Opinion
Index No. 157672/2022 Motion Seq. No. 001 NYSCEF Doc. No. 35
02-29-2024
MIRMOHAMMAD HASSAN, Plaintiff, v. NEW YORK CITY CIVIL SERVICE COMMISSION, KEECHANT L SEWELL, NEW YORK CITY POLICE DEPARTMENT, CITY OF NEW YORK Defendant.
Unpublished Opinion
MOTION DATE 01/25/2023
DECISION + ORDER ON MOTION
RICHARD LATIN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).
In this proceeding, petitioner Mirmohammad Hassan moves to annul and vacate the Police Commissioner's decision to terminate petitioner's employment following a discipline hearing held in absentia and the New York City Civil Service Commission's ("CSC") determination that affirmed the Police Commissioner's determination pursuant to Article 78 of the CPLR. Petitioner further seeks an order remanding the disciplinary matter for an evidentiary hearing before the New York Police Department Commissioner of Trials, reinstating petitioner to his position with back pay, and granting petitioner all costs, disbursements, and attorney fees associated with this proceeding. Respondents New York City Civil Service Commission, Police Commissioner of New York City Keechant L. Sewell, New York Police Department, and the City of New York cross-move to dismiss the petition for failure to state of a cause of action pursuant to CPLR 3211(a)(7) and to grant respondents costs, fees, and disbursements.
Background
Petitioner was employed by the NYPD as a Traffic Enforcement Agent from April 27, 2011, until March 3,2022 (petition, NYSCEF Doc No. 1 ¶7). The NYPD brought five disciplinary charges against petitioner arising out of incidents between 2017 and 2019 alleging that petitioner made two false statements relating to a vehicular accident on May 15, 2017, vocally interrupted roll call on September 14, 2018, continuously keyed his department radio for two hours on February 17, 2019. rendering the radio unusable to other employees, and acted discourteously to a Traffic Supervisor (id. ¶¶ 9-12).
On September 30, 2021, petitioner and his attorney, Arthur Schwartz, attended a control conference before the NYPD Deputy Commissioner of Trials, Joshua Kleiman ("Trial Commissioner"), and set trial dates for the disciplinary cases on November 4th, 5th, and 12th of 2021 (NYSCEF Doc No. 1 ¶¶ 13- 14). On October 27, 2021, Schwartz notified the Trial Commissioner that he was discharged as petitioner's attorney, and Stewart Lichten gave notice of his appearance as petitioner's new attorney on October 28th (id. ¶¶ 15-16). Petitioner states that his union assigned Lichten to represent him at the disciplinary hearing (id. ¶ 17). Petitioner called out sick on November 2, 2021, providing a doctor's note that stated petitioner was medically unable to work from November 1st-15th due to ongoing injuries sustained in a motor vehicle accident on July 2, 2021 (id. ¶¶ 18-19). The NYPD cancelled the hearing dates and scheduled a conference for November 30, 2021, to reset the hearing dates (id. ¶ 22). Petitioner alleges that Lichten waived petitioner's appearance at the November 30th conference and the disciplinary hearing was scheduled to begin on December 6th, 2021 (NYSCEF Doc No. 1 ¶¶ 23-24).
Respondents dispute this version of events. According to respondents, the trial was scheduled for November 4th and 5th, but petitioner called out sick for the week of the trial (Civil Service Commission Appellee Brief, NYSCEF Doc No. 11 at 2-4). The first date of the trial was then rescheduled for November 12th with a second date of December 6th added (id.). Petitioner then presented a doctor's note stating he would be unable to work from November 1 st-15th because he was receiving medical treatment; thus, the November 12th date was cancelled (id.). The trial was set to begin on December 6th and a second date of December 15th was added (id.). Respondents state that on November 30th, "a conference was requested by Agency Attorney Henry after Attorney Lichten reported that [petitioner] informed him that he did not intend to appear for the December 6, 2021 trial" (id.). At the conference, the judge granted Agency Attorney Henry's request to permit the trial on December 6th to move in absentia if petitioner failed to appear (id.). A notification was sent to petitioner's NYPD unit about the importance of the December 6th trial, the Assistant Commissioner Kleiman requested a notification be made to petitioner about the trial, and Agency Attorney Henry contacted petitioner's commanding officer to reiterate the importance of the meeting (id.). According to the Civil Service Commission Appellee Brief, after he received these notifications and speaking to Lichten, petitioner terminated Lichten's services on December 2nd (id. at 4).
On December 6th at 5:30 AM, petitioner notified the NYPD that he would be out sick, and the Tribunal was notified (NYSCEF Doc No. 1 ¶ 25-26). Lichten notified the Tribunal that he had been discharged by petitioner and the Tribunal granted his application to be relieved as counsel (id. ¶ 29-30; see also Trial Commissioner's Report and Recommendation, NYSCEF Doc No. 3 at 4). Petitioner alleges that he did not discharge Lichten and that Lichten's appearance, along with the union's Acting President's appearance, at the December 6th hearing is evidence of such lack of discharge (NYSCEF Doc No. 1 ¶ 35). Petitioner also states that the fact that Lichten filed an appeal on petitioner's behalf is further evidence that petitioner did not discharge Lichten (id. ¶ 35).
At the December 6 hearing, Lichten explained that petitioner was originally represented by the union, but he discharged the union to retain Schwartz, whom he also discharged, and the union assigned Lichten to represent petitioner (transcript, NYSCEF Doc No. 4 at 8). Lichten stated that after talking to petitioner multiple times on the phone, petitioner said, "he was discharging [Lichten]" and "discharging the union from representing him" (id. at 9). The Commissioner asked if Lichten had informed petitioner of the trial date, which Lichten affirmed, and stated that discharging three different attorneys in advance of the hearing was almost "prima facie evidence of an attempt to avoid going forward with the trial" (id. at 9). The Commissioner allowed the trial to proceed because even after the judge had warned petitioner that the trial "would be going in absentia if [he] failed to appear," petitioner had "voluntarily absented himself' from the hearing (id. ¶ 4 at 4, 11). At the hearing, Christopher Henry, representative for the NYPD, suggested that the union president might have information about Lichten's discharge, but Commissioner Gamble declined to hear from the Union President because he was not a witness or attorney (NYSCEF Doc No. 4 at 9-10).
Petitioner claims he had no written notice that his failure to appear would result in a hearing in absentia (NYSCEF Doc No. 1 ¶ 69). He alleges that the Commissioner did not provide petitioner with the opportunity to explain his history of discharging his attorneys and that the Commissioner should have allowed the Union President to speak at the hearing (NYSCEF Doc No. 1 ¶¶ 39-40). He states that he was texting the Union President at the time of the hearing notifying the Union President that he did not actually fire Lichten (id. ¶ 6). Petitioner also alleges that there was not an effort to allow him to participate remotely (NYSCEF Doc No. 1 ¶ 47).
Petitioner appealed to the CSC, and on May 13, 2022, the New York City Civil Service Commission affirmed the final decision of the Trial Commissioner NYSCEF Doc No. 1 ¶ 75; NYSCEF Doc. No. 10). Petitioner argues the trial held in absentia violated his due process and other constitutional rights and that the CSC failed to address these concerns (id. ¶ 76). Petitioner seeks to annul and vacate the CSC's determination that affirmed the Police Commissioner's decision to terminate his employment pursuant to Article 78 of the CPLR.
Discussion
The Court first evaluates the CSC's decision affirming the NYPD and Police Commissioner's determinations. Under New York Civil Service Law § 76, petitioner has the option to appeal a decision to the CSC or the court. Here, the petitioner first appealed to the CSC. According to New York Civil Service Law § 76, CSC decisions are "not subject to further review in any court." However, the court is permitted a narrow review to determine if the CSC "acted in excess of its authority or in violation of the Constitution or of the laws of this State" (Matter of New York City Dept, of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d at 324). The court's standard of review into CSC's decision is "exceedingly limited" and limited to whether the CSC acted "illegally, unconstitutionally, or in excess of its jurisdiction" (id. at 323).
Petitioner claims that the CSC "failed to address any of the due process and other constitutional violations implicated in the disciplinary hearing" (NYSCEF Doc No. 1 ¶ 76). Petitioner argues that the CSC's determination was "without any consideration of the constitutional and statutory issues" (id. ¶ 81). Here, the CSC's decision states:
The Commission has reviewed the record below, which we incorporate by reference into this decision, as well as arguments submitted on appeal, and find that there is sufficient evidence to support the final determination and that the penalty imposed is appropriate (Civil Service Commission Decision, NYSCEF Doc No. 12 at 1).
The record is clear that the CSC reviewed and considered petitioner's arguments that his due process rights and other constitutional rights were violated. Petitioner argues that the court has jurisdiction to review the CSC's decision because the Police Commissioner's decision "implicates his fundamental constitutional right to due process" (NYSCEF Doc No. 1 ¶ 77). Respondents state that these assertions do "not provide facts or evidence, beyond conclusory allegations, to show how the CSC acted illegally, unconstitutionally, or in excess of its jurisdiction" (respondents' memorandum of law, NYSCEF Doc No. 26 at 8). The court agrees because petitioner only alleges due process violations on behalf of the Police Commissioner, not the CSC. Petitioner disagrees with the CSC's determination, but he does not allege that the CSC acted "illegally, unconstitutionally, or in excess of its jurisdiction" (Matter of New York City Dept, of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d at 323). Therefore, petitioner does not demonstrate nor allege that the CSC abused its discretion or violated his constitutional and statutory rights when it reached an unfavorable decision for petitioner.
Petitioner's arguments are identical to those the petitioner raised in Matter of Horowitz v New York City Civil Service Commission, in which the court concluded that a petitioner who appeals a decision to the commission "may not seek judicial review of it unless he demonstrates that the Commission acted illegally, unconstitutionally, or in excess of its jurisdiction" (Matter of Horowitz v New York City Civ. Serv. Commn., 2011 NY Slip Op 31101 [U], *7 [Sup Ct, NY County 2011]). The petitioner argued that the New York City Housing Authority (NYCHA) violated his due process rights and the CSC's decision to affirm the NYCHA ruling was merely a rubber-stamp that further violated his due process rights (2011 NY Slip Op 31101 [U], *3-4 [Sup Ct, NY County 2011]). The court refused to accept petitioner's "rubber-stamping" theory and his conclusory allegation that the CSC failed to consider the facts and evidence, because these arguments fell "short of demonstrating that respondent acted illegally, unconstitutionally, or in excess of its jurisdiction" (id. *7-8).
Similarly, petitioner here argues that CSC rubber-stamped the hearing judge's ruling and did not address his arguments (NYSCEF Doc No. 12). The court has exercised its narrow standard of review and considered that CSC's written decision incorporated the arguments by reference. Based on the above, the court concludes that petitioner has not shown "that the Commission acted illegally, unconstitutionally, or in excess of its jurisdiction;" and accordingly, it concludes that "the penalty imposed by the Commission is likewise unreviewable" (2011 NY Slip Op 31101 [U], *7 [Sup Ct, NY County 2011]). As the court dismisses the petition on this basis, it does not reach the portion of petitioner's petition that seeks to annul and vacate the Police Commissioner's decision to terminate his employment.
Accordingly, it is hereby
ORDERED that petitioner's petition is denied; and it is further
ORDERD that respondents' cross-motion to dismiss is granted; and it is further
ORDERED and ADJUDGED that the petition is dismissed.