IN RE: the Application of Nicole PHILLIPS (2017)

I. UNDISPUTED PROCEDURAL BACKGROUND

In August 2013 respondent New York City Financial Information Services Agency (FISA) directed petitioner, a level 1 staff analyst for FISA, to submit to a physical and psychiatric examination to determine her fitness to perform her duties, due to her erratic behavior over the past two years. On September 4, 2013, Sue DeCotiis M.D., an internist, examined petitioner and found her unfit for duty because she was paranoid and delusional. On September 11, 2013, Alexander Sherman M.D., a psychiatrist, conducted an independent psychiatric evaluation of petitioner and found her severely impaired, in need of further evaluation and treatment, and therefore unfit for duty. Based on these examinations, FISA placed petitioner on unpaid leave September 24, 2013. Petitioner then demanded a hearing to review FISA's decision.

At the hearing before Administrative Law Judge (ALJ) Kevin Casey, FISA presented testimony by petitioner's co-workers describing her erratic behavior and by Dr. DeCotiis and Dr. Sherman regarding their medical examinations of petitioner. Petitioner testified on her own behalf, but presented no medical evidence of her own.

ALJ Casey made three determinations. (1) FISA and respondent New York City Department of Citywide Administrative Services (DCAS) lawfully delegated to a private entity DCAS's authority under the New York Civil Service Law to appoint the medical officers to conduct an examination of petitioner. (2) FISA had probable cause to place petitioner on involuntary leave because her bizarre behavior showed that she was a potential threat to other persons and might severely interfere with FISA's operations. (3) Petitioner was, at the time of the hearing, still unfit to perform her job duties and return to work.

On September 5, 2014, FISA notified petitioner in writing that FISA adopted ALJ Casey's recommendations and that she remained on leave, but was entitled to seek reinstatement within one year of the commencement of her leave September 24, 2013. Petitioner appealed this determination by FISA, which DCAS's Deputy Commissioner for Human Capital affirmed in full.

Petitioner now seeks an order pursuant to C.P.L.R. Article 78 annulling (1) DCAS's decision upholding FISA's placement of petitioner on pre-hearing and continuing leave, (2) FISA's determinations that she was unfit to work, (3) the termination of her employment, and (4) the selection of Dr. DeCotiis and Dr. Sherman as the medical officers to conduct examinations of petitioner. She also seeks a declaratory judgment that DCAS, by failing to recuse itself and to appoint an independent, unbiased adjudicator of her appeal from FISA's determination, violated her rights to due process. Respondents move to dismiss the petition because it fails to state a claim. C.P.L.R. § 3211(a)(7).

II. RESPONDENTS' MOTION TO DISMISS THE PETITION

When evaluating respondents' motion to dismiss the petition under C.P.L.R. § 3211(a)(7), the court must accept petitioner's allegations as true, liberally construe them, and draw all reasonable inferences in her favor. JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 (2015); Miglino v. Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 (2013); Lawrence v. Graubard Miller, 11 NY3d 588, 595 (2008); Drug Policy Alliance v. New York City Tax Commn., 131 AD3d 815, 816 (1st Dep't 2015). Dismissal is warranted only if the petition fails to allege facts that fit within any cognizable legal theory. Lawrence v. Graubard Miller, 11 NY3d at 595; Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 570–71 (2005); Mill Financial, LLC v. Gillett, 122 AD3d 98, 103 (1st Dep't 2014).

A. Petitioner's Claims That Respondents' Determinations Are Unsupported by Substantial Evidence

Petitioner's challenge against FISA's determination adopting ALJ Casey's decision based on a hearing pursuant to the Civil Service Law, rather than against ALJ Casey's decision itself, does not remove petitioner's claims from the ambit of C.P.L.R. 7803(4). Goldin v. Kelly, 77 AD3d 475, 476 (1st Dep't 2010); Williams v. Troiano, 129 AD3d 1601, 1603 (4th Dep't 2015). Thus judicial review of whether both FISA's and DCAS's determinations were supported by substantial evidence lies within the Appellate Division's jurisdiction. C.P.L.R. 7804(g); Braddock v. New York City Hous. Auth., 149 AD3d 579, 579 (1st Dep't 2017); Joseph Paul Winery, Inc. v. State of New York, 135 AD3d 639, 639 (1st Dep't 2016); Coleman v. Rhea, 104 AD3d 535, 536 (1st Dep't 2013); Gonzalez v. State of NY Off. of Temporary & Disability Assistance, 89 AD3d 547, 547 (1st Dep't 2011). This court may determine the petition, however, if the other objections raised dispose of the entire proceeding. C.P.L.R. 7804(g); Joseph Paul Winery, Inc. v. State of New York, 135 AD3d at 639; Dillin v. Waterfront Commn. of NY Harbor, 119 AD3d 429, 429 (1st Dep't 2014); G & G Shops, Inc. v. New York City Loft Bd., 193 AD2d 405, 405 (1st Dep't 1993); Putnam Companies v. Shah, 93 AD3d 1315, 1316 (4th Dep't 2012).

Petitioner may sustain her claim for annulment of FISA's and DCAS's determinations that, at the time of the hearing, she was currently unfit for duty, by showing that ALJ Casey's determination was not supported by substantial evidence. ALJ Casey held that petitioner was currently unfit to perform her job duties based on Dr. Sherman's testimony that she suffered from a mental disability, exhibited grossly impaired judgment, was severely impaired, and therefore was unfit for duty. This testimony, however, was based on Dr. Sherman's September 2013 examination. No evidence indicates that Dr. Sherman had examined her since then. Moreover, he further testified that his September diagnosis that petitioner was unfit for duty did not mean she would be unfit for duty in the future. Thus Dr. Sherman did not testify, because he had no basis to testify, that petitioner was still unfit as of the April 2014 hearing.

Nor do Dr. DeCotiis's report and testimony provide any evidence of petitioner's current unfitness in April 2014. Dr. DeCotiis specifically testified that she could not give an opinion on petitioner's current mental condition or fitness for duty because the doctor had not examined petitioner since September 2013.

ALJ Casey's reasoning that petitioner failed to present evidence that she had sought treatment or improved since the September 2013 examination impermissibly placed the burden on her to establish her fitness. NY Civ. Serv. Law § 72(1). The record now before the court thus presents no medical evidence that petitioner was unfit for duty as of the hearing. Therefore, until respondents' complete administrative record establishes to the contrary, now, when all inferences are drawn in her favor, she sustains her claim that ALJ Casey's determination of her current unfitness was unsupported by substantial evidence.

Similarly, petitioner's claim that FISA's probable cause to place petitioner on pre-hearing leave is unsupported by substantial evidence must be sustained, as the incomplete record does not show probable cause that petitioner posed a danger to other persons or would severely interfere with FISA's operations. NY Civ. Serv. Law § 72(5). ALJ Casey relied on Dr. Sherman's testimony that petitioner's behavior in September 2013 created a danger to other persons and was deteriorating, to give FISA probable cause, but this testimony is not in the record before the court. Even if the court relies on Dr. Sherman's and Dr. DeCotiis's initial September 2013 reports, which were the basis for FISA's placement of petitioner on pre-hearing leave, neither report concludes that petitioner is a danger to others or would severely interrupt FISA's operations. Therefore, when all inferences are drawn in her favor, petitioner sustains a claim that FISA lacked probable cause that she was a danger to other persons or would severely impair FISA's operations when FISA placed her on pre-hearing leave.

B. Petitioner's Procedural Claims

Petitioner also may sustain her claim for annulment of respondents' administrative determinations on the basis that 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.” C.P.L.R. § 7803(3). See 20 Fifth Ave., LLC v. New York State Div. of Hous. & Community Renewal, 109 AD3d 159, 163 (1st Dep't 2013); CRP/Extell Parcel I, L.P. v. Cuomo, 101 AD3d 473, 473 (1st Dep't 2012); Metropolitan Movers Assn., Inc. v. Liu, 95 AD3d 596, 598 (1st Dep't 2012); Langham Mansions, LLC v. New York State Div. of Hous. & Community Renewal, 76 AD3d 855, 857 (1st Dep't 2010). Under Civil Service Law § 75(1), FISA was required to issue a final determination regarding petitioner's placement on leave within 75 days after receipt of her request for review of the placement. On October 6, 2013, petitioner demanded a hearing, but FISA did not issue a final determination until 335 days later on September 5, 2014.

Respondents claim that, because petitioner consented to multiple adjournments of the hearing, FISA did not violate the requirement to conclude the review within 75 days. The record before the court, however, shows only petitioner's waiver of her right to a hearing within 30 days of her request for review. The verified petition alleges that petitioner did not waive her right to a determination within 75 days. At minimum, once the hearing concluded June 18, 2014, then the statute required a determination within 75 days later. Again, when all inferences are drawn in her favor, petitioner states a claim that respondents violated Civil Service Law § 75(1).

Petitioner further claims that Dr. DeCotiis's and Dr. Sherman's examinations must be annulled because the Civil Service Law § 72(1) required FISA itself to select the medical officers to conduct the examinations, which FISA violated by delegating this responsibility to a private entity. ALJ Casey upheld respondents' delegation based on the testimony by DCAS's Director of Operations that DCAS selected vendor JurisSolutions to provide medical officers and that DCAS set the criteria for the selection of physicians and reserved the right to bar the vendor's selections from performing examinations. Again, this testimony and the accompanying exhibits introduced at the hearing are not part of the record before the court.

ALJ Casey further reasoned that JurisSolutions was comparable to the medical groups and hospitals with which DCAS contracts for services under New York City Charter § 311(b)(4)(c). This City Charter provision, however, only requires the Procurement Policy Board to promulgate rules regarding the procurement of services necessary to obtain special expertise. The provision itself does not permit such procurement. The record here includes no evidence that respondents complied with the Procurement Policy Board's rules regarding procurement of services or with New York City Charter § 312, which establishes rules for City agencies' procurement of services. In the absence of this evidence, respondents present no basis to dismiss petitioner's claim regarding selection of the medical officers.

On the other hand, petitioner presents no basis to sustain her final claim, that DCAS was required to recuse itself from determining her appeal of FISA's determination because DCAS's review of its own procedures was inherently biased. Petitioner may not, simply by challenging an internal procedure that DCAS developed for selecting physicians to conduct medical examinations, disqualify DCAS from determining her appeal of FISA's determination, absent evidence of pecuniary or personal interest, personal bias, or personal prejudice. New York State Assn. of Criminal Defense Lawyers v. Kaye, 95 NY2d 556, 560–61 (2000). DCAS's adoption of a procedure in the exercise of its administrative functions does not warrant its disqualification from determining the validity of the procedure in its adjudicatory capacity, because the adoption of the procedure is not a predetermination of the procedure's validity, and in any event DCAS is capable of reevaluating its own procedure. Id. To hold otherwise would empower petitioner to frustrate DCAS's adjudication by any challenge to its own actions. Id. at 560.

Petitioner also claims that FISA First Deputy Executive Director Myers was required to recuse herself because she admitted participating in meetings regarding petitioner's behavior, but the court may not consider this issue when petitioner failed to raise it in the administrative proceedings. Basnight v. New York City Hous. Auth., 132 AD3d 549, 550 (1st Dep't 2015); Bluebird Realty Corp. v. Department of Envtl. Protection of City of NY, 300 AD2d 6, 7 (1st Dep't 2002); Rozmae Realty v. State Div. of Hous. & Community Renewal, Off. of Rent Admin., 160 AD2d 343, 343 (1st Dep't 1990). Even if the court considered this claim, Myers's involvement in the disciplinary process again is an insufficient basis for recusal. Petitioner nowhere alleges, and no evidence indicates, that Myers prejudged the appeal or even that she was extensively involved in disciplining petitioner. Ortega v. Kelly, 15 AD3d 313, 314 (1st Dep't 2005); Birch v. County of Madison, 123 AD3d 1324, 1325–26 (3d Dep't 2014); Botsford v. Bertoni, 112 AD3d 1266, 1268–69 (3d Dep't 2013).

III. CONCLUSION

For all the reasons explained above, the court grants respondents' motion to dismiss petitioner's claims seeking a declaration that either DCAS or FISA violated her rights to due process when the agency failed to recuse itself, but denies the remainder of respondents' motion. C.P.L.R. § 3211(a)(7). Within 30 days after service of this order with notice of entry, respondents shall serve and file an answer to the petition accompanied by the complete administrative record. See C.P.L.R. §§ 3012(a), 3211(f), 7804(c)-(f). Within 20 days after service of the answer, petitioner shall serve and file any reply to the answer and serve and file a new notice of hearing of the petition in Part 34, Room 308, 80 Centre Street, New York County. C.P.L.R. §§ 3012(a), 7804(c), (d), and (f). If the petition may not be resolved without addressing the substantial evidence questions raised, the proceeding must be transferred to the Appellate Division. C.P.L.R. §§ 7803(4), 7804(g).

Lucy Billings, J.