Matter of Roth v New York State Dept. of Corr.and Community Supervision

[*1] Matter of Roth v New York State Dept. of Corr.and Community Supervision 2018 NY Slip Op 52000(U) Decided on December 21, 2018 Supreme Court, Albany County Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2018
Supreme Court, Albany County

In the Matter of the Application of Michael Roth III, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York State Department of Corrections and Community Supervision, Respondent.



3610-18



Erin N. Parker, Esq.

Thomas D. Latin, Esq.

Lippes Mathias Wexler Friedman LLP

Attorneys for Petitioner

54 State Street, Suite 1001

Albany, New York 12207

Barbara D. Underwood, Attorney General of the State of New York

Lynn Knapp Blake, Esq., Assistant Attorney General

Attorney for Respondent

The Capitol

Albany, New York 12224
James H. Ferreira, J.

In this CPLR article 78 proceeding, petitioner challenges his termination from his employment as a Correction Officer (hereinafter CO) with respondent New York State [*2]Department of Corrections and Community Supervision (hereinafter DOCCS).

FACTS

Petitioner began working as a CO in March 2012. On March 20, 2017, petitioner was injured in the performance of his duties at Clinton Correctional Facility. Specifically, petitioner was injured while he was attempting to restrain an inmate who had assaulted another CO. An employee accident/injury report, dated March 20, 2017, was generated; petitioner's statement on the form was as follows: "Officer Martin went into inmate bathroom to tell inmate Truluck to put out cigarette when inmate attacked him" (Petition, Exhibit B). The report indicated that petitioner had left shoulder pain, left knee pain, and abrasions on his left elbow and on the back of his right arm. The report did not contain any details as to how petitioner was injured. At some point, petitioner submitted an amendment to the report which stated: "I Officer Michael Roth respon[d]ed to assist Officer Martin and a [Use of Force] ensued. Using body holds to restrain the inmate we went to the ground. I landed on my left shoulder and inmate landed on my side & knee" (Petition, Exhibit C).[FN1]

Petitioner also filled out a Use of Force Staff Memorandum, dated March 20, 2017. He describes the use of force as follows:

"I CO Roth responded to the aid of Officer L Martin in the inmate bathroom. I grabbed inmate Truluck from behind with a bear hug type hold around the waist forcing Truluck to the ground. I then got on top of Truluck who[se] hands were under his body. After struggling with Truluck I was able to gain control of Truluck's left arm with both my hands pulling it out from under him and forced his arm to his back where responding staff was able to apply mechanical restraints to the wrist of inmate Truluck. At this time all force was ended. Responding staff helped Truluck to his feet and took control of him" (Answer, Exhibit A, at 009).

Petitioner further states that, after the use of force, he was taken to the hospital "to treat injuries sustained during use of force" (id.).

On or about April 14, 2017, an unusual incident report was generated with respect to the March 20, 2017 incident. In relevant part, the report describes the incident as follows:

"Officer M. Roth, who was on 40-1 Building, observed inmate Truluck . . . charge toward Officer Martin striking Officer Martin. Officer Roth pulled his pin on his radio activating a red dot and responded to the incident. Officer Martin then drew his state issued baton No.946 striking inmate Truluck several times. With baton slipping from hand, Officer Martin then used closed fist strikes to ward off attack. Officer Roth entered bathroom, using body holds took inmate Truluck to the floor. Inmate Truluck continued to struggle. Officer G. Brassard, who also responded to the red dot, entered the bathroom area where he observed the altercation. . . . Inmate Truluck continued to struggle with all three officers refusing all orders to place his hands behind his back. . . . Officer Signor using OC pepper spray . . . administered two applications . . . to the head and face of inmate Truluck. At this time Officer Brassard and Officer Roth were able to gain control of inmate[']s arms where mechanical wrist restraints were applied. Inmate Truluck then [*3]became compliant" (Verified Petition, Exhibit D).

The report states that petitioner was treated for a possible left knee and left shoulder sprain. The report also lists the various employees who were involved in the incident; with respect to petitioner, the report states that petitioner suffered a moderate injury with respect to an assault on staff (see Verified Petition, Exhibit D, at 5).[FN2]

Petitioner was unable to return to work as a result of his injuries. He filed a workers' compensation claim, which was accepted, and took a leave of absence. By letter dated February 8, 2018, DOCCS' Director of Personnel informed petitioner that, pursuant to Civil Service Law § 71 and Rule 5.9 of the Rules for the Classified Service (see 4 NYCRR 5.9), his workers' compensation leave would end and his employment would terminate effective March 21, 2018 because his absence would have exceeded one cumulative year. By letter dated March 12, 2018, petitioner objected to the Director's determination, arguing that he was injured as a result of an assault and therefore was entitled to a two-year leave of absence pursuant to Civil Service Law § 71. In his letter, he provided a description of the incident, specifically stating that he put the inmate into a bear hug type hold and "[a]fter grabbing onto the inmate he continued to fight with me, landing several elbow shots to my upper body and kicking at me hitting my legs trying to break free. While he was kicking my legs I lost my balance and fell to the ground landing on my left shoulder. While still holding onto the inmate, he landed on my left knee driving it into the floor of the inmate bathroom. There, I wrestled with the inmate who continued to elbow me and was digging at my hands to try to loosen my grip on him" (Answer, Exhibit A, at 003). He further states that he was in pain at the time he completed his accident report and did not think to add details as to how his injuries occurred. Petitioner also advised that Officer Martin was willing to be a witness to these events and answer any questions.

By letter dated March 23, 2018, the Director adhered to her prior determination. She found:

"The Department categorizes an 'assault' as an injury sustained during the course of one's employment that occurred as a result of an intentional physical act of violence directed towards an employee by an inmate or parolee. Based on the Employee Accident Report and amendment received at the time of your injury, your reported workers' compensation accident/injury does not fall within this category" (Verified Petition, Exhibit H).

The Director held petitioner's termination in abeyance for 30 days. Petitioner was terminated, effective April 21, 2018. He thereafter commenced this CPLR article 78 proceeding challenging the determination that he was not entitled to a two-year leave of absence. Petitioner seeks, among other things, annulment of the determination and reinstatement to his position as a CO. Respondent has filed an answer to the petition and petitioner has filed a reply.

ANALYSIS

Where, as here, a petitioner challenges an administrative determination made where a hearing is not required, judicial review is limited to the issues of whether the challenged determination is rationally based, and whether it was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991]; Matter of Bais Sarah Sch. for Girls v New York State Educ. Dept., 99 AD3d 1148, 1150 [3d Dept 2012], lv denied 20 NY3d 857 [2013]). "[A] court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion" (Matter of Arrocha v Board of Educ. of City of NY, 93 NY2d 361, 363-364 [1999] [internal citations and quotations omitted]; see Matter of Boatman v New York State Dept. of Educ., 72 AD3d 1467, 1468 [3d Dept 2010]).

Civil Service Law § 71 provides, in relevant part:

"Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the [workers'] compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. Notwithstanding the foregoing, where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position" [emphasis added].[FN3]

If an employee does not return to work prior to the expiration of the leave of absence, his or her employment is terminated as a matter of law (see 4 NYCRR 5.9[c]; Matter of Singleton v New York State Off. of Children & Family Servs., 161 AD3d 1357, 1359 [3d Dept 2018]).

In support of his petition, petitioner argues that there is no rational basis for respondent's determination that he was not assaulted. Petitioner argues that he was the victim of an assault under both the Penal Law and the civil law definitions of assault. He asserts that respondent's definition of assault is restrictive, has no apparent statutory basis, is inconsistent with the spirit and intention of Civil Service Law § 71 and should not be afforded deference; he argues that, even so, he was assaulted under respondent's definition of the term because the inmate struggled with petitioner and therefore carried out an intentional act of violence against him. Petitioner notes that respondent's own records — specifically the unusual incident report — characterize the [*4]incident as an assault on petitioner.

In opposition, respondent argues that its determination is supported by a rational basis because the records before DOCCS — specifically the accident report, the amendment to the accident report and the use of force memorandum, all of which were completed by petitioner — contain no claim by petitioner that he was assaulted. Respondent argues that its determination was rational based upon the information that was provided by petitioner at the time of the incident.[FN4]

Upon review, the Court finds that respondent's determination lacks a rational basis. Even under respondent's somewhat restrictive definition of "assault," the record demonstrates that petitioner's injuries "result[ed] from an assault sustained in the course of his or her employment" on March 20, 2017 (Civil Service Law § 71).[FN5] Here, the documents generated by DOCCS with respect to the incident — including the amended employee accident report, use of force memorandum and the unusual incident report — demonstrate unequivocally that petitioner was injured while he was engaged in a use of force against an inmate. It is clear from the documentation that the inmate struggled against petitioner's attempts to subdue him and did not stop struggling and become compliant even after the inmate and petitioner went to the floor and petitioner was injured. Indeed, the record reflects that the inmate did not become docile or compliant until pepper spray was used and officers, including petitioner, were able to apply mechanical wrist restraints (see Verified Petition, Exhibit D, at 2). In the Court's view, the inmate committed an "intentional physical act of violence directed towards" petitioner when he struggled against petitioner's bear-hug type hold and attempts to subdue or handcuff him (Verified Petition, Exhibit H). Moreover, petitioner stated in his amendment to the employee accident report that he was injured when he and the inmate "went to the ground" (Verified Petition, Exhibit C). Notwithstanding that the DOCCS records created contemporaneously with the incident are not clear as to specific mechanics of how petitioner was injured, it is nevertheless clear that petitioner's injuries resulted from the inmate's "intentional physical act of violence directed towards" petitioner (Verified Petition, Exhibit H). In other words, petitioner would not have been injured absent the uncontroverted physical struggle between the inmate and petitioner and the inmate's intentional physical acts of violence toward petitioner. In the Court's view, on this record, a finding that petitioner's injures did not result from an assault strains rationality.

The Court is also not persuaded by respondent's argument that its determination was rational because petitioner did not make a specific claim at the time of the incident that he was assaulted. It appears from the Director's determination that she focused on the statements made by petitioner in the accident report and amendment to the exclusion of other DOCCS records generated with respect to the incident which demonstrate that petitioner's injuries were the result of an assault by an inmate under respondent's definition of that term. Indeed, as petitioner points out, the unusual incident report characterizes petitioner's injuries as arising from an assault on staff. Respondent has failed to respond to petitioner's argument on this point and has offered no explanation for the notation in the unusual incident report. Under these circumstances, the Court finds that the Director's determination that petitioner was not entitled to at least a two-year leave of absence pursuant to Civil Service Law § 71 was arbitrary and capricious and an abuse of discretion.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition granted and respondent's determination that petitioner did not sustain an assault within the meaning of Civil Service Law § 71 and is not entitled to a two-year leave of absence is annulled, without costs; and it is further

ORDERED AND ADJUDGED that respondent shall restore petitioner to occupational leave for a period of at least a two years from March 20, 2017 pursuant to Civil Service Law § 71; and it is further

ORDERED AND ADJUDGED that petitioner shall be reinstated to his position as of April 21, 2018, together with all appropriate back pay and benefits.

The foregoing constitutes the judgment of the Court. The original judgment is being returned to counsel for petitioner. A copy of the judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this judgment, and delivery of a copy of the judgment, shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

SO ORDERED AND ADJUDGED

Dated: December 21, 2018

Albany, New York

Hon. James H. Ferreira

Acting Justice of the Supreme Court

Papers Considered:

1. Notice of Verified Petition, dated June 1, 2018;

2. Verified Petition, dated June 1, 2018, with attached exhibits;

3. Memorandum of Law in Support by Erin N. Parker, Esq., dated June 1, 2018, with attached exhibits;

4. Answer, dated August 24, 2018, with attached exhibit;

5. Memorandum of Law in Support by Lynn Knapp Blake, Esq., dated August 24, 2018, with attached appendix; and

6. Reply Memorandum of Law by Thomas D. Latin, Esq., dated August 28, 2018. Footnotes

Footnote 1:The amendment is undated; petitioner states in his petition that, approximately one week after the incident, he was told that he needed to submit an amendment and he thereafter did so.

Footnote 2:Respondent did not include the April 14, 2017 unusual incident report in the administrative record that it submitted with its answer, and it is not clear whether the Director considered the report in making her determination on March 23, 2018. However, respondent has not contested the authenticity of the report submitted by petitioner and has not argued that it should not be considered by the Court. Indeed, in its answer, respondent refers the Court to this document submitted by petitioner as the most accurate statement of its contents (see Answer ¶ 13). As such, the Court will consider the unusual incident report as a DOCCS record that was accessible to the Director at the time of her determination.

Footnote 3:The highlighted language was added to the statute by amendment in 2003 (see Civil Service Law § 71, as amended by L 2003, ch 577 § 1). The Court finds it instructive that the bill jacket accompanying this amendment indicates that the plain intent of the amendment was to increase the leave of absence for an employee injured from an assault "on the job" from one year to "at least two years leave of absence" (Senate Introducer's Mem in Support, Bill Jacket, L 2003, ch 577 at 4). In fact, a review of the legislative history suggests that an unduly restrictive interpretation of the term "assault" under this provision would be contrary to the legislative intent (see e.g. Mem of State Dept of Corr. Servs, Bill Jacket, L 2003, ch 577 at 11 [As "there is always the possibility of an employee being injured as a result of an assault . . . these employees and the families that depend on them should be given due consideration for their services where appropriate"]).

Footnote 4:Respondent notes that petitioner did not provide his written objection to the Director's initial determination within 5 days, as directed in her February 8, 2018 letter (see Petition, Exhibit E). However, the Director did not find that petitioner's objection was untimely in her March 23, 2018 determination and respondent does not now argue that the timeliness of petitioner's objection provides a basis for denial of the petition. As such, the Court does not find it necessary to address the issue.

Footnote 5:Given that the record supports a finding that petitioner's injuries resulted from an assault under respondent's own definition of assault, the Court finds it unnecessary to evaluate the legislature's intent as to the definition of "assault" as used in Civil Service Law § 71. The Court notes, however, that, as petitioner points out, DOCCS' Director of Personnel did not provide any basis — such as a regulation, statute or internal policy — for the definition of assault cited in her March 23, 2018 letter. The Court also notes that, in the single published case interpreting this provision of Civil Service Law § 71, the Court analyzed whether the alleged assaulter "had the requisite culpable mental state for a criminal assault. . . or a civil assault" (Matter of Walker v State Univ. of NY [Upstate Med. Univ.], 19 AD3d 1058, 1060 [4th Dept 2005], lv denied 5 NY3d 713 [2005]).