Matter of Kelly v Port Auth. of N.Y. & N.J.
Annotate this CaseDecided on July 6, 2015
Supreme Court, New York County
In the Matter of the Application of Anthony Kelly, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
The Port Authority of New York and New Jersey, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY POLICE DEPARTMENT, PATRICK J. FOYE, in his official capacity as Executive Director of THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, and MICHAEL A. FEDORKO, in his official capacity as Superintendent of THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY POLICE DEPARTMENT, Respondents.
100315/2015
Petitioner:
Joshpe Law Group, LLC
Edward Paltzik, Esq.
1040 Avenue of the Americas, Suite 1101
New York, NY 10018
(646)-820-6701
Respondents:
New York City Law Department
100 Church Street, Room 4-313
New York, NY 10007
(212) 356-1141
Alexander W. Hunter Jr., J.
The application by Anthony Kelly ("petitioner") for an order pursuant to C.P.L.R. Article 78: (1) annulling the determination by the respondents to terminate him from his position as a Probationary Police Officer ("PPO") with the Port Authority of New York and New Jersey Police Department ("PAPD"); (2) compelling the respondents to reinstate him to his former status as a PPO; and (3) awarding him back-pay with interest, is denied.
Petitioner became a member of the PAPD on August 22, 2014. On August 23, 2014, following the PAPD graduation ceremony, the petitioner and several dozen of his fellow class members celebrated at two locations in New Jersey. First, the graduates visited Zeppelin Hall Restaurant and Biergarden (the "Biergarden") for a graduation party, an event that is not [*2]sponsored by the PAPD but, nonetheless, has become customary over the years. That event was held from 7 p.m. to 10 p.m. and included a three hour open bar plus food. Later that evening, approximately 95 PPOs, including the petitioner along with 11 PAPD Academy staff members, went to another establishment known as the Texas Arizona Bar and Grill (the "Bar") located in Hoboken, NJ. It was at this location where several incidents of misconduct took place, including but not limited to: (1) the inappropriate touching of female bar patrons and staff by male PPOs; (2) inappropriate relationships between PAPD Academy staff and PPOs; (3) drunken and disorderly behavior resulting in the ejection of both PAPD Academy staff and PPOs; and (4) misconduct outside the Bar when two PPOs and their friends jumped PATH turnstiles. The incidents became highly publicized in news media outlets and as a result of these alleged incidents, the Public Integrity Unit ("PIU") of the Office of the Inspector General ("OIG") opened an investigation.
On October 20, 2014, Michael Nestor, Acting Inspector General issued a memorandum (the "Nestor Memo") to Joseph Dunn, Chief Security Officer of the PAPD, detailing the findings of the investigation which consisted of: (1) interviews with 95 PPOs who were present at the Bar on the night of the incidents; (2) interviews of 11 PAPD Academy staff members, and one member of the Absence Control Unit; (3) interviews with all Bar staff members who were present on the night of the incidents; (4) interviews of various PAPD officers who responded to the incidents; (5) review of all surveillance video from the Bar on the night of the incidents; (6) review of social media accounts obtained from a number of PPOs; and (7) interviews with members of the Hoboken Police Department. As it pertained to the petitioner, the results of the investigation revealed that the petitioner was insubordinate and failed to be truthful during the PIU investigation.
Based on the results of the investigation, the petitioner along with 8 other PPOs were terminated from their positions with the PAPD. Consequently, the petitioner now seeks to annul the decision by the respondent to terminate his position by arguing that the determination was arbitrary, capricious and an abuse of discretion. Respondents oppose the application in its entirety, arguing that the petitioner was terminated for misconduct, including insubordination in twice refusing to obey the direct order of a superior officer and for failing to be truthful and honest during an official investigation.
It is well settled that a court will not interfere with the determination of an administrative agency unless there was no rational basis for the decision or if the action was arbitrary and/or capricious. See Rosenkrantz v. McMickens, 131 AD2d 389 (1st Dept. 1987); Pell v. Board of Education, 34 NY2d 222, 231 (1974). In Pell, the Court of Appeals defined arbitrary and capricious as "action without sound basis in reason and generally taken without regard to the facts." Pell at 231. Where there is a rational basis to support the findings and conclusions of an [*3]administrative agency, a court may not substitute its judgment for that of the agency. Howard v. Wyman, 28 NY2d 434, 438 (1971) ("The judicial function is exhausted when there is found to be a rational basis for the conclusion approved by the administrative body.").
It is also well settled that "as a probationary employee, [the] petitioner could be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law." Taylor v. Port Auth. of State of NY and N.J., 228 AD2d 197, 197 (1st Dept. 1996). In the present proceeding, the petitioner contends that the respondents acted arbitrarily and capriciously in part since the investigation erroneously concluded that the petitioner was insubordinate because: (1) the surveillance footage reveals no misconduct on the part of the petitioner; (2) the interview of PAPD Sergeant Kevin Cottrell confirms that the petitioner was not engaged in misconduct; (3) Lieutenant Steven Adelhelm's affidavit grossly distorts the petitioner's interview and takes selected answers out of context in an effort to make him appear untruthful; and (4) the Nestor Memo contains inaccurate assertions about the petitioner.
Here, the court finds that the respondents' determination to terminate the petitioner from his position as a PPO of the PAPD was rationally based on the petitioner's actions on the night of the graduation party and his response during the PIU investigation. It is clear from the record that during his interview with PIU investigators, the petitioner admitted to twice disregarding direct orders to leave the premises. By refusing to leave the premises as requested, the petitioner was in direct violation of Port Authority Rule 10 (2), which provides that "a member must promptly obey all lawful and proper orders and instructions, written or otherwise, however transmitted or received." The Court of Appeals of New York in Swinton v. Safir, 93 NY2d 758, 763 (1999) provided that "a PPO, while in that status, may be dismissed for almost any reason, or for no reason at all." Thus, although not required, his admission alone provides a rational basis for his termination.
This court has considered the petitioner's remaining arguments and finds that they are without merit.
Accordingly, it is hereby
ADJUDGED that the application by the petitioner for an order pursuant to C.P.L.R. Article 78 annulling the determination by the respondents to terminate him from his position as a PPO with the PAPD and compelling the respondents to reinstate him to his former status with back-pay plus interest, is denied.
Dated: July 6, 2015
ENTER:
____________________________
J.S.C.
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