mott ruling in rea case

8/9/2019 Mott Ruling in Rea Case

1/8

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.

t


2/8

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

2


3/8

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.

3


4/8

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.

4


5/8

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

5


6/8

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.

6


7/8

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;

7


8/8

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

mott ruling in rea case

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