Opinion
112711/2005.
Decided October 10, 2006.
For the Petitioner, Reynold A. Mauro, Esq., NY.
For the Respondent, Michael A. Cardozo, Esq., Corporation Counsel, City of New York.
Jennaydra D. Clunis, Esq. NY.
In this Article 78 proceeding, petitioner seeks an order reversing, rescinding, and annulling the March 1, 2004 agreement which he signed, pursuant to CPLR 7803 (3). Respondent cross-moves to dismiss the petition on the ground that it is time-barred, fails to state a cause of action, and lacks subject matter jurisdiction. For the reasons which follow, the cross-motion is granted, and the petition is dismissed.
Factual and Procedural Background
According to the verified petition, petitioner is a former employee of respondent Fire Department of the City of New York (FDNY) (Ver. Pet. ¶ 3). On about March 1, 2004, he was hired on a probationary one-year basis (Ver. Pet. ¶¶ 3-4). On that date, he signed an "Agreement" in which he agreed to be "tested for alcohol, marijuana and controlled substance use and/or abuse on a random basis, at the discretion of the [NYPD], for a period of 18 months from the date of appointment," that he understood that "during the term of this agreement, [he] will be terminated if [he] violate[s] this agreement," and that he "waive[s] any and all rights, including any right to a disciplinary hearing, pursuant to Section 75 and 76 of the City Civil Service Law, Article 78 of the Civil Practice Law and Rules, and any applicable collective bargaining agreement." (Ver. Pet. Ex. A). Petitioner was told that if he did not sign the agreement, his employment would be terminated (Ver. Pet. ¶ 6). He was not provided legal or union representation at the time (Ver Pet. ¶ 7). He was advised that he was required to sign this agreement, as were others, "due to some issues pertaining to drugs and/or alcohol purportedly being revealed in the background checks of petitioner and other probationary firefighters" (Ver. Pet. ¶ 10). Petitioner had an arrest record, but alleges that he had never been convicted of a crime and had no prior background of drug or alcohol abuse (Ver. Pet. ¶¶ 11-12).
During his one-year probationary period, petitioner was randomly tested at least ten times and always tested negative for drugs and alcohol (Ver. Pet. ¶ 13). However, on March 30, 2005, a urine sample taken from petitioner tested positive for alcohol (Ver. Pet. ¶¶ 16-17; Ex. B). Petitioner admits that the evening before, March 29, 2005, when off-duty, he and others had celebrated the completion of his probation and he had ingested alcohol; petitioner reported fit for duty the next day (Ver. Pet. ¶¶ 18, 19; Ex. C).
Based on his positive substance test, petitioner was suspended from duty for a month from April 13, 2005 through May 12, 2005 (Ver. Pet. Ex. E). Although it is unclear what occurred thereafter, petitioner was notified by letter dated May 19, 2005 that he was terminated from his position as a firefighter because as a "probationary firefighter," he had violated his agreement by testing positive for alcohol on March 30, 2005 (Ver. Pet. Ex. E).
Parties' Contentions
Petitioner contends that on May 19, 2005, he was no longer a probationary firefighter (Ver. Pet. ¶¶ 24, 25). Petitioner points to the April 4, 2005, "Supplement No. 25 to Department Order No. 31," issued by respondent, which indicates that petitioner, among others, had completed his probationary period and was granted tenure effective March 7, 2005 (Ver. Pet. Ex. G). He argues therefore that as a tenured firefighter, pursuant to sections 75 and 76 of the New York State Civil Service Law, he should have had the right to a disciplinary hearing at which he would have challenged the use of a urinalysis to determine the presence of blood alcohol content (Ver. Pet. ¶ 21), and brought forth allegations concerning disparate treatment of other firefighters who purportedly failed drug or alcohol tests but were not terminated (Ver. Pet. ¶ 25). In the instant proceeding, commenced by filing on September 12, 2005, petitioner seeks to reverse, rescind, and annul the agreement, and to be restored to his position as a firefighter.
Respondent cross-moves to dismiss the petition. It argues that the statute of limitations has run on any challenge to the agreement, signed on March 1, 2004, and that even if it had not, petitioner is estopped from arguing the validity of the agreement and cannot argue that the FDNY was not acting within its legal rights by requiring him to sign the agreement as a condition of employment. Respondent also argues that because petitioner concedes he ingested alcohol on the night before the test, in violation of the agreement, he cannot argue that his termination was in bad faith. Finally, respondent argues that the court lacks subject matter jurisdiction over any claim concerning the collective bargaining agreement.
Analysis
1. Statute of Limitations
An Article 78 proceeding against a public body may be commenced only when a matter has been finally determined by the administrative agency (CPLR 7801). According to CPLR 217(1), an Article 78 proceeding must be commenced within four months of the date of the final determination ( Carter v State of New York, 95 NY2d 267, 270). An agency determination is deemed final "when the petitioner is aggrieved by the determination" ( Biondo v New York State Bd. of Parole, 60 NY2d 832, 834). "In analyzing the Statute of Limitations issue we must first ascertain what is the determination sought to be reviewed" ( Martin v Ronan, 44 NY2d 374, 380). If there is further administrative action that could be taken to prevent or ameliorate the harm, then commencement of an Article 78 proceeding would be premature ( see, Church of St. Paul St. Andrew v Barwick, 67 NY2d 510, 520, cert denied 479 U.S. 985).
Petitioner commenced his proceeding within four months of the date of the letter terminating his employment. Where an employee is not entitled to a hearing in connection with the termination of his or her employment, the determination to terminate employment becomes final and binding on the date the termination becomes effective ( Matter of Armstrong v Centerville Fire Co., 83 NY2d 937, 939). Respondent's argument that the statute of limitations began to run on March 1, 2004, the date petitioner signed the Agreement, citing Nedd v Koehler, 159 AD2d 344 (1st Dept. 1990), is not persuasive in these factual circumstances. In Nedd, the Court ruled that the statute of limitations for challenging the agency determination began to run when the suspended tenured correction employee signed a plea agreement which disposed of the charges against her in return for her accepting, among other terms, a one-year return to probationary status and voluntary submission to random urinalysis testing. Within two months of signing the agreement, she tested positive for cocaine use and was fired without a hearing two months thereafter. Although she commenced an Article 78 proceeding within four months of her termination, the proceeding was dismissed as untimely, as the action accrued on the day she signed the plea agreement ( 159 AD2d at 345). She voluntarily gave up certain privacy rights rather than undergo a disciplinary hearing which was her right under the collective bargaining agreement ( 159 AD2d at 345, citing Whitehead v State of New York, Dept. of Mental Hygiene, 71 AD2d 653, 654 [2nd Dept. 1979], aff'd 51 NY2d 781 ["an employee who enjoys permanent status may, if voluntarily and knowingly done, waive statutory and contractual rights to a hearing before dismissal, where such waiver serves as the consideration for the curtailment of pending disciplinary proceedings."]). Here, in contrast, petitioner did not have permanent employment status at the time he signed the agreement, had no rights other than to decline the position by refusing to sign the agreement and, therefore, it is more consistent with decisional law to find that it is the notice of termination which triggered the running of the statute of limitations, it being the final agency determination ( Carter v State of New York, 95 NY2d 267, 270). Using the termination date as the trigger date for the statute of limitations, the proceeding is timely.
2. Validity of Agreement and Proceeding
It is a well-settled rule that judicial review of administrative determinations is limited to the grounds invoked by the agency ( Matter of Aronsky v Board of Educ., 75 NY2d 997). The court may not substitute its judgment for that of the agency's determination but shall decide if the determination can be supported on any reasonable basis ( Matter of Clancy-Cullen Storage Co. v Board of Elections of the City of New York, 98 AD2d 635, 636 [1st Dept. 1983]). The test of whether a decision is arbitrary or capricious is "determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" ( Matter of Pell v Board of Educ., 34 NY2d 222, 232), quoting 1 NY Jur., Admin. Law, § 184, p. 609). An arbitrary action is without sound basis in reason and is generally taken without regard to the facts ( Matter of Pell, at 232).
Here, the Fire Department has apparently instituted a policy that provides that certain new employees must agree to an 18-month disciplinary probationary period as concerns the use of and testing for alcohol, marijuana, and controlled substances ( see, e.g., Matter of Berry v City of New York, 21 AD3d 551 [2nd Dept. 2005] [similar agreement; probationary petitioner terminated for testing positive for marijuana]). This policy is embodied in an agreement which petitioner signed before a notary. The agreement states that petitioner agreed to "be tested for alcohol, marijuana and controlled substance use and/or abuse on a random basis . . . for a period of 18 months from the date of appointment to the position of Firefighter." If there is a finding of the presence of alcohol, marijuana or a controlled substance in his blood or urine, such finding would be deemed a violation of the agreement.
Although petitioner attempts to argue that the terms of the agreement are unclear, such arguments are unavailing. He contends that because it is legal in New York to drink alcohol although illegal to ingest marijuana or controlled substances, the allegation that he tested positive for alcohol use, after he became a tenured firefighter, but without any allegation that he was arrested or violated a law or statute, or refused to be tested, is sufficient to show that the termination was arbitrary and capricious. However, he completely fails to address the pertinent portions of the agreement stating that the "presence" of alcohol in his blood or urine within the first 18 months of his employment would be considered a violation of the agreement and grounds for termination (Sec. Am. Not. of Pet. Ex. A, Agreement ¶¶ 1, 4, 5). He also does not address the fact that by the terms of the agreement, he remained a disciplinary probationary employee for another six months following his becoming a tenured firefighter. He does not, in fact, dispute the fact that he was hired as a firefighter because he signed that agreement, or that he had been drinking on the evening before he was tested, or that he tested positive for alcohol use within the first 18 months of his employment with the Fire Department (Ver. Pet. ¶¶ 8, 14, 18).
Reviewing courts are "not empowered to substitute their own judgment or discretion for that of an administrative agency merely because they are of the opinion that a better solution could thereby be obtained." ( Peconic Bay Broadcasting Corp. v Board of App., 99 AD2d 773, 774 [2nd Dept. 1984]). The scope of review does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by the Authority" and "the sanction must be upheld unless it shocks the judicial conscience" ( Featherstone v Franco, 95 NY2d 550, 554, citing Matter of Pell v Board of Educ., 34 NY2d at 232-234). Given that firefighters work in dangerous situations where the lives of the public, co-workers and the firefighters themselves are at risk, respondent's monitoring of petitioner and those similarly situated concerning the use of alcohol and other substances cannot be said to be arbitrary or capricious or an abuse of discretion.
Petitioner's attempts to raise issues of fact which he would have presented to a hearing officer are unavailing, given that as a disciplinary probationary employee, he had no right to a hearing ( Wilson v Bratton, 266 AD2d 140 [1st Dept. 1999]). Once the court has found that a rational basis exists for the determination, its review is ended ( Matter of Sullivan County Harness Racing Assoc., Inc. v Glasser, 30 NY2d 269, 277-278). Here, it should be emphasized that it is not for this court to substitute what it might have done were it the Fire Department. Rather, the court's role is limited to determining whether there is any reasonable basis to support respondent's determination and action. The record does not support a finding that the termination of Joseph Newman by respondent was either arbitrary or capricious. Accordingly, respondent's argument concerning lack of subject matter jurisdiction over claims concerning the collective bargaining agreement need not be reached. It is therefore,
ORDERED that the cross-motion to dismiss the proceeding is granted; and it is further
ORDERED and ADJUDGED that this proceeding is dismissed.
This is the decision, order and judgment of this court.