Opinion
No. 16657/06.
2012-05-18
Robert KAEFER, Petitioner, For a Judgment Pursuant to Article 78 of New York State Civil Practice Law and Rules v. The NEW YORK STATE OFFICE OF PARKS, Recreation and Historical Preservation, Respondents.
Hogan & Cassell, LLP, Jericho, Attorney for Petitioner. Office of the Attorney General, Mineola, Attorney for Respondent.
Hogan & Cassell, LLP, Jericho, Attorney for Petitioner. Office of the Attorney General, Mineola, Attorney for Respondent.
ROBERT A. BRUNO, J.
Upon the foregoing papers, it is ordered that this motion is decided as follows:
In this proceeding pursuant to CPLR article 78, petitioner seeks a post Judgment order holding respondent The New York State Office of Parks, Recreation and Historical Preservation in contempt. The application is denied in its entirety.
Petitioner Robert Kaefer (Kaefer) seeks to hold respondent The New York State Office of Parks, Recreation and Historical Preservation (Parks) in contempt for failure of Parks to allow him to take a new hire test on June 12, 2011. The court finds the facts insufficient to support a claim of wilful violation of its mandates.
ARTICLE 78 PROCEEDING
Parks employed Kaefer as a seasonal lifeguard. As a seasonal lifeguard employee Kaefer had no rights to continued employment, and was required to reapply each year, taking a rehire test. In 2005, in order to satisfy a requirement that he submit a physician's letter to attest to his continuing ability, Kaefer submitted a false medical note attesting to his health and ability by a physician who had never examined him. He submitted a second false note after Parks became suspicious of the first. Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 hearing and he was permitted to complete the 2005 swim season. He was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, (PL175.30) for submitting a false instrument for filing.
Parks did not send Kaefer a 2006 rehire package and he was prevented from taking the new hire test on June 11, 2006.
Several months later, in October of 2006, Kaefer commenced this article 78 proceeding alleging that Parks acted arbitrarily and capriciously by treating him differently from other lifeguards who had been rehired notwithstanding criminal records, and that Parks deprived him of his rights to a hearing before refusing to rehire.
By order dated July 16, 2010 this court (Lally, J.) concluded that petitioner had failed in its burden of proving “that his punishment was so disparate from the treatment accorded to similarly situated lifeguards” and thus it was not was arbitrary and capricious ( see Kaefer v. New York State Office of Parks, 28 Misc.3d 1226(A) *3 [Supreme Court Nassau County 2010] ). Nonetheless, as Parks had voluntarily commenced a hearing process, its failure to complete the process was a violation of its own rules. Thus the court directed Parks to provide Kaefer with a hearing, and in its July 16, 2010 order, stated:
Respondent scheduled, rescheduled and then cancell[ed] the rescheduled hearing with a promise to provide a new date. Once initiated, respondent was required to complete the disciplinary process ... and by failing to do so it violated its own policies and procedures, which deprived petitioner of any opportunity to explain his action and/or to plead his case.
In prohibiting petitioner from taking the new hire test without having afforded him a Step 1 hearing, respondent, in fact made a decision without giving petitioner the benefit of such a hearing
Therefore, respondent is directed to provide to petitioner the hearings he is entitled to pursuant to Exhibit “C”.
( Kaefer v. New York State Office of Parks, 28 Misc.3d 1226(A) *4, supra ). In order to prevent further delay in the directed hearings the court also directed that Kaefer “be permitted to take the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.” The court noted that although Kaefer was wrongfully prohibited from taking the new hire test in 2006 without a hearing, there was “no certitude that he would have passed same or that an opening existed.”
POST JUDGMENT FACTS
The following year the new hire test was held on June 12, 2011. Kaefer, on the last business day before the scheduled test, sought and was refused a temporary restraining order in this Court and in the Appellate Division. By order to show cause Kaefer had sought to take the test requesting a temporary restraining order from the Appellate Division prohibiting Parks from interfering with his right to participate on June 12. The Appellate Division struck the temporary restraining order which ordered Parks “enjoined from prohibiting Petitioner–Appellant from taking the new hire procedure for lifeguards ...”. Parks did not permit Kaefer to take the June 12, 2011 new hire test.
Notwithstanding the stricken TRO and refusal of the Appellate Division to direct Parks in the matter, Kaefer moved by this order to show cause dated August 3, 2011 to hold Parks in contempt for preventing him from taking the June 12 test. The within application by order to show cause was submitted for decision March 21, 2012.
CONTEMPT
“A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court” and in order to prevail “the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party's rights” (HSBC Mortg. Corp. v. Oberlander, 91 AD3d 721, 722 [2nd Dept 2012] ).
This court's order and judgment was appealed and cross-appealed by the parties, which appeals have not been perfected. Parks operated under the belief that there was an automatic stay of this court's order (Lally, J.) with respect to the hearings and the new hire tests while the cross-appeal was pending. When Kaefer thereafter sought an order of the Appellate Division on June 10th “prohibiting [Parks] from interfering with [Kaefer's] right to participate in the new hire procedure for lifeguards” which was scheduled for June 12, 2011, the Appellate Division struck a temporary restraining order so directing pending resolution of the order to show cause.
The Appellate Division refused to direct Parks to allow Kaefer to take the June 12 new hire test based upon this court's order. This court will not now exercise its discretion to hold Parks in contempt based upon Parks' belief that there was an automatic stay, as well as its reliance upon the Appellate Division refusal to direct relief by temporary restraining order. Parks will not be held in contempt for not doing on June 12th what the Appellate Division refused to direct it to do on June 10th.
Moreover, this court finds that Kaefer has not established that his rights have been prejudiced. This Court did not direct Parks to hire Kaefer, thus even had Kaefer taken the new hire test, he cannot show that he would have been hired. The court rejects his argument that he need only show that taking the test provided him an opportunity to be hired.
Kaefer seeks further relief regarding the nature of the hearing to be held. He avers that “the time has come to sanction Parks” with respect to the hearing. Kaefer appeared at the Step 1 Hearing proposing that the scope of the hearing was to determine if Kaefer should be “banned from service for life”. No such direction issued from this court. Indeed this court merely directed Parks to continue the process it had already begun, i.e., to proceed with a Step 1 Hearing. The court's reference to a “ban for life” was related only to the point at which Kaefer would no longer be eligible to sit for a new hire test. The order did not direct that the nature of the penalty to be imposed was the subject matter of the hearing. The Step # 1 hearing was not meant to address an excessive penalty, which appears to be Kaefer's point, as such issue was not part of the Article 78 proceeding before the court. Parks was directed to provide a hearing pursuant to Exhibit “C”.
Kaefer has submitted the a copy of the “Local Labor Management Agreement for the Handling of Lifeguard Performance ... Deficiencies”. Step # 1 provides “If after investigation and discussion” there is is unanimous agreement as to “appropriate action” the matter is resolved. If there is not unanimous agreement there is a “need to proceed to Step # 2”. At Step # 2 the official will “gather facts and issue a decision”. Parks avers that Step # 2 provides a de novo review not dependent on the outcome of Step # 1. Parks' position is that there was no agreement at the Step # 1 hearing, and that Kaefer waived his right to Step # 1. Kaefer asserts that there was an oral agreement to proceed with the Step # 1 hearing once Ms. Guliani confirmed the scope of the hearing. Ms. Guliani disputes his assertion that she agreed to reconvene the Step # 1 hearing.
Kaefer was entitled to “plead his case” at the Step # 1. He treated it as an excessive penalty hearing. Clearly there would be no agreement which would resolve the matter. No sanction against Parks is warranted. Attorneys' fees are denied. Accordingly, Kaefer's motion is denied in its entirety.
All matters not decided herein are DENIED.
This constitutes the decision and order of this Court.