Opinion
INDEX NO. 101898/2019
08-21-2020
In the Matter of TERESA ARIAS, Petitioner, v. CITY OF NEW YORK, Respondent.
NYSCEF DOC. NO. 30 PRESENT: HON. JOHN J. KELLEY Justice MOTION DATE 07/21/2020 MOTION SEQ. NO. 001 DECISION , ORDER, and JUDGMENT The following papers, numbered 1 - 28, were read on this application to/for CPLR ART 78
| Notice/Petition-Amended Petition-Affidavits-Exhibits | No(s) 1-19 |
|---|---|
| Answering Affidavits - Exhibits | No(s) 20-27 |
| Replying | No(s) 28 |
In this CPLR article 78 proceeding, the petitioner seeks judicial review of a December 10, 2019 New York City Department of Environmental Protection (DEP) determination that she was not entitled to leave-time credits as a City employee in connection with the 17 years that she had been employed by the City University of New York (CUNY). She thus seeks to annul its determination to calculate her rate of leave-time accrual based on a "start date" of November 2, 2014, when she began her most recent stint as a City employee, rather than February 4, 1985, when she began her first stint as a CUNY employee. The petitioner also seeks relief in the nature of mandamus to compel the City to credit her for those 17 years and to restore her to the permanent title of Administrative Manager (N[on] M[anagerial]), the position at the New York City Department of Design and Construction (DDC) from which she was on leave at the time that the DEP rendered the challenged determination. The City answers the petition and files the administrative record. The petition is denied, and the proceeding is dismissed. The City is not obligated to credit the petitioner for the annual leave and sick leave that she had accrued in connection with her employment at CUNY, or to continue to credit her for such leave at the rate to which she would have been entitled were those 17 years included in the calculation of her City service time. Moreover, the petitioner's position as Administrative Manager (NM) already has been restored, rendering that claim academic.
On or about February 4, 1985, the petitioner commenced employment for CUNY as a College Office Assistant at Baruch College. On December 21, 1987, the petitioner left her employment at CUNY, and commenced employment as a provisional Office Associate at the New York City Department of Law (DOL). On December 3, 1988, the petitioner resigned from the DOL. From December 5, 1988 to February 28, 1999, the petitioner was employed by the New York City Department of Housing Preservation and Development (HPD), first as a provisional Principal Administrative Associate, then as provisional Technical Support Aide as of February 1, 1993, a provisional Clerical Associate as of April 14, 1996, and a Clerical Associate as of September 15, 1997. After the petitioner's resignation from HPD on February 28, 1999, she was apparently not employed by any public employer until November 1, 1999, when she returned to CUNY, where she worked until November 2, 2014, a period of 15 years.
On November 2, 2014, the petitioner returned to City employment in a permanent position as a Principal Administrative Associate at the New York City Department of Homeless Services (DHS). At that time, for the purposes of calculating the amount of annual leave time to which the petitioner was entitled, and the rate at which she would be credited going forward, the DHS deemed the petitioner's City employment "start date" to be February 4, 1985, when she began her first stint as a CUNY employee. On May 4, 2015, the petitioner transferred to the DDC, retaining her title as Principal Administrative Associate. On November 21, 2016, the petitioner was promoted within the DDC to a non-managerial position that was nonetheless designated as Administrative Manager (NM). The DDC, as had the DHS, deemed her City employment "start date" to be February 4, 1985.
In November 2018, the petitioner took an approved leave of absence from her position at the DDC, and was assigned to the "Build-It-Back" program in the Mayor's Office of Housing Recovery Operations (HRO). The petitioner did not return to DDC. Rather, on November 25, 2018, after the petitioner left HRO, she was appointed as a Community Coordinator at the DEP, a non-competitive title. The DEP, at first, deemed her City employment "start date" to be February 4, 1985, as had the DHS and the DDC.
In or around late September or early October 2019, the petitioner's name was circulated on a list of individuals who were deemed to be entitled to Recurring Increment Payments (RIPS). The DEP's Records Management Team consequently reviewed the petitioner's "PRISE" History Roster Summary, a document generated by the New York City Department of Citywide Administrative Services (DCAS). This document, in the form of a printout of computer data, sets forth the dates that an employee worked for the City of New York in any particular job title, the date of each change in job and payroll status, a code that indicates the City agency for which the employee worked during each relevant interval, a code referable to the title of the employee's position during each interval, and the gross salary earned by the employee during each interval. Upon its review of this printout, the DEP discovered that the petitioner had worked for numerous City agencies from December 21, 1987 through March 12, 1999, and again from November 2, 2014 through late 2019, when the printout was generated. It further concluded that, between 1999 and 2014, there had been a gap of 15 years in the petitioner's creditable service as a City employee, during which time the petitioner had been employed by CUNY. In addition, it found that, when the petitioner was hired by the DHS on November 2, 2014, that agency incorrectly credited the petitioner, for leave-accrual purposes, with her two stints as a CUNY employee, and that the DDC continued the erroneous characterization.
In or about October 2019, the DEP informed the petitioner that, as a consequence of its discovery, her City employment "start date" would be revised to reflect that, for the purposes of calculating the annual leave and sick leave to which she was entitled, her City employment began on November 2, 2014 rather than February 4, 1985. The DEP further informed the petitioner that her leave credits going forward would be recalculated at the rate applicable to employees with 5 years of continuous City employment service, rather than 34 years of continuous service. Between October 2019 and November 2019, the petitioner sent several emails to DEP management, explaining that the City and DHS had assured her that her service as a CUNY employee would be accounted for in calculating her rate of annual leave and sick leave accrual, and that she relied on those representations when she accepted the City's offer to work at the DHS in 2014.
During October 2019, the petitioner also requested that the DEP restore her to the position of Administrative Manager (NM), the position that she held at the DDC.
On November 19, 2019, the petitioner's attorney made a formal request to the DEP to restore her City employment start date to February 4, 1985 for the purposes of calculating her annual leave and sick leave accrual rate, and return her to the position of Administrative Manager (NM). By letter dated December 10, 2019, the DEP's Deputy Commissioner, Bureau of Organizational Development & Human Resources, determined that
"DEP stands by its decision to amend [the petitioner's] City Start Date to reflect her return to City service after a fifteen year break-in-service to work at the City University of New York ('CUNY'). Please be advised that before we explained this decision to [the petitioner], we consulted DCAS generally about how service with CUNY should be treated for both civil service and leave accrual purposes. They advised us that CUNY service counts for neither purpose.
"After our discussion with [the petitioner], during which she presented her belief that CUNY service should count for the above stated purposed, we returned to DCAS with the specifics of [her] case. After reviewing the specifics as they relate to [the petitioner], DCAS re-iterated [sic] its earlier position by explaining that CUNY is an entity separate and apart from the City of New York and that DCAS provides no oversight with respect to CUNY's administration of its own civil service system, and, therefore, that a 15-year break in City service to work at
CUNY required a new City Start Date upon her return. A new City Start Date, of course, triggers a new leave accrual rate."With respect to the petitioner's request to restore her permanent title of Administrative Manager (NM), the position from which she was then on leave, the Deputy Commissioner determined that
"the action restoring the title was effectuated by the NYC Department of Design and Construction ('DDC'), the agency which continues to 'hold that line.' Consequently, the best assurance that this action has been effectuated would come from DDC. However, our review of personnel records to which we have access indicates that [the petitioner's] permanent line has, indeed, been restored."This CPLR article 78 proceeding ensued.
In the first instance, the petitioner does not allege, and the administrative record does not reflect, that the DEP retracted or rescinded leave credits that she had already accrued at the higher rate initially approved by the DHS, and carried forward by the DDC and the DEP. Hence, as it concerns leave-accrual rates, this dispute only involves the calculation of the petitioner's leave from November 2019 forward.
Where, as here, an administrative determination is made, and there is no statutory requirement of a trial-type hearing, that determination must be confirmed unless it is arbitrary and capricious, affected by an error of law, or made in violation of lawful procedure (see CPLR 7803[3]; Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523 [2018]; Matter of McClave v Port Auth. of N.Y. & N.J., 134 AD3d 435, 435 [1st Dept 2015]). Inasmuch as the petitioner does not allege that the City committed any procedural violations, the court must thus consider only whether the challenged determination was arbitrary and capricious or affected by an error of law.
A determination is arbitrary and capricious where it is not rationally based, or has no support in the record (see Matter of Gorelik v New York City Dept. of Bldgs., 128 AD3d 624 [1st Dept 2015]), i.e., it "is without basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). A determination is also arbitrary and capricious where the decision-making agency failed to consider all of the factors it is required by statute to consider and weigh (see Matter of Kaufman v Incorporated Vil. of Kings Point, 52 AD3d 604 [2d Dept 2008]; Matter of Pantelidis v New York City Bd. of Standards & Appeals, 43 AD3d 314, 314 [1st Dept 2007]; Matter of Fusco v Russell, 283 AD2d 936, 936 [4th Dept 2001]).
An administrative determination is affected by an error of law where the agency incorrectly interprets or improperly applies a statute, regulation, or rule (see generally Matter of CVS Discount Liquor v New York State Liq. Auth., 207 AD2d 891, 892 [2d Dept 1994]). "While agency interpretations of their own regulations are generally afforded considerable deference, courts must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case" (Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 654-655 [2013] [citations and internal quotation marks omitted]; see Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359 [1999]; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]). "While as a general rule courts will not defer to administrative agencies in matters of pure statutory interpretation, deference is appropriate where the question is one of specific application of a broad statutory term" (Matter of O'Brien v Spitzer, 7 NY3d 239, 242 [2006] [citations and internal quotation marks omitted]; see Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]; Matter of American Tel. & Tel. Co. v State Tax Comm., 61 NY2d 393, 400 [1984]).
The primary issue raised by this proceeding is whether the City must credit the petitioner for accrued annual leave and sick leave for the almost 17 years that she had been employed by CUNY. The petitioner only would be entitled to such credits if her employment by CUNY is deemed also to be employment by the City, or if CUNY and the City entered into an agreement or memorandum of understanding (MOU) that annual and sick leave credits accrued by an employee while working for either of those entities were transferable to and recognized by the other. A review of applicable law and the administrative record reflects that, since July 1, 1979, CUNY employees have not been employees of the City, and CUNY and the City never entered into an agreement or MOU covering this subject matter.
An employee's length of City service determines his or her rate of accrual of leave balances. Specifically, the rate of accrual increases as the employee's length of service increases. The length of service also is considered in connection with seniority for layoff purposes, and may affect the level of recurring benefits under a collective bargaining agreement, such as the RIPS that the petitioner received (see Civil Service Law § 80). As set forth in Rule 2.1(c) and Interpretation E of the City's Leave Regulations for Employees Who Are Under the Career and Salary Plan, dated May 1980, and revised January 1985 (hereinafter the Leave Regulations), and Article IX § 24, Article XVII §§ 2-3 of the still-applicable 1995-2001 Citywide Agreement, dated May 19, 2000, the length of service in City employment is measured by "continuous service." Thus, if there is a break in an employee's City service, prior service with the City is not considered when determining length of service for the purpose of calculating the leave accrual rate. Hence, where an employee resigns one position with the City that was covered by the Leave Regulations, and takes another position with the City also covered by the Leave Regulations, the employee does not lose any leave rights or balances, regardless of whether the new position carries the same or a different title, or is in the same or a different agency. Conversely, if the employee resigns a position with the City that was covered by the Leave Regulations, but takes a position with a public employer other than the City, or a City position not covered by the Leave Regulations, the employee may indeed lose leave rights, including any favorable rates of leave accrual that were in effect as the time of resignation; the employee also cannot carry over leave balances in the event that he or she returns to City service in the future.
Education Law § 6203, effective July 1, 1979 (L 1979, ch 305, § 1), provides that
"The separate and distinct body corporate designated as the board of higher education in the city of New York shall be continued and shall hereinafter be known as the city university of New York. The city university shall have the powers and privileges of colleges and shall be subject to the visitation of the regents of the university of the state of New York. The city university shall have the care, custody, control, and management of the lands, grounds, buildings, facilities and equipment used for the purposes of the educational units of the city university and it shall have the power to protect, preserve and improve the same. Each existing unit of the city university shall be given an appropriate and distinctive designation."L 1979, ch 305, also created a 17-member CUNY board of trustees, comprising 10 gubernatorial appointees, 5 mayoral appointees, 1 student, and 1 non-voting faculty member, all subject to confirmation by the State Senate. The law directs the Governor to appoint the chair and vice chair of the board. Crucially, the law defines CUNY as a separate municipal employer for the purposes of the Civil Service Law, and an independent public employer for purposes of collective bargaining, with the consultation and assistance of the State of Office of Employee Relations. The law also divides responsibility for capital expenditures and operating expenditures between the State and the City, with the State assuming far more of those obligations than it had prior to 1979. In supporting the bill that was ultimately enacted as L 1979, ch 305, the State Education Department explained that, under the terms of the bill,
"[t]he City University, (CUNY) The State University (SUNY) and independent colleges and universities would collectively comprise [sic] the entity known as The University of the State of New York. All three institutions would continue to be independent with respect to their operations, but subject to the power of visitation and overall authority of the Board of Regents of the University of the State of New York"(Memo of Robert D. Stone, State Education Dept, to Counsel to the Governor, June 28, 1979, Bill Jacket, L. 1979, ch 305, p 16; see Moore v Board of Regents, 44 NY2d 593 [1978]). Thus, "[a]s a 'separate and distinct body corporate' (Education Law § 6203), CUNY is not formally part of the State or the City" (Matter of Apollon v Giuliani, 246 AD2d 130, 134-135 [1st Dept 1998]; see Benjamin v City of New York, 2015 NY Slip Op 50951[U]; 48 Misc 3d 128[A] [App Term 1st Dept, Jun. 25, 2015]; Perry v City of New York, 126 AD2d 714 [2d Dept 1987]; Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc 2d 492, 496 [Ct Claims 1991]). In light of this status, the Deputy Commissioner of the DCAS explained in a 1997 letter to CUNY that, as of July 1, 1979, "employees in the classified service of The City University of New York have not been employees of an agency of the City of New York but have been employees of a separate civil service jurisdiction, the City University of New York."
Hence, the DEP's conclusion that the petitioner was not a City employee who was covered by the Leave Regulations during the times that she was employed by CUNY from 1985 to 1987 and 1999 to 2014 was legally correct and not arbitrary and capricious.
Nonetheless, if the petitioner could show that CUNY and the City had an agreement or MOU permitting the City to recognize her accrued CUNY leave credits, she might be entitled thereto. For example, the State has promulgated regulations recognizing a State employee's right to the transfer of leave credits accrued in the course of other public employment where the prior public employer entered into a reciprocal agreement or MOU with the State for recognition of such leave credits (see 4 NYCRR 24.1 [applicable to employees of State executive agencies; 22 NYCRR 24.12 [applicable to nonjudicial employees of the State Unified Court System]). The administrative record reflects that, at the time that the petitioner re-entered City service in 2014, and at all times thereafter, CUNY and the City had not entered into such a reciprocal agreement or MOU. Hence, the DEP rationally concluded that there was no basis for crediting the petitioner with her 17 years of service as a CUNY employee in connection with her City-service leave benefits, or the rate of accrual of those benefits (cf. Matter of Kaslow v City of New York, 23 NY3d 78 [2014] [inasmuch as a City correction officer's pension benefits were statutorily defined by the Retirement and Social Security Law, the New York City Employees Retirement System was not obligated to credit the officer's prior civilian service for the City in calculating pensionable income pursuant to the more favorable rate for members of the uniformed services]).
In addition, the DEP properly concluded that the petitioner's leave-time credits and rate of accrual must be based on a start date of November 2, 2014, when she began employment with DHS, and should not include her employment with various City agencies for the more than 11 years between December 21, 1987 and February 28, 1999. As relevant to City employment, "'resignation constitutes a complete break in the service, and the absolute termination of relations. Reentry into the service can be accomplished only by the voluntary act of the person who has power of appointment'" (Spurling v Police Dept of N.Y., 49 AD2d 823, 823 (1st Dept 1975) quoting Matter of Doering v Hinrichs, 289 NY 29, 33 [1942]; see also Matter of Hayes v Nigro, 165 AD3d 1134 [2d Dept 2018]; Matter of Walton v New York City Police Dept., 2019 NY Slip Op 32845[U], 2019 NY Misc. LEXIS 5194 [Sup Ct, N.Y. County, Sep. 25, 2019]). The administrative record supports the City's contention that its longstanding policy requires it to deem an employee's "start date" as the most recent date on which his or her continuous, unbroken period of employment with the City commenced.
Contrary to the petitioner's suggestions, the City, as a governmental entity, may not be estopped from rendering a determination that is contrary to an opinion or assurance previously given to her by one or more its representatives (see Matter of Quinto v New York City Dept. of Hous. Preserv. & Devel., 78 AD3d 559 [1st Dept 2010]). In other words, estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]). "'[I]t is well established that erroneous advice given by an employee of a governmental agency is not considered to rise to the level of an unusual circumstance' warranting invocation of the doctrine of estoppel" (Matter of Winners Garage, Inc. v Tax Appeals Trib. of State of N.Y., 89 AD3d 1166, 1169 [3d Dept 2011], quoting Matter of Walsh v Tax Appeals Trib. of State of N.Y., 196 AD2d 367, 370-371 [3d Dept 1994]). Nor does the fact that, between November 2014 and November 2019, the DHS, DDC, and DEP each continued to award the petitioner leave-time credits based on a February 4, 1985 start date estop any of them correcting that error (see Advanced Refractory Techs., Inc. v Power Auth. of State of N.Y., 81 NY2d 670 [1993]; Matter of Gonzalez v New York City Hous. Auth., 148 AD3d 505 [1st Dept 2017]; Matter of Sanders v New York State & Local Employees' Retirement Sys., 126 AD3d 1281 [3d Dept 2015]; Matter of Kriedemann v New York State Teachers' Ret. Sys., 134 AD2d 746 [3d Dept 1987]).
In connection with the petitioner's request that she be restored to her position of Administrative Manager (NM) at the DDC, the record reflects that her position has been restored, and is being held for her. Where, as here, an agency provides the petitioner with all of the relief that she requested, a request for relief pursuant to CPLR article 78 must be denied as academic (see Matter of American Univ. of Antigua v CGFNS Intl., 126 AD3d 1146, 1150 [3d Dept 2015]; Matter of Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 107 AD3d 1170, 1171 [3d Dept 2013]; Matter of Gonzalez v Mazzuca, 265 AD2d 411 [2d Dept 1999]; cf. Matter of Donoghue v New York City Dept. of Educ., 80 AD3d 535 [1st Dept 2011] [CPLR article 78 proceeding is not moot where petitioner had not received all of the relief that she requested from the City Department of Education]). Hence, that branch of the petition seeking restoration of the petitioner's prior position with the DDC is denied as academic.
Relief in the nature of mandamus may be brought to compel an agency "to perform a duty enjoined upon it by law" (CPLR 7803 [1]). It is well-settled that mandamus to compel "applies only to acts that are ministerial in nature and not those that involve the exercise of discretion" (Matter of Maron v Silver, 14 NY3d 230, 249 [2010]). Thus, "the petitioner must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief" (Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 842 [1st Dept 2005] [internal quotation marks omitted]). Stated another way, "[m]andamus is available . . . only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law" (New York Civil Liberties Union v State of New York, 4 NY3d 175, 185 [2005]; see Matter of Flosar Realty LLC v New York City Hous. Auth., 127 AD3d 147, 152 [1st Dept 2015]). The petitioner has failed to establish that she had a clear legal right to the leave-time credits and benefits she seeks, or that either the DEP or the City failed to perform a duty enjoined by law. Consequently, that branch of the petition seeking relief in the nature of mandamus to compel must be denied.
Accordingly, it is,
ORDERED that the petition is denied; and it is
ADJUDGED that the proceeding is dismissed.
This constitutes the Decision, Order, and Judgment of the court. 8/21/2020
DATE
/s/ _________
JOHN J. KELLEY, J.S.C.