The following papers were considered on plaintiff’s motion to preliminarily enjoin defendant from prosecuting disciplinary charges against him:Papers NumberedOrder to Show Cause, Affirmation, Exhibits 1-16, and Memorandum of Law 1Affirmation in Opposition, Exhibits A — C, Affidavit, and Memorandum of Law 2DECISION and ORDER Plaintiff Dennis Murray commenced this action against the Town of North Castle in Westchester County, New York, by summons and complaint filed October 30, 2017, seeking declaratory and injunctive relief and money damages. The crux of his claim is that since he retired effective October 4, 2016 from his position as a Detective Sergeant with defendant’s Police Department, defendant lacks the authority to proceed with the prosecution of the disciplinary charges first brought against him on October 10, 2016, after his effective retirement date. The position of defendant Town relies on New York State and Westchester County Civil Service rules that authorize a municipal employer to disregard an employee’s resignation when it is about to file disciplinary charges against the employee.BackgroundThe affidavit provided by defendant’s Chief of Police, Peter Simonsen, states that in late July 2016, he began conducting an internal investigation regarding alleged misconduct by various officers in his Department. Based on his preliminary investigation, on September 15, 2016, he began interviews of members of the Department. At the conclusion of the first day of interviews, he determined that plaintiff, among others, had engaged in serious misconduct in the course of his official duties, warranting disciplinary charges. The next day, September 16, 2016, Chief Simonsen issued a letter placing plaintiff on paid administrative leave; he could not be placed on unpaid leave, since under Town Law §155, a police officer may not be suspended without pay until formal disciplinary charges are preferred against the officer.Chief Simonsen also asserts that he had issued an order dated September 26, 2016 directing plaintiff to appear for questioning, but three attempts to serve plaintiff with this order were unsuccessful. While plaintiff was finally served with a letter dated September 30, 2016 directing him to appear for questioning, he did not appear on the designated date.Prior to issuance of that order, on September 19, 2016, plaintiff submitted his application for retirement to the New York State Comptroller, to be effective October 4, 2016. Defendant Town was not notified of this application until October 5, 2016, when it received a letter dated September 20, 2016, from the Comptroller’s Office for the New York State Police & Fire Retirement System (“NYSPFRS”), indicating that plaintiff had applied for retirement effective October 4, 2016.Defendant Town responded with an email from Joan Goldberg, the Town Administrator, stating“Please be advised the Town of North Castle is about to file disciplinary charges against this individual and the Town Board will determine whether to disregard his resignation for the purpose of retirement. At this time Dennis Murray will remain on the Town’s active payroll.”In a followup letter from the Comptroller’s Office and NYSPFRS dated October 4, 2016 and received by defendant on October 12, 2016, defendant was formally notified that plaintiff’s retirement from defendant’s police department was effective October 4, 2016.On or about October 11, 2016, plaintiff was served with disciplinary charges; on October 13, 2016 he was suspended without pay.The disciplinary charges were amended on May 21, 2018, over a year and a half later, and the amended charges were served on plaintiff on June 15, 2018. Plaintiff was sent a notice of hearing dated July 24, 2018, scheduling hearing dates beginning August 14, 2018.Plaintiff then brought the underlying proposed order to show cause on August 6, 2018, asking for a temporary restraining order preventing defendant Town from proceeding with the hearing. Following oral argument by both sides, this Court granted the temporary restraining order on August 7, 2018.Plaintiff contends that because he retired from his position before defendant brought disciplinary charges against him, defendant is precluded from bringing such charges. He argues that defendant’s goal and purpose is to deny him his contractual entitlements to family medical and dental coverage and lump sum payments for his accrued leave and a deferred compensation account, which are all part of the compensation he earned for his more than 25 years on defendant’s police force. In addition, he asserts, if defendant is permitted to proceed with the charges and ultimately “terminates” plaintiff’s employment, the termination will be retroactive to October 11, 2016, he will be denied his benefits and be required to pay back the benefits he has received as a retiree, and further, will be unable to obtain other employment.Defendant protests that plaintiff may not use retirement as a means to grant himself immunity from the disciplinary charges that he knew were about to be preferred against him. It argues that pursuant to the State and County Civil Service statutes and rules, it is entitled to proceed against him, not to challenge his retirement or his entitlement to benefits from his retirement system, the New York State Policemen’s and Firemen’s Retirement System (“NYSPFRS”), but to challenge his entitlement to benefits arising out of a collective bargaining agreement with the Town.Analysis“To establish entitlement to a preliminary injunction, a movant must demonstrate: (1) a likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; and (3) a balance of the equities in favor of granting the injunction” (Copart of Conn., Inc. v. Long Is. Auto Realty, LLC, 42 AD3d 420, 421 [2d Dept 2007], citing Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 [1990]).To demonstrate the likelihood that he will succeed on the merits in this matter, plaintiff points initially to the provisions of the Retirement and Social Security Law and the New York State Comptroller’s regulations, which establish that the State Comptroller has the sole and exclusive authority to determine applications for retirement under the NYSPFRS. Section 374(b) of the Retirement and Social Security Law, which specifically concerns the NYSPFRS, clearly provides that “[t]he comptroller shall have exclusive authority to determine all applications for any form of retirement or benefit provided for in this article” (id.; see also 2 NYCRR §341.1). Pursuant to these provisions, defendant has no authority to intervene in plaintiff’s retirement, which would appear to preclude a unilateral declaration that plaintiff, a retiree, remains on the Town’s active payroll.Plaintiff also relies on Pierne v. Valentine (291 NY 333 [1943]), in which the Court granted a writ of prohibition preventing disciplinary hearings from proceeding as against two petitioning police officers with the New York City Police Department, who had retired prior to any preferment of disciplinary charges, although they had already been the subjects of a grand jury investigation for official misconduct when they applied for retirement. When the officers were thereafter served with specifications and notice of a hearing date, they commenced the proceeding for orders prohibiting the New York City Police Commissioner from conducting the noticed hearing. The Court’s analysis focused on whether the officers’ retirement was accomplished by the mere act of submitting their applications to retire; it construed the language of the then-applicable New York City Administrative Code. It concluded that in enacting the Administrative Code provision as it then stood, the legislature had intended to leave unchanged the previous rule that where an applied-for retirement was based on service time alone, and where the controlling Code provision did not direct a reviewing board or officer to take affirmative steps to retire the applicant, then the retirement is accomplished by the mere act of the application for retirement (291 NY at 343, citing Matter of Rogalin v. New York City Teachers’ Retirement Bd., 290 NY 664 [1943]).Defendant correctly observes that unlike Pierne and similar cases, the present case does not involve the New York City Administrative Code. Nevertheless, implicitly underlying the analysis in Pierne is acceptance of the proposition that if an application for retirement is selfexecuting, then its effective date cannot be viably challenged, and as a result, the retired former employee is entitled to protection against disciplinary charges filed after that date. As stated in Flood v. Monaghan, “in the Pierne case, the police commissioner was attempting to try a person on charges which were not made until after a policeman had, through retirement, become a private individual and no longer a proper subject of charges” (201 Misc 560, 562 [Sup Ct NY County 1951]).While cases have permitted disciplinary prosecutions to proceed where charges were filed before or while the retirement application was pending (see e.g. Matter of Brooklyn Audit Co. v. Department of Taxation, 275 NY 284 [1937] ["resignation of the income tax examiner…during the pendency of charges…does not terminate the proceeding"]; Flood v. Monaghan, 201 Misc at 561 ["the right to automatic retirement…does not give a member immunity from a departmental disciplinary proceeding which was commenced while he was a member and which was pending when he retired" [emphasis added]), no cases have allowed a disciplinary proceeding to proceed although charges were not preferred until after the employee retired. In Borges v. McGuire (107 AD2d 492 [1st Dept 1985]), the First Department referred to cases “in which a disciplinary proceeding had been commenced against the civil service employee prior to his retirement,” and observed that “[t]he clear rule of these authorities is that an employee may not forestall the consequences of an adverse determination in properly commenced proceedings by retiring during their pendency. We discern no support in any of these authorities for the proposition that a disciplinary proceeding may be commenced after a person has retired from his civil service position” (107 AD2d at 498 [emphasis added]).Defendant’s main argument involves drawing a distinction between retirement and resignation; it correctly observes that the Retirement System and the Civil Service System function independently of each other. It then proposes that the rules regarding resignation survive retirement, and maintains that regardless of whether plaintiff is entitled to benefits under the Retirement System, his employment (and cessation of employment) with the Town is governed by the Civil Service Law and regulations, requiring his formal resignation as well as his retirement. Under the Westchester County Civil Service rules, defendant argues, plaintiff had an obligation to notify the Town of his intent to resign for the purposes of retirement, and in the absence of an effective resignation, his entry into the Retirement System did not trigger any benefits under the applicable collective bargaining agreement, and does not preclude the Town from proceeding with the disciplinary charges. Even if his retirement necessarily implicitly encompassed his resignation, defendant claims that it properly disregarded that resignation.The rules upon which the Town relies, promulgated by New York State’s Department of Civil Service, provide in part that “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation” (4 NYCRR §5.3[b]). The Civil Service Rules of Westchester County contain the same language as 4 NYCRR §5.3(b) (see Westchester County Civil Service Rule 17.2). Based on those rules, the Town contends that given the ongoing investigation in which charges were about to be preferred against plaintiff, it was entitled to disregard plaintiff’s resignation implicit in his retirement and to prosecute its disciplinary charges against him, as the Civil Service rules contemplate.Defendant’s argument requires the Court to adopt the view that an employee who retires does not necessarily also effectively resign. However, a person cannot both retire and remain employed at the job from which he or she retired (without invoking certain waivers or exceptions not applicable here). “It is beyond cavil that a person who retires from active service is no longer considered an employee” (Hartnett v. Lowery, 45 AD2d 170, 172 [1st Dept 1974]). Where an employee was permitted to retire, the Second Department held that the employer “was thereafter without jurisdiction to dismiss him” (Koegan v. Yunich, 51 AD2d 744 [2d Dept 1976] [citation omitted]).The Civil Service rules relied on by defendant evince the Legislature’s intention to allow employers to proceed with disciplinary charges, regardless of whether those charges were brought before the employee filed paperwork to leave his or her employment. However, in the absence of a similar provision in the law relating to retirement, the case law submitted to this Court tends to indicate that a successfully retired former employee may not be subjected to disciplinary proceedings based on charges that were filed after the employee’s retirement.Plaintiff has established that defendant has no authority to interfere in retirement applications, and that since his retirement was effective before disciplinary charges were brought against him, the cited case law supports his claim to prevent a hearing on charges of misconduct after his retirement. The authorities with which defendant counters fail to clearly establish the contrary, or to invalidate plaintiff’s arguments. Based on the parties’ presentations, the moving plaintiff has sufficiently established a likelihood of success on the merits.The requirement that the movant establish irreparable harm absent the injunction is sufficiently satisfied by the assertion that disciplinary findings are damaging to the subject, and if it is ultimately held that bringing such charges and making such findings are outside the Town’s authority, that damage would have been unnecessarily experienced in the absence of an injunction. As the Court of Appeals in Pierne observed, “the petitioners might suffer irreparable damages if they were compelled to defend themselves against the charges if, as matter of law, they are no longer members of the Police Department” (291 NY at 339).As to a balancing of the equities, while further delaying a hearing may be injurious to the Town’s ability to present evidence, given the potential for loss of memory or witnesses, it was defendant Town alone that delayed from October 2016 to August 2018. It cannot now be heard to argue that it is uniquely harmed by further delay caused by a preliminary injunction. In any event, a balancing of the equities here favors maintaining the status quo pending final determination of the legal issues presented (see Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942, 942 [2d Dept 2009]).Accordingly, it is herebyORDERED that the motion is granted, and it is furtherORDERED that pending the final determination of this action, defendant, its agents, employees and representatives are hereby preliminarily enjoined from commencing, continuing, and prosecuting any disciplinary action against plaintiff, including but not limited to the October 10, 2016 disciplinary charges as amended by the disciplinary charges dated May 21, 2018, and from conducting any hearing including but not limited to those set forth in the Notice of Disciplinary Hearing dated July 24, 2018, and it is furtherORDERED that the parties are directed to appear on Monday, December 3, 2018, at 9:30 a.m., in the Preliminary Conference Part, Westchester County Supreme Court, 111 Dr. Martin Luther King Boulevard, White Plains, New York.This Constitutes the Decision and Order of the Court.Dated: White Plains, New YorkOctober 12, 2018
