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Gerwer v. Kelly

Supreme Court, New York County

August 15, 2013

Stephen Gerwer, Petitioner,
v.
Raymond W. Kelly as Police Commissioner of the City of New York, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Respondents.

Unpublished Opinion

Petitioner represented by: Cohen & Fitch, LLP, by Joshua P. Fitch, Esq. and Robert W. Georges, Esq., of counsel.

Respondent represented by: Michael A. Cardozo, Corporation Counsel of the City of New York, by Benjamin J. Traverse, Esq., Assistant Corporation Counsel.

SHLOMO S. HAGLER, J.

Petitioner Stephen Gerwer ("Petitioner" or "Gerwer") moves by Order to Show Cause and Verified Petition, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), seeking a judgment (1) reviewing the determination dated June 27, 2012 by respondents Raymond W. Kelly, as Police Commissioner of The City of New York, The Police Department of the City of New York, and The City of New York's (collectively, "respondents") wherein they dismissed petitioner as a police officer in the Police Department of the City of New York retroactive to May 14, 2012 (See Exhibit "M" to the Verified Petition), (2) directing respondents to reinstate petitioner as a police officer with full benefits and (3) ordering a departmental hearing on the issue of the appropriate discipline. In lieu of an answer, respondents cross-move for an order pursuant to CPLR § 7804(f) and § 3211(a)(7) dismissing the Verified Petition on the ground that it fails to state a cause of action. Petitioner opposes the cross-motion.

BACKGROUND

In 1993, petitioner was appointed as a police officer for the New York City Police Department ("NYPD"). For all of his nineteen year career, petitioner was assigned to the 122nd Precinct in Staten Island.

Petitioner alleges that respondents instituted an "illegal summons/ticket quota" compelling police officers at the 122nd Precinct to issue a minimum of fifteen summonses per shift. Petitioner alleges that if the police officers did not comply with said quota, they would be severely disciplined and punished with loss of valuable overtime pay and/or transferred to a less desirable and more distant precinct from their residences.

Petitioner alleges that this quota system forced him and his fellow officers to make difficult choices as follows:

(1) issue summonses to innocent people who may wrongly incur fines and points on their licenses, (2) record fake summonses to appear as though they were issued but would not harm innocent people, or (3) not issue the required summonses and be unjustly disciplined. Petitioner chose the second option because he did not want to harm innocent people and wrote thirty-seven fictitious summonses while on duty between May 5 and May 20, 2010.

In or about February, 2011, petitioner was charged with thirty-seven felony and misdemeanor counts of Penal Law § 175.25 (Tampering with Public Records in the 1st Degree), § 175.35 (Offering a False Instrument in the 1st Degree), § 175.05 (1) (Falsifying Business Records in the 2nd Degree), and § 195.00(1) (Official Misconduct). (See Exhibit "K" to the Verified Petition). On May 14, 2012, petitioner pled guilty to three misdemeanor counts of Falsifying Business Records in the 2nd Degree under Penal Law § 175.05 (1). As a result, by letter dated June 27, 2012, respondent dismissed petitioner as a NYPD police officer retroactive to the date of his conviction on May 14, 2012, pursuant to Public Officers Law § 30(1)(e). [1]

Standard for Article 78 Proceedings

The standard to review an administrative determination that was not made as a result of a formal hearing, such as the challenged determination of June 27, 2012, is set forth in CPLR § 7803. The scope is limited to "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed (emphasis added)." CPLR § 7803.3. A court may not disturb an administrative determination unless there is no rational basis for it in the record or the action is arbitrary or capricious . (Matter of Pell v. Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222 [1974]). The arbitrary and capricious test ...


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