Matter of Purcell v City of New York

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Matter of Purcell v City of New York 2011 NY Slip Op 34278(U) October 7, 2011 Supreme Court, New York County Docket Number: 101401/11 Judge: Saliann Scarpulla Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPJIB:t\1,E COURT o~ THE STATE r OF NEW YORK COUNTY OF NEW Y<DRK: CIVIL TERM: PART 19 ____________________________ J ____________________________________){ I IN THE MATIER OF ~rHE APPLICATION OF THOMAS R. PURCELL Index No.: 101401/11 i Petitioner, Submission Date: 06/29/2011 • I - agamst-1 I THE CITY OF NEW YpRK, COMPTROLLER OF THE CITY OF NEW YORK, ETHEL J. GRIFFIN, INDIVIDUALLY, PUBLIC ADMINISTRATOR OF NEW YORK COUNTY, DECISION AND ORDER I Respondents ----------------------------1------------------------------------){ Petitioner, Prose: Thomas R. Purcell 263 W. 90th Street New York, NY l 0024 , For Respondent: Michael A. Cardozo, Corporation Counsel of the City of New York 100 Church Street New York, NY l 0007 I Papers considered in review ol this petition: Notice of Petition ................ l Verified Answer............... 2 Memorandum of Law in Support of Verified Answer ................. 3 Reply & Mem of Law1 . . . . . . . . . . . 4 I HON. SALIANN SC,ULLA, J.: In this Article 781proceeding, petitioner Thomas R. Purcell ("Purcell") challenges the November 1, 2010 lecision of respondents The City of New York, Comptroller of the City of New York, Ethe J. Griffin, Individually ("Griffin"), as the Public Administrator of New York County (c llectively "City respondents") denying Purcell's application for a lump sum payment for lleged unused annual and sick leave. Purcell alleges that he accrued this leave whil, serving as Deputy Public Administrator for the New York County Office of the Public Administrator. 1 h9J~CG~~W~[Q) OCT 1 2 2011 IAS MOTION SUPPORT OFFICE NYS SUPREME COURT-CIVIL [* 2] ,..--....." . Pmcell has workbd in the Purcell began serving j Offic~-~f the Public Administrator for thirty years. Deputy Public Administrator for the Office of the Public Administrator on August 4, 1980, and retired from this position on September 3, 2010, effective September 4, Jorn. Prior to his retirement, Purcell requested a calculation of his I annual leave and sick lekve. His September 3, 2010 pay statement showed that he had I credited 371 hours of an'.nual leave and 1690 hours of sick leave. I In a letter dated November 1, 2010, Griffin claimed that Purcell did not have any I i remaining sick or annual leave. Instead, Griffin claimed that the Public Administrator's I Office had overpaid Purben $5,549 .46. Griffin attributed the error "primarily" to the City I respondents' basing Purbell's start date as August 4, 1980 instead of August 8, 1980. I Other than this alleged four day error in start date, Griffin did not specify any other I miscalculations that res~lted in his overpayment. I Purcell now co~ences this Article 78 proceeding requesting that the Court annul I the Public Administrato,'s determination. Purcell alleges that his start date was August 4, 1980, not August 8, 1980. He also claims that the Public Administrator incorrectly I I charged ten days againstlhis accrued annual leave between 1980 and 1985, incorrectly calculated the excess ,ual leave credits he received between August 1985 and August 1994, and unfairly recalrlated his excess annual leave to sick leave. He maintains that he is entitled to a lump s r payment under either the Pay Plan for Management Employees' Personnel Order 88/5 or the Career and Salary Plan's Leave Regulations. In their verified aaswer, the City respondents concede that Purcell's start date was August 4, 1980, but argul that any alleged miscalculations are inconsequential because 2 [* 3] ~ I · - the Persollllel Order 8815 does not apply to Deputy Public Administrators. They also maintain that the Career and Salary Plan does not apply to Deputy Public Administrators, I and, in any event, the Career and Salary Plan does not provide for managerial lump sum I . payments. Finally, the City respondents maintain that the Court must dismiss the petition against Ethel Griffin, I,dividually, because a petitioner in an Article 78 proceeding may not recover damages against an officer acting in her individual capacity. ! Discussion I I Judicial review df an administrative determination pursuant to CPLR Article 78 is . I 1 limited to a review of tle reqord before the agency and the question of whether its determination was arbit ary or capricious and has a rational basis in the record. See I CPLR §7803(3); Gilma~ v. NY. State Div. ofHous. & Community Renewal, 99 N.Y.2d i 144 (2002); Nestor v. N~w York State Div. ofHous. & Community Renewal, 257 A.D.2d I I 395 (1st Dep't 1999). kI action is arbitrary and capricious, or an abuse of discretion, i when the action is taken 'without sound basis in reason and without regard to the facts."' I Matter ofRohan v. New York City Housing Authority, 2009 NY Slip Op 30177U, at *6-*7 I (Sup. Ct. N.Y. Co. Jan. 23, 2009) (quoting Matter ofPell v. Board ofEducation, 23 N.Y. 2d 222,231 ( 1974)). Gelerally, "[j]udicial review of an administrative determinatio~ is limited to the grounds jvoked by the agency and a reviewing court which finds those grounds insufficient or iLproper may not sustain the determination by substituting what it deems to be a more appjopriate or proper basis." Parkmed Associates v. New York State Tax Com., 60 N.Y.2d 935, 936 (1983). 3 [* 4] f' .. H~re, the City r,spondents provide a different basis than the Public Administrator did in denying Purcell the lump sum payment. They state that Purcell's position is simply I not entitled to a lump sbm payment on retirement. However, because the Public I I Administrator's initial determination did not cite this basis for denying Purcell his I I retirement payment, it i~ beyond the scope of this court's review. See Parkmed I Associates, 60 N.Y.2d at 936. I The only justifi~tion the Public Administrator gave in denying Purcell the payment was that Purccoill did not have any remaining annual leave days. However, the Public Administrator based that determination on a start date which the City respondents I I now concede was inco1·ect. The Public Administrator did not set forth any other reason I for denying Purcell paryient for more than 2,000 hours ofleave he accrued over thirty years of service. i Because the sole rationale the Public Administrator expressed for its decision to deny Purcell his retirement payment was based on an admittedly erroneous calculation, . and it failed to give any lother explanation for its findings, its decision was arbitrary and capricious. See Matter bfHome Depot, U.S.A. v. Town Board ofthe Town ofHempstead, I i I . . . 63 A.D.3d 938, 939 (2dlep't 2009) (Town Board's decision was arbitrary and capricious where it "offered no findings to support" its conclusion). The City respondjrts also argue that the court should dismiss the claim against Ethel Griffin, individuall because Purcell may not recover against Griffin in her individual capacity. Thorgh petitioners in Article 78 proceedings may not bring claims against officers in their i dividual capacity, See 14 Weinstein, Korn & Miller, NY Civ 4 [* 5] --· .. _ Prac P 7806.01, courts s,hould not dismiss solely for improper form. See Phalen v. I Theatrical Protective Uton etc., 22 N.Y.2d 34, 4 (1968). Form issues aside, however, Purcell does not allege any legal basis for relief from which he may recover aiainst Griffin individually. He alleges no personal wrongdoing by I Griffin outside of action~ she took in her official capacity. "[W]hen official action I . I involves the exercise of 'discretion, the officer is not liable for the injurious consequences I of that action even ifreshlting from negligence or malice.;, Tango v. Tulevich, 61 N.Y.2d 34, 40 (1983). Even whLe the accusation involves a municipal officer's actions that I involve no discretion but are purely ministerial, these actions "may support liability only where a special duty is ftund." McLean v. City o/New York,12 N.Y.3d 194, 202 (2009). Because Purcell does not claim any special relationship between Griffin and Purcell, he i has failed to allege a leg~l basis for holding Griffith individually liable. I In accordance wit~ the foregoing, it is hereby ORDERED and ~JUDGED that the·petition of Thomas R. Purcell to vacate the I decision of respondent Phblic Administrator of New York County on November I, 2010, I is granted to the extent tiiat the matter is remanded to the Office of the Public . · · .· · · .c. • · Adm imstrator to issue a I · d determmatlon base d upon correct m1ormatlon and, m th e ·ev1se event payment is again d nied, a detailed and supportable explanation for the denial; and it is further 5 [* 6] i · OKDERED and ADJUDGED that the petition against Ethel Griffin, Individually, is denied and the proceeding insofar as asserted against her is dismissed; and it is further ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This constitutes the decision, order and judgment of the Court. Dated: New York, New York October 7:. 2011 ENTER: lf ILE D DEC 14 2011 QoUNTV CLERl<!S OFFICE ~- N~W YORK . _ _....J 6

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