June 14, 2010 and October 14, 2010, dctcctivcs from the OIG hensically iinaged the hard drive of petitioner s office coniputcr and discovered over 1,300 sexually explicit photographs. I hey also discovered that pctitioncr added additional photographs between each imaging. Thcy rcported their findings to petitioner s supervisors. Based on this, pctitioner s department dircctor, h e Marie Mulligan, decided to involuntarily remove pelitioner from employment. She sent a memorandum to Ward recommending and rcquesting that petitioner bc terminated and that he be suspcndcd witliout pay pending the completion of dismissal proceedings. Ward approved the recoinmendation On October 14, 20 I 0, petitioner was notified both verbally and in writing that he was suspended imnediatcly, pending the coiiclusion of liis removal proceeding. The next day, petitioner applied for retirement. Normally, the Ncw Y ork Statc rctir-cmcnt plan requires 30 days noticc before a retirement application is efl ectivc. I-Iowcvcr, at the time petitioncr applicd for retircincnt, a statcwide retirement incentive program was in place with a shorter notice pcriod. Although petitioner was told that he could not participate in the incenlive 2 [* 4] program because of his suspeiisjon and pcnding termination, his application was crroneously processed as part of the incentive program. He was notilied that liis retirement was effective as of October 29, 20 10. On November 3, 20 1.0, Mulligan sent Ward a second rnenioraiidum reconinicnding petitioner s tcrminatioii. Ward approved this mcmorandum as wcll. A copy d this ineinorandum was sent to petitioner, under cover of a letter dated Novcmbcr 4,20 10. That lettcr also advised petitioncr 1ic was entitlcd to request an appcarance b e h e ;L departniciit director, which lie did. That appearance look place on Jaiiuary 18, 201 I, beibre Lillian Valeriti, the Director of Procurement. Afterwards, Valenti sent a mcmorandum to Ward in which she concuired with the dccision to teriiiinate petitioner. Ward approved thc dccision on March 21, 201 1 and petitioner was notified o l the decision by letter datcd March 23,201 1. The lettcr staled that his termination was effectivc October 14, 20 10, the date of his suspension. Petitioner then stopped rcceiving Port Authority issucd rctircc health benefits. Petitioner now brings this action seeking to have those health benefits reinstated. J k argues that because he retired before he was tcrininated, his hcalth belidits caniiot be take away horn him. The instant pctition is disrnisscd because petitioticr cannot make an end-run around tlic discipliiiary and termination proceeding that had been initiated against him by reliring bcforc the process was coinplctcd. In ~ + lood v Monahan, the court hcld that a police officer s right to automatic retirement ... docs not give [liim] immunity from a depai-linental disciplinary proceeding which was commenced while he was [employed] and which was pending when lic retired. 201 Misc. 560, 561 (Sup. Ct. Spccial Term, 1951). As the First Deparlment said, sunimarizing this line ofcases, J he clear rulc of these authorities is that an eiiiploycc may not forestall the consequences o l an adverse determination in properly coinmenced procecdiiigs by [* 5] retiring during their pendency. Horges 1 McChire, 107 A.D.2d 492, 497-98 (1 I Dept 198s) (citing Flood, 201 Misc. 560; Muttor qfBrooklyn Audilil Co v Lkpl. of Tuxation, 275 Mullcr ofRuker 1) NY 234; Kennedy, 6 Misc.2d 589); hiit see Pierne v Valentine, 291 N.Y. 333 (1 943). Although these cases were all governed by thc Civil Service Law, it is clear to this court that the same principle should bc applied to the case bel ore us. Petitioner argucs that thc cases cited above do not apply as tlicy involved plaintiffs seeking back pay. But the principle establislicd by the cases is that an employee may not avoid a disciplinary proceeding - and the consequences of that proceeding - by retiring whilc that procccding is pcnding. See Borgtls, 107 A.D.2d at 497-98. Thcrcforc, if the consequences o l a disciplinary hearing include losing the right to medical benefits, an employcc caiiiiot retain those beneiils by retiring after the djscjplinary procecding has been commenced. Moreover, petitioner s contention that he rctired befbre the formal disciplinary procccding had begun is without basis. By memorandum datcd Octobcr 14, 2010, petilioner was iiifornicd that [c]ffcctive imniediatcly he was suspendcd without pay, pending the coiiclusion of a removal proceeding. Petitioncr was not only notificd of a disciplinary proceeding, but he was suspcndcd witliout pay during its pcndency. Moreover, he was infornicd orally of the reasons for the suspension and the memorandum states that the suspension and removal procccdiiig arose from the issues discussed ... today. Pctitioncl- also statcs that Port Authority policy does not permit suspensions without pay for iiiore tlian 2 weeks without lhe approval ofthe Executivc Director. However, the Executivc Director had approvcd a suspcnsion without pay until the renioval procecdiiig was concludcd. This approval was not limited to two weeks. In addition, even if the Exccutivc Dircctor had f ailed to approve a suspension without pay for inorc tlian two wccks, sucli approval was not 4 [* 6] necessary as, at the time, pelitioncr was officially retircd, albeit erroneously. hi addition, petitioncr s loss ofhis health benefits is riot a penalty that is shocking to ilie conscicncc. Pctitioner s reliance on Matter ~f McUougall Scopltu, 76 A.D.;d 338, is v niisplaccd. In that instance, the petitioncr was teniiiiiated aftcr a single positive drug test aftclyears of. employment without disciplinary problcins. ihe court h u n d that termiiiatiiig pctitioner, and tlic concomitant loss of pension bcneiits, was a penalty shocking to the conscience. l hc iiistaiit casc is distinguishable. Petitioner corninitled the sanic typc of disciplinary infi-action repeatedly, even after bcitig spoken to about it. Moreover, petitioner will continue to receive his pension. His loss of health benefits, whilc a serious penalty, is not shocking to the conscience. Moreover, petitioncr s termination itself was not arbitrary and capricious givcn pctitioner s repeated infractions and that pctitioner was properly notified 01- the peiidiiig termjnation. Finally, pctitioiicr did iiot have a propcrty interest in retiree health benefits aiid therefore could not have been deprived of them improperly. Respondent submits the alfidavit of Mary Lee Hannell, director 0 1 Huinan Resources at the Port Authority. Slic states that Terminated employees are not eligible for Port Authority issued health bcncfits. I hcrcfore, Mr. Fagan is not eligible lo receive Port Autliority issired health bcncfits. Accordingly, the petilion in its entirety is dismissed. l hisconstitutes the decision, judgnent and order of the court. 141B . )

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