For a Judgment and Order Pursuant to Article 78 of the Civil Practice Law and RulesINTERIMDecision, Order and Judgment Petitioner worked as a healthcare technician — a Psych Tech — at Bellevue Hospital Center from June 6, 2011 until November 20, 2017. According to the petition, around April of 2016 a psychiatric patient filed a complaint against him. Respondent Bellevue Hospital Center, which is a part of respondent New York City Health and Hospitals Corporation (NYCHH), notified petitioner of the charges. On April 25, 2016 until May 15, 2016, petitioner was suspended pending a determination. After his step 1A informal disciplinary conference on May 15, 2016, Bellevue substantiated only one of the charges against petitioner — which asserted that he gave a patient his personal cell phone number — but it dismissed the rest of the charges as there was insufficient evidence. Petitioner agreed to a 15-day suspension without pay1, and he continued in the employ of the hospital.The Justice Center for the Protection of People with Special Needs (Justice Center) is a government agency which protects and advocates for people with special needs and disabilities (see 14 NYCRR §700.1). This gave it the jurisdiction to consider the complaint against petitioner. On October 20, 2016, the Justice Center issued its own determination on the matter. This decision substantiated the charges of sexual abuse against petitioner. At this point, the Justice Center was required to provide the employee with a written notice of the findings of the report (14 NYCRR §700.4 [a]). In addition, and due to the serious nature of the charges, the Justice Center then placed petitioner on a staff exclusion list (SEL). The individuals on the list cannot be hired by any state operated or any agency licensed or certified by the state (Social Serv. Law §495 [3]). In addition, a person who is placed on the SEL is subject to immediate termination (Social Serv. Law §495 [4]). When the agency is bound by a collective bargaining agreement, “such action established by collective bargaining shall govern” (id.).The employee has thirty days to challenge the determination by seeking an amendment of the report (14 NYCRR §700.4 [c]). The executive director of the Justice Center has the discretion to accept an untimely request for amendment when “extraordinary circumstances” exist (14 NYCRR §700.4 [e]). Petitioner contends he never received a notice of the substantiated charges. Instead, he states, he was alerted to the decision and his placement on the SEL by his employer.Once petitioner learned of the substantiated charges, he retained counsel. His attorney obtained a redacted copy of the notice on October 20, 2016 and on December 5, 2016 lodged a request for amendment. The Justice Center denied the request as untimely and on December rejected his request for reconsideration. Throughout this period, petitioner continued as a Bellevue employee until, on November 20, 2017, Shamelle Harcum, Bellevue’s Human Resources Director, informed him that he was being terminated due to his placement on the SEL, effective immediately. This Article 78 proceeding followed.As against the Justice Center, petitioner states that he was not provided with the requisite notice and did not inform him of his rights with respect to the proceeding and appeal. Since he commenced this proceeding, however, petitioner has settled and discontinued its complaints against the Justice Center, and the parties have agreed that petitioner’s request for amendment shall be considered following a specified procedure.The proceeding remains active against the hospital respondents, however. Petitioner alleges that NYCHH failed to follow its personnel rules and regulations when it dismissed petitioner, and thus it denied petitioner his due process rights. Petitioner additionally seeks a determination returning him to his job, along with back pay from the date of his termination.NYCHH has not answered the petition but instead has moved to dismiss, pre-answer. It argues that it was rational to terminate petitioner from employment due to his placement on the SEL and that petitioner received due process. “On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nonnon v. City of New York, 9 NY3d 825, 827 [2007]; see Castro v. Schriro, 140 AD3d 644, 644 [1st Dept 2016] [applying the standard, without discussion, in an Article 78 proceeding], aff’d, 29 NY3d 1005 [2017]).Pursuant to this standard, the Court denies the cross-motion. Petitioner has quoted section 7.5.1 of NYCHH’s personnel rules, which requires that employees shall not be terminated without notice and an opportunity to be heard. Petitioner has not annexed a copy of either the handbook or the pages upon which he relies in his petition. The Court accepts petitioner’s quotation as accurate for the limited purpose of a pre-answer motion to dismiss. As such, there is an issue of fact as to whether petitioner was denied his procedural rights. This conclusion is bolstered by the fact that Social Serv. Law §495 (4), on which respondents rely for the proposition that petitioner was subject to immediate termination because he was on the SEL, also states that the agency still must follow the termination procedures that were established in its collective bargaining agreement.The Court rejects respondents’ position that Rule 4.4.4 overrides this procedural safeguard. For one thing, respondents do not annex or fully describe the rule in question. For another, according to respondents, the rule authorizes an employee’s termination under the facts at hand. Based on this description, it is not at all clear that the provision relieves respondents of the duty to provide the procedural safeguards they otherwise guarantee to their employees. In their future arguments, all parties must produce the documents on which they rely.The Court does not address the issue of whether, given petitioner’s settlement with the Justice Center and his removal from the SEL, respondents are required to reinstate him to his job with back pay. This issue is outside of the scope of the current proceeding. The Court further notes that it has considered all pertinent arguments in reaching its conclusion, regardless of whether they are expressly discussed in this decision.Accordingly, it isORDERED that the cross-motion is denied; it is furtherORDERED that respondents shall answer the petition within 30 days from the date of this decision and order and provide a courtesy copy to the Court at 80 Centre Street, Room 308, New York, New York, 10013; and it is furtherORDERED that petitioner shall submit any reply within 14 days from the date of service on petitioner of respondents’ answer and provide a courtesy copy to the Court at 80 Centre Street, Room 308, New York, New York, 10013; and it is furtherORDERED that this proceeding is adjourned to November 1, 2018 for the submission of these papers. At that point, the Court shall determine whether further argument is required.Dated: 2018
