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8/9/2019 Mott Ruling in Rea Case
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SUPREI\4E
COURT
OF
THE STATE
OF
NEWYORK
COUNTY OF ULSTER
X
In the Matter of the Application
of
CHRISTOPHER
REA,
Petitioner,
DECTSTON/0RDER
-against- Index No. 14-3659
R.f.l, No.55-t4-2L69
Richard
Mott,
|.S.C.
The
CITY OF
KINGSTON
and
SHAYNE
R.
GALLO,
In his
official
capacity as Mayor,
Respondents.
X
Petition Return Date: December
L9,20L4,
final
submission
received
|anuary
23,20L5.
APPEARANCES:
Petitioner:
Ronald G. Dunn, Esq.
Gleason,
Dunn, Walsh & O'Shea
40 Beaver Street
Albany,
NY
12207
Respondents
Andrew
P.
Zweben,
Esq.
Corporation Counsel
420Broadway
Kingston,
NY 1-2401
Mott,
f.
Petitioner,
pursuant
to CPLR article
78, moves for an order vacating the
Disciplinary
Decision
(hereinafter
Decision ),
of
the Kingston
City
Mayor
(hereinafter
Mayor ),
terminating
his employment, adopting
the
Hearing Officer's
recommendations
to dismiss
the
disciplinary
charges,
reinstating
him
as
Assistant Fire
Chief
in the Kingston
Fire
Departmept,
and awarding
full
retroactive
pay,
other emoluments,
costs
and
disbursements.
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Background
As
q
threshold
procedural
matter,
Defendants
move for an order
transferring
this
proceeding
to
the Appellate
Division
pursuant
to CPLR
S
780a(g)
upon the
ground
that it
requires review of
the Decision
made after
a
hearing,
raising
questions as to whether
it
is
supported by substantial
evidence.
Petitioner
opposes,
invoking
this
Court's
jurisdiction
to
dismiss upon
statute
of
limitations
grounds.
Civil Service
Law
(CSL)
S75[a);
CPLR
S780a[e).
While
it
is
undisputed
that
a
substantial
evidence
question
has
been raised
under
CPLR
g
7804(gJ,
see,
Matter of Secreto
v County
of
Ulster,228
ADZrJ
932, 933
(3d
Dept.
L996);
Matter
of
Segruev
City of
Schenectady,L3ZADZd
270,273'274
(3dDept.
1987); see
also
Matter
of Bonez
v
Commissioner
of Prison
Sys. of
State
of N.Y.,
Dept. of Corrections,
65
AD3d
'1,4IL,1,41,L
(3d
Dept. 2009),
this
Court,
nevertheless,
is obligated
to
address
Petitioner's statute of
limitations
claim.
CPLR
S780atg).
Procedural
History
A Notice of
Discipline was filed
on
August 22,TALZ
against
Petitioner.
(Verified
Petition
of
Ronald G.
Dunn, Esq., dated
November
2L,20L4,hereinafter,
Verified
Petition ;
Exhibit C,
hereinafter
Original
NOD ). It contains
two
charges
with multiple
specifications.
After
commencement
of
the disciplinary
proceeding,
Petitioner sought
pay
for the
period
commencing 30
days after his
suspension,
and challenged
some charges
as
being barred
by
the
statute of
limitations.
These
issues
were
addressed by the
Appellate Division,
which
made
a
limited
finding
on the statute of
limitations
grounds
as
to
the
specifications
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contained
in the
Original
NOD.
Subsequently,
on
November
27
,20L3,
Respondents
filed
an
Amended
Notice of
Discipline
(Verified Petition,
Exhibit
H,
hereinafter,
Amended N0D ),
containing 56
specifications
under
Charge
1
(Misconduct).1
Both NODs
spanned
events
alleged to.have
occurred
from
early
2006
to
February,
20L2.
The Hearing
Officer
Opinion and
Recommendation
issued
on
July
'J'8,20L4.
(Verified
Petition, Exhibit
f),
and the
Mayor
issued
his
Disciplinary
Decision
(Verified Petition,
Exhibit
L, hereinafter
Decision ),
on October
14,2014.
Contrary
to the
Hearing
Officer's
recommendation,
the
Decision
sustained
some
of the
specifications
in
Charge
1.
This
Petition
ensued,
challenging the Mayor's
Decision.
Upon
review of
the
statute
of
limitations
objections,
referring
to
the Original
NOD,
the
Appellate Division
found:
[m]ost
of
the specifications
under
charge
1-
[misconduct)
challenged
by
petitioner as untimely
involve
conduct
which could,
depending
on the
proof,
constitute
a crime
[see,
People
v.
Serkiz,
1 7
AD3d 28
[2005]).
As
for the
other
specifications
in
charge
1
challenged as
time-barred,
they
appear
to
have
been
continuing
in
nature
and it
is not
clear
if all relevant
alleged
acts
were
completed
more
than
18
months
before
the
charges
were filed.
.,.
Petitioner's
other time-related
challenge
to the
charges
cannot
be
granted
at
this time,
but can
be asserted
at the
disciplinary
hearing
when
the underlying
facts are
more
fully
deveioped.
Matter
of Christopher
Rea v.
City
of Kingston,
et
al,
Case
No. 516294,
Memorandum
and
Order, dated
October
17,20L3'
(Verified Petition,
Exhibit
E).
This Court's
review
is limited to the
statute
of
limitations objections
for
specifications
that
were sustained
in the
Decision.2
1
Only
Charge
f.
is
under
consideration
on this
Petition
because
the
specifications
unfler
Charge
2
were
not
substantiated.
2
Petitioner
states
that
Specification s
46,
47 and 48 on
Charge L
were withdrawn
by
the
City at the
hearing,
citing
page
159
ofthe transcript.
Nevertheless, the
Decision
substantiates
each ofthose
charges.
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Statute of
Limitatíons
[Civil
Service
Law
S
75(4)]
The
statute
of limitations
for disciplinary
charges
pursuant
to
CSL
575(4)
is eighteen
months.
Here, the
disciplinary
charges
were
first filed
on
August
22,20L2,
thereby
rendering the
commencement
date of
the statute
February
22,20IL.
Only
seven
of the
substantiated
specifications
arguably
fall
within
the statute
of
limitations
period.3
However, such
limitations
period
is inapplicable,
where
the
incompetency
or
misconduct
complaine
C
of anLd
describ'ed
in
the
charges would,
if
proved
in
a
court
of
appropriate
jurisdiction,
constitute
a crime
(Civil
Service
Law
$
75
l4l[emphasis
added])'
Rodriguez
v.
Cnty. of
Albany,
L05
A.D.3d
IL24,
LL26 (3dDept.
2013).
Respondents
maintain that
the
substantiated
specifications
allege acts
constituting
larceny or
attempted
larceny
and/or
fraud,
and/or
filing a false
instrument.a
Petitioner
contends
that
the
specifications
fail to
state
or
establish
the
requisite
criminal
intent
for
any
of these crimes.
Discussion
[O]ur
inquiry
is limited
to the
allegations
contained
in the
charges
and
specifications,
without
consideration
of
the
proof
or
papers
submitted
in
petitioner's
subsequent
judicial
proceeding
(or
at
any ensuing
disciplinary
hearing)
challenging
the
charges
as untimely.
Rodriguez
v. Cnty. of
Albany,
L05
A.D.3d atLt26.
Here,
the
specifications
describe
four
categories
of
misconduct.
The
firsts
concerns
the
receipt
of
compensation
þy
Petitioner,
an employee,
without
using leave
time
on
dates
where
Petitioner
did
not
perform
work
for the
city,
and
also
submitted
vouchers and
received
3
Charge
1,
Specifications
14,
75,L6,L8,52-54.
a
Respondents
also contend that
these
acts were
continuing
in nature, thus
altering
the operable
statute
of
limitations date,
and/or
estopping
Petitioner from
invoking
it as a
consequence
of his fraudulent
conduct.
In
light
of
the Court's decision
herein,
this
issue is
not
addressed.
s
Charge
1, Specifications,
1-3, 5-13.
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compensation
for
work
elsewhere.
The knowing
failure to
perform
work
under
a contract
while making a
representation
to the
contrary,
constitutes
the taking
or obtaining
of
property by
false
pretenses,
to
wit: larceny.
People
v.
Headley,
37
Misc. 3d 815,
822(Sup.
Ct.)
opinion
adhered to on
reargumeq ,
36
Misc.
3d
1 240(A)
(Sup.
Ct.
20t2);
PL
1s5.05(2)(a).
Thus,
in
a
contract action
materially
false
representations
affecting
"the
basis
of
the bargain
because
the
complainants
were
deceived
as to
what
they
were
actually
getting
-
they
paid
for
something
they
had
bargained'for
but did
not
receive,"
was sufficient
to constitute
larceny
by
false
pretenses. Id. As
indicated,'to
establish
a
larceny,
there
must
be
a
taking.
People
v.
Headley,supra.
At82L.
Here, Petitioner,
an
employee
contracted
by
Respondents,
was alleged
to
have
received
compensation
without having
performed
the
contracted-for
work.
This specification
is sufficient
to show larceny
by
false
pretenses,
inasmuch
as
it
alleges
Petitioner
received compensation
from
the city
fire
department
without
performing work
or using
leave time.
The allegation
that
Petitioner
submitted
a voucher
to
receive
payment
for
work
performed
elsewhere
on the
same
days
he
purportedly was
working
for the city
is sufficient
to
satisfy
the element
of knowledge.
"A
person
acts
intentionally
with respect
to
a
result
or to conduct
described
by
a
statute
defining an
offense when
his consoious
objective
is to cause such
result
or to engage
in such
conduct."
PL
$
15.05(1).
Petitioner
perforce
was
aware he
was employed
and that
his
employment
contract
required
him
to
work
for
pay,
as the charges
herein
relate to workplace
discipline.
The allegations
that Petitioner took affirmative
action
to obtain
undue
benefit (obtain
salary
without
working
or using
leave
time),
while
misrepresenting
his status
to his employer,
(i.e.,
as
working
instead
of
on
leave),
if
proved
in a criminal
court,
would
constitute
the crime
of
larceny, or
a
taking,
by
false
pretenses.
There
is
no need,
under these
circumstances,
to invoke
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the
recitation
of
the
word intentionally
receiving
an undue
benefit.
Rather,
the
knowledge
element
may
be
derived
from
the
proof
of
Petitioner's
actions
in
the
context
of
surrounding
circumstances.
See,
e.g.,
People v.
Cadbury
Beverages,
Únc.,203
A.D.2d 918
(4th
Dept.
1994);
People
v. Gerham,l7
A.D.3d 858
(3d
Dept. 2005).
The third
category
of
misconduct6
concerns
absence
from
work
without
requesting
leave and
the
receipt
of
pay
as
if Petitioner
had
been
working.
These specifications
are
sustainecl
as
being
within
the
exception
to the
statute
of limitations
for the
same
reasons
as
applied
to
the
first
category
of
specifications
herein.
CSL
575(4)'
Thus,
with
respect
to the misconduct complained
of and described
in the
charges
in
the
specifications
under
categories
(1J
and
(3),
the acts
described
therein
would
constitute
a crime
if
proved
in
a
court
of competent
jurisdic
tion. Rodriguez
v.
Cnty.
of
Albany,
L05
A.D.3d
atL.L26.
Consequently,
the
CSL
575(4)
statute
of
limitations
bar
is
inapplicable to
these
specifications
under
Charge
1
of the
Amended NOD.
The second
and
fourth
categories
of misconductT
refer
to
specifications
concerning
the
reporting of
vacation
and
accruals
and
the subsequent
application
for,
and
receipt
of,
supplemental
pay
based
upon
those
reports
of accruals.
These
specifications,
all included
in
the
Original
NOD,
were
addressed
by the
Appellate
Division
as
follows:
As
for the other
specification
in charge
1
challenged
as
time-barred,
they
appear
to
have been
continuing
in
nature
and
it is
not
clear if
all relevant
alleged
acts
were completed
more
than
18 months
before
the
charges
were
filed.
Petitioner's
other
time-related
challenge
to
the charges
cannot
be
granted
at
this time,
but
can be
asserted
at
the
disciplinary
hearing when the
underlying
facts are
more
fully developed.
6
Charge L, Specificati
ons 2\-26,28-95,38
and
43-54.
See
footnote
2,
regarding the
withdrawal
at
the
hearing
of
specification
s
46-48
under
Charge
1.
The specifications
in this
category
were
not included
in
the
Original
NOD.
7
Charge
1, Specifications
14-16
and Charge 1,
Specifications
17
and
LB,
respectively.
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Because the review
as to
the applicability
of
a statute
of limitations
regarding
categories
two
and
four
necessarily
involves
a
question
of
substantial
evidence,
such
determination
must
be made
by
the
Appellate
Division.
Accordingly,
a
question
of
substantial
evidence
having
been
raised under
CPLR
g780a(g),
and
there
being
no legally
sufficient
objections
in
point
of
law
that could
terminate the
proceeding
without
reaching
the substantial
evidence
issue,
it is
ORDERED
that
this
proceeding is
hereby
transferred
to
the
Appellate
Division,
Third
Department for
disposition.
This
constitutes the
Decision and Order
of
this
Court. The Court is
forwarding
the
original Decision
and Order
directly
to
Respondent,
who
is
required
to
comply
with the
provisions
of CPLR
S
2220
with
regard to
filing
and entry
thereof.
A
photocopy of the
Decision and Order
is
being
forwarded
to all other
parties
who appeared
in
the
action.
All
original
motion
papers,
including
the below-referenced
documents
in
support
thereof,
are
being
delivered
by
the
Court
to the Supreme
Court Clerk
for
transmission
to the
County
Clerk.
Dated: Hudspn,J'{ew
York
ApritQ zots
ENTER,
RIC
.S.C
Papers
Considered:
1., Notice of Verified
Petition
by Ronald
G. Dunn,
Esq.,
with
Exhibits
A-M and
Brief
in
Support
of
Verified
Petition,
dated
November
2L,2014;
2. Respondent's
Verified
Answer
by
Andrew
P. Zweben,
Esq., dated
f
anuary
L5,20t5;
3.
Respondent's Memorandum
of Law, undated,
received
November
22,20'l'5;
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4.
Petitioner's
Reply Memorandum
of
Law,
dated
fanuary
20,20L4
[sic],
and
Affirmation
of
Ronald
G.
Dunn, dated
fanuary
20,20L5;
5. Transcript
of
Proceedings, dated December
9
,
2QL3,
February
2L, 20L4,
March
27
,
z}L4,April
3,
20 4,April
LL,20L4
-
Vol.
I-V with
City Exhibits
1-30,
Respondent's
Exhibits
1-5;
foint
Exhibits
1-14 and
1-7-IS,Affirmation
of
fames
Sottile
dated
February
L,20L4;
6. Opinion
and Recommendation
of
fohn
T.
Trela,
Hearing
Officer,
dated
fuly
L8,
20t4.
8