IN RE: ROSABEL ANTONETTI (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously annulled on the law without costs to the extent that it terminated petitioner from her employment, the petition is granted to the extent that petitioner is reinstated to her position with back pay, less any unemployment benefits received, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: In this CPLR article 78 proceeding transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks to annul a determination made by respondent Dr. Lesli Myers-Small, in her capacity as an officer of the City of Rochester Police Accountability Board, after a hearing conducted by a Hearing Officer, respondent Dr. Shirley Green, in her capacity as an officer of the City of Rochester (HO). The determination adopted the findings of fact and recommendation of the HO, found petitioner guilty of misconduct and incompetence, and terminated her employment with respondent City of Rochester Police Accountability Board. Petitioner also seeks review of determinations by respondent City of Rochester (City) with respect to her administrative appeals from the City's responses to her requests for documents pursuant to the Freedom of Information Law (FOIL).

Petitioner contends that a number of her FOIL requests were improperly denied and that the City provided inadequate responses and redacted materials without proper justification. There is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt by articulating a particularized and specific justification (see Matter of Aron Law PLLC v Rochester City Sch. Dist., 236 AD3d 1398, 1399 [4th Dept 2025]; Matter of Nix v New York State Div. of Criminal Justice Servs., 167 AD3d 1524, 1525 [4th Dept 2018], lv denied 33 NY3d 908 [2019]). Because the record before us is insufficient to enable us to determine whether a legitimate basis existed for the City's responses to those portions of petitioner's requests, we remit the matter to Supreme Court for in camera review of the requested items and a determination as to the merits of petitioner's FOIL claims (see CPLR 7804 [g]; see also Matter of Gomez v Fischer, 74 AD3d 1399, 1402 [3d Dept 2010], lv dismissed 15 NY3d 858 [2010]).

Petitioner further contends that respondents failed to comply with Civil Service Law § 75 (2) and, thus, lacked jurisdiction to discipline her. We agree. Section 75 (2) provides, in pertinent part, that a hearing on charges preferred against an employee “shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.” “In the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, 387 [1983]; see Matter of Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d 1093, 1094 [3d Dept 2012], appeal dismissed & lv dismissed 19 NY3d 917 [2012]; Matter of Payton v Buffalo City School Dist., 299 AD2d 825, 826 [4th Dept 2002]). There is no evidence in the record of a written delegation by “the officer or body having the power to remove” petitioner, authorizing the HO to conduct petitioner's hearing (Civil Service Law § 75 [2]). We therefore annul the determination of Myers-Small terminating petitioner from her employment and grant the petition in part by reinstating petitioner to her position and awarding her back pay, less any unemployment benefits received, without prejudice to further proceedings against petitioner (see Payton, 299 AD2d at 826).

We further agree with petitioner that Myers-Small should have recused herself from reviewing the HO's recommendations after the disciplinary hearing and making the final determination whether to terminate petitioner. “[W]hen an officer institutes charges of misconduct and testifies at the ensuing hearing, that officer, in the interest of fairness, must disqualify [themselves] from reviewing the Hearing Officer's recommendations and rendering a final determination” (Matter of Morgan v Warren County, 191 AD3d 1129, 1131 [3d Dept 2021] [internal quotation marks omitted]; see Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210, 1214 [3d Dept 2014]; Matter of DiMattina v LaBua, 262 AD2d 409, 410 [2d Dept 1999]). Here, Myers-Small initiated the disciplinary charges against petitioner, appointed the HO to conduct petitioner's disciplinary hearing, and testified at petitioner's hearing. Additionally, it is clear from a review of the HO's decision that Myers-Small's testimony was relied upon and credited by the HO in sustaining the charges against petitioner. Under those circumstances, disqualification was required (see Morgan, 191 AD3d at 1131; Zlotnick, 122 AD3d at 1213-1215).

In light of our determination, we do not address petitioner's remaining contentions.

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court