Walker v. City of Plattsburgh

212 A.D.3d 936

181 N.Y.S.3d 736

In the Matter of Nicholas A. WALKER, Petitioner,

v.CITY OF PLATTSBURGH et al., Respondents.

535027

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 17, 2022

Decided and Entered: January 5, 2023

Satter Ruhlen Law Firm, PLLC, Syracuse (Mimi C. Satter of counsel), for petitioner.

Goldberger and Kremer, Albany (Brian S. Kremer of counsel), for respondents.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND JUDGMENT

Ceresia, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Warren County) to review a determination of respondent Mayor of the City of Plattsburgh terminating petitioner's employment as a firefighter/emergency medical technician.

On November 30, 2018 at an apartment complex in the City of Plattsburgh, Clinton County, petitioner, a firefighter and emergency medical technician, responded with his partner to a 911 call regarding a man lying in a fifth-floor hallway requesting medical assistance. When petitioner reached the patient, he was responsive and communicative, asking for help. Petitioner and his partner put the patient on a stretcher, securing him with the stretcher's leg and waist straps but not its shoulder straps. They wheeled the stretcher to the elevator and transported the patient down to the first floor, through the building's lobby and outside to where an ambulance was waiting. As they were leaving the building, the patient's arm went limp and dropped down to the side of the stretcher, causing petitioner to lift the patient's arm and place it across his chest. While petitioner and his partner were attempting to transfer the patient into the ambulance, the patient's upper body slipped off the stretcher and his head hit the back of the ambulance. The patient then fell to the ground and the stretcher, to which he was still attached, tipped over on its side. Petitioner and his partner detached the patient from the stretcher, attended to his head wound and attempted CPR. Other firefighters eventually arrived on the scene and the patient was loaded into the ambulance and brought to the hospital, where he was pronounced dead. An autopsy revealed that the patient sustained blunt force trauma to the head when he fell off the stretcher, killing him in a matter of seconds.

Within hours of the incident, petitioner filled out an incident report and a patient care form describing what had happened and filed these documents with the City of Plattsburgh Fire Department. The following day, petitioner was interviewed by the City of Plattsburgh Police Department regarding the incident and gave a sworn written statement to a detective. Moving forward, petitioner continued to work as a firefighter and emergency medical technician for over two years. During this time, the State Department of Health conducted an investigation of the incident, the result of which was petitioner agreeing to pay a $5,000 fine and complete additional training, and respondent City of Plattsburgh settled a wrongful death claim brought by the patient's family.

In January 2021, petitioner was served with a notice of discipline containing seven charges of misconduct, specifying that he knowingly made false statements in the incident report, patient care form and statement to the police. A hearing was conducted pursuant to Civil Service Law § 75(2), and the Hearing Officer recommended that all charges be dismissed. Respondent Christopher C. Rosenquest, the Mayor of the City of Plattsburgh (hereinafter the Mayor), reviewed the record, rejected the recommendation of the Hearing Officer, found petitioner guilty of all seven charges of misconduct and terminated his employment. Petitioner then commenced the instant CPLR article 78 proceeding, arguing that the Mayor's determination was not supported by substantial evidence, and Supreme Court transferred the proceeding to this Court (see CPLR 7804[g] ).

As a preliminary matter, and contrary to petitioner's contention, the charges of misconduct were timely filed. While disciplinary proceedings brought under the Civil Service Law must generally be commenced within 18 months after the alleged misconduct occurred, a statutory exception provides that the 18–month limitations period is inapplicable when the misconduct "would, if proved in a court of appropriate jurisdiction, constitute a crime" ( Civil Service Law § 75[4] ). In determining whether this exception applies, our inquiry is limited to a review of the "misconduct complained of and described in the [disciplinary] charges" ( Civil Service Law § 75[4] ), and we may not consider proof submitted at an ensuing disciplinary hearing (see Matter of Snowden v. Village of Monticello, 166 A.D.3d 1451, 1452, 89 N.Y.S.3d 366 [3d Dept. 2018] ; Matter of De Guzman v. State of N.Y. Civ. Serv. Comm'n, 129 A.D.3d 1189, 1192, 11 N.Y.S.3d 296 [3d Dept. 2015], lv denied 26 N.Y.3d 913, 2015 WL 7432847 [2015] ; Matter of Rodriguez v. County of Albany, 105 A.D.3d 1124, 1126, 962 N.Y.S.2d 801 [3d Dept. 2013] ). In other words, in making a threshold determination of timeliness, it is irrelevant whether the charges were ultimately established at a hearing. Here, the charges alleged misconduct which, if proved, satisfied each of the elements of the crimes of offering a false instrument for filing in the second degree (see Penal Law § 175.30 ) (three charges), making a punishable false written statement (see Penal Law § 210.45 ), falsifying business records in the second degree (see Penal Law § 175.05 ), making an apparently sworn false statement in the second degree (see Penal Law § 210.35 ) and perjury in the third degree (see Penal Law § 210.05 ). Therefore, the statutory exception to the 18–month limitations period applied and the charges were not untimely.

Turning to the question of whether the Mayor's determination was supported by substantial evidence, this is "a minimal standard that requires less than a preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based" ( Matter of Blamah v. New York Off. of the State Comptroller, 207 A.D.3d 905, 906, 172 N.Y.S.3d 509 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]). "In conducting our review, this Court may not substitute its own judgment for that of respondent[s], even when evidence exists that could support a different result" ( Matter of Snowden v. Village of Monticello, 166 A.D.3d at 1453, 89 N.Y.S.3d 366 [internal quotation marks, brackets and citations omitted]). Our role is to assess whether competent proof supports the...