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PRELIMINARY STATEMENT

The only issue considered by the Trial Court below was whether the Respondent-Appellants were arbitrary and capricious, or abused their discretion, when they determined to go forward with a Police Disciplinary Hearing in absentia against Petitioner-Respondent. In its evaluation of this issue, the Trial Court considered the two reasons given by the Police Department Trial Commissioner in the report of his determination that Petitioner-Respondent was without good cause for failing to appear at the hearing (R49-53). The two reasons given by the Police Department Trial Commissioner, and considered by the Trial Court, are the following:

1) The Respondent-Appellants were diligent in their efforts to notify Petitioner-Respondent of the charges against him;

2) Because the Petitioner-Respondent’s vested retirement from the Police Department was effective as of April 5, 2006, a trial regarding charges against Petitioner-Respondent needed to be commenced immediately.

The Trial Court decided this issue as follows:

1) The Respondent-Appellants were not diligent in their efforts to notify Petitioner-Respondent of the charges against, him, and therefore, his failure to appear at his Police Disciplinary Hearing was for good cause, and

2) The Trial Commissioner’s determination that a trial needed to be commenced immediately because Petitioner-Respondent was on the verge of retirement was conclusory, and thus, did not constitute good cause for commencing the trial in Petitioner-Respondent’s absence.

The Trial Court correctly determined that Respondent-Appellants failed to exercise due diligence in their efforts to serve Petitioner-Respondent with notice of the charges against him, and that the fact of Petitioner-Respondent’s imminent retirement was not sufficient to relieve Respondent-Appellants of their burden to serve Petitioner-Respondent with charges in a manner reasonably calculated to achieve actual notice. The Trial Court held that Petitioner-Respondent was “denied due process,” that the Respondent-Appellants’ “final determination is arbitrary and capricious and without sound basis in reason,” and that the final determination of Respondent-Appellants “is without a rational basis in the record.” (R15-16). For all of the reasons that follow, the decision of the Trial Court should be upheld.

COUNTER-STATEMENT OF QUESTIONS PRESENTED

  1. The Question of whether “the hearing commissioner’s determinations that petitioner was guilty of specifications 1,2,5,6,7,9, and 10 (are) supported by substantial evidence,” posited as Question Number Two in Respondent-Appellants’ Brief (B2), was not reached by the court below (B44, R16), and thus, is not before this Honorable Court.
  2. If the decision of the court below, which held that Respondent-Appellant failed to notify Petitioner-Respondent of the charges against him, improperly conducted a trial against him in absentia, and rendered a decision against him terminating his employment and his eligibility for a pension that is arbitrary and capricious, without sound basis in reason, and without a rational basis in the record, is upheld, did Petitioner-Respondent’s vested interest pension vest automatically on April 5, 2006, by operation of law, thereby rendering any further proceedings moot?

ARGUMENT

Point One

Respondent-Appellants Failed To Exercise Due Diligence

And Failed To Serve Petitioner-Respondent With Charges

In A Manner Reasonably Calculated To Achieve Actual Notice

 

  1. In a Police Department Disciplinary Proceeding, the Accused is entitled to Notice of the Disciplinary Matters to be Adjudicated

The Court below correctly noted,

“An individual facing professional misconduct proceedings is entitled to notice of the charges and an opportunity to respond.”

Ackerman v. Ambach, 142 A.D.2d 842, at 843 (Third Dept. 1988).

The subject of a disciplinary proceeding must be afforded reasonable notice and an opportunity to be heard,

Jacoby v. NYS Board for Professional Medical Conduct, 295 A.D.2d 655 at 656 (Third Department 2002).

This formulation is derived from the standard first articulated by the United States Supreme Court, and later adopted by the New York State Court of Appeals:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950),cited by the Court of Appeals: Silverstein v. Minkin, 49 N.Y.2d 260, 263 (1980).

  1. In Any Matter Where the Authority of the Government Over an Individual is to be Asserted, Said Individual Should Be Provided With Personal Notice Unless Impractical

The Court of Appeals has established the general rule regarding notice:

Whenever it is necessary to determine whether jurisdiction has been obtained over a defendant in an action by service of the summons in some way other than by personal service thereof, it must be remembered that the general rule in regard to the service of process, established by centuries of precedent, is that process must be served personally within the jurisdiction of the court upon the person to be affected thereby.

*        *        *

Substituted service when provided by statute is in derogation of such general rule, and, consequently, the directions thereof must be strictly construed and fully carried out to confer any jurisdiction upon the court.

Erickson v. Macy, 231 N.Y. 86, at 90-91 (1921).

  1. The Duty of the Police Department to Provide Petitioner-Respondent With Notice of the Disciplinary Charges Against Him is Governed By Statute and Department Procedure

As conceded by Commissioner Vinal, who presided over Petitioner-Respondent’s trial in absentia, the Police Department Trial Room is governed by Title 38, Chapter 15 of the Rules of the City of New York (RCNY), and its notice obligation by Section 15-03 thereof (R173). The relevant portions of RCNY Section 1503 are as follows:

Section 15-03(a): Charges and Specifications.

Charges and Specifications shall be served upon the Respondent and shall include a brief statement of the disciplinary matters to be adjudicated, including the activity, behavior or incident which is the subject of the disciplinary action and, where appropriate, the date, time and place of occurrence. Additionally, the Charges and Specifications shall indentify the contract provision, law, policy, regulation or rule that was allegedly violated. Charges and Specifications may be amended upon notice to all parties.

Section 15-03(b): Service of Charges and Specifications

(1) The Department shall be responsible for serving the Respondent with Charges and Specifications. The Charges and Specifications shall be accompanied by notice of the Respondent’s right to reply and the time limits within which to do so pursuant to subdivision (c ) of this section, and the requirement that the individual representing the Respondent shall file a Notice of Appearance with the Deputy Commissioner of Trials, prior to engaging in any act of representation.

(2) Service of the Charges and Specifications shall be made pursuant to statute, rule, contract, or other provision of law applicable to the proceeding being initiated. Absent any such applicable law, service of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the Respondent. Service by certified mail, to the Respondent’s last address known to the Department, shall be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service shall be required.

Consistent with the provisions of RCNY Section 15-03(2), the Police Department has promulgated its own rules for the service of its Charges and Specifications, which can be found at Procedure Number 206-06 of the NYPD Patrol Guide. The relevant provisions of said procedure state the following:

Procedure No. 201-06, Subdivision 2:

Serve original and copy of Charges and Specifications upon member of the service.

  1. If personal service cannot (emphasis in original) be made, see “Additional Data” below.

*        *        *

Additional Data:

If personal service of the charges cannot be made, service may be affected:

  1. By mailing the Charges and Specifications to the person to be served at his last known residence by registered or certified mail, return receipt requested, or delivering the Charges and Specifications to a person of suitable age and discretion at his place of business, dwelling or usual place of abode of the person to be served (sic).

(b) By delivering a copy of the Charges and Specifications to the agent of the person to be served.

(c ) Where service under subdivisions “a” and “b” cannot be made, affix Charges and Specifications either to the door of the actual place of business, dwelling or usual place of abode, of the person to be served and by mailing (registered or certified, return receipt requested) the Charges and Specifications to the person at his last known residence.

(d) In such manner as the Deputy Commissioner-Trials directs, upon motion without notice, if service is impractical under subdivisions “a,” ”b,” or “c.”

  1. The Respondent-Appellants Failed to Comply With Either the Rules of the City of New York, or the Patrol Guide of the NYPD, Regarding Notice to Petitioner-Respondent
  1. The Respondent-Appellants Failed To Make Reasonable Attempts at Personal Service on Petitioner-Respondent

 The Respondent-Appellants claims that on January 13, 2004, the NYPD Internal Affairs Bureau received allegations of misconduct by Petitioner-Respondent. On June 8, 2005, November 10, 2005, and March 2, 2006, Petitioner-Respondent was the subject of “Official Departmental Interviews” stemming from an “ongoing” Internal Affairs Bureau investigation (R108). However, Respondent-Appellants did not prefer any charges against Petitioner-Respondent until March 10, 2006 (R100, Paragraph 27).

The Respondent-Appellants concede in their Verified Answer that, on March 6, 2006, Petitioner-Respondent submitted seven (7) Leave of Absence Report forms, also known as leave requests, which are pre-printed forms provided by the Police Department. Said leave reports “requested permission to take leave effective March 8, 2006 at 0700 hours until April 15, 2006 at 1510 hours (R26, Paragraph 23; R99 Paragraph 23). On the back of each of the seven leave requests, there is a section provided with the rubric “Location During Absence.” In said space, on each of six of the seven leave requests, Petitioner-Respondent wrote the following address: “Dante 863 Surquino Lima, Peru (R27, Paragraph 25; R99, Paragraph 25; R109 Paragraph 88). Petitioner-Respondent’s seven leave requests were submitted to his command and were approved by them (R26, Paragraph 24; R99, Paragraph 24; R107 Paragraph 81). The seven Leave of Absence Reports submitted were approved by his superiors notwithstanding the fact that Petitioner-Respondent had neglected to provide entries in a section of the reports which contains the rubric “Addresses where applicant can be communicated with during absence,” and another section which contains the rubric “Telephone numbers” (R109, Paragraph 89).

The Respondent-Appellants further concede in their Verified Answer that on March 6, 2006, “Petitioner-Respondent submitted an application to the NYPD’s Pension Section to discontinue his police service with a vested interest (“vested retirement”) (R99, Paragraph 21). Petitioner-Respondent’s application to discontinue his police service with a vested interest was approved by the Police Department (R99, Paragraph 24).

The Respondent-Appellants further concede in their Verified Answer that on March 6, 2006, when Petitioner-Respondent requested the above mentioned leave, no charges had been preferred against, or served upon him (R98, Paragraphs 19 & 20; R107, Paragraphs 78 & 80).

The Respondent-Appellants further concede it their Verified Answer that on March 7, 2006, Petitioner-Respondent departed John F. Kennedy International Airport for Lima, Peru (R99, Paragraph 26; R109 Paragraph 90). As of March 10, 2006, Respondent-Appellants was aware that Petitioner-Respondent had left the United States (R105, Paragraph 64; R110, Paragraph 94).

Thus, as of March 10, 2006, Respondent-Appellants were aware that:

  1. a) Petitioner-Respondent had flown to another continent, and
  2. b) Had provided written notice, received and approved by Respondent-Appellants, that he would be at a specific address in Lima Peru from March 8, 2006, through April 15, 2006.
  3. Respondent-Appellants failed to delay or deny Petitioner-Respondent’s Request for Leave, pending personal service of Charges and Specifications

 Clearly, on March 6, 2006, when the Respondent-Appellants approved both Petitioner-Respondent’s request for a leave of absence, with notice that he would be in Lima, Peru during his absence, and his request to discontinue police service with a vested interest, they were aware that Petitioner-Respondent had been investigated by the Internal Affairs Bureau for over two (2) years. Respondent-Appellants had the means to delay Petitioner-Respondent’s leave and application for retirement sufficiently to prefer Charges and Specifications, and affect personal service thereof. Respondent-Appellants simply failed to do so.

  1. Respondent-Appellants’ attempts to serve Petitioner-Respondent at his residence in Queens were not reasonably calculated to provide him with actual notice

On March 6, 2010, Petitioner-Respondent provided written notice to Respondent-Appellants of where he would be in Lima, Peru from March 8, 2006, through April 15, 2006. This notice was provided on Police Department forms which were accepted and approved by his superiors at his command (R99). As of March 10, 2006, Respondent-Appellants were aware that Petitioner-Respondent had left the United States (R105, Paragraph 64; R110, Paragraph 94). Nonetheless, Respondent-Appellants had an investigator visit two (2) addresses located in Queens, New York, believing one or both of them to be Petitioner-Respondent’s residence, purportedly to attempt personal service on Petitioner-Respondent thereat, on the following dates: March 10, 13, 14, 15, 16, and 17, 2006 (R109, R169-170, R351). Additionally, Respondent-Appellants sent an investigator to Petitioner-Respondent’s former command, also located in the City of New York, on March 10, and 13, 2006 (R109, R170). Not surprisingly, Respondent-Appellants’ investigator did not encounter Petitioner-Respondent at any of the New York City locations on any of the dates he visited, because Petitioner-Respondent was in Lima Peru, as he told them on six of his Leave of Absence Reports.

Respondent-Appellants’ efforts to serve notice on Petitioner-Respondent at his residence and former place of business in the City of New York were cynical and perfunctory because it was well known that Petitioner-Respondent could not be found there. Thus, the efforts described were not reasonably calculated to provide Petitioner-Respondent with actual notice of the Charges and Specifications against him.

  1. Respondent-Appellants had the means to affect personal service of Charges and Specifications on Petitioner-Respondent at the address provided in Lima, Peru

In its Verified Answer, Respondent-Appellants concede that, on March 10, 2006, the NYPD contacted the U.S. State Department to “solicit their assistance in effectuating personal service of a copy of the Charges and Specifications upon Petitioner-Respondent, at the address in Peru which he listed on the back of his leave request” (R100, Paragraph 30).

On March 14, 2006, during a pre-trial conference, Harry Peters, Esq., an attorney assigned to the NYPD Advocates Office, represented to the NYPD Trial Commissioner that on March 12, 2006, at the behest of the NYPD Internal Affairs Bureau (IAB), Special Agents of the United States State Department visited the address provided by Petitioner-Respondent on his Leave of Absence Reports (R171, L16 – R172, L9). According to Mr. Peters, Special Agent Conisoitu informed Lieutenant Crissalli of the NYPD Internal Affairs Bureau, who presumably informed Mr. Peters, that agents visited the location and attempted to make a notification to Petitioner-Respondent, but were unable to do so (R172, L2 – 9).

On March 14, 2006, Mr. Peters further represented that, “the State Department did go out there, the State Department was prepared with all the information. We had told them to notify the Respondent-Appellants to contact his attorney, the Department Advocate’s Office. In fact they notified him that he should be back here at a minimum for what we thought might be March 20 for trial, but for the 14th for sure, to come in and set

a trial date” (R203, L5-15).[1]

In its Verified Answer, Respondent-Appellants allege that the address provided by Petitioner-Respondent on his Leave of Absence Reports was a “barbershop, not a residence, and that no one at the barbershop knew anyone named Redacted” (R105, Paragraph 65; R110, Paragraph 94). On March 14, 2006, Mr. Peters represented that, when agents of the State Department visited the address provided by Petitioner-Respondent, “they checked out that address. It is actually a valid address, except it is not a residence, it is a barber shop” (R156, L21-24). On March 20, 2006, before the start of Petitioner-Respondent’s trial in absentia, Mr. Peters further represented that, “when the State Department sent out Special Agents to the address in Lima, Peru, it was indicated to them that they do not know anyone by the name of Redacted Redacted” (R353, L6-11).

Notwithstanding Respondent-Appellants’ assertion that the address provided by Petitioner-Respondent was a “barbershop, not a residence,” in its Verified Answer, Respondent-Appellants denied “knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “69” of the petition” (R106, Paragraph 69). In paragraph 69 of the Verified Petition, Petitioner-Respondent states, “upon information and belief, Petitioner had leased an apartment at the address Dante 863 Surquino, Lima Peru, which was located on the second floor above the barbershop where the Regional Security Officer (representative of the United States Department of State) purportedly attempted to reach the Petitioner” (R35, Paragraph 69). This point was noted by the Trial Court below, who stated in her decision, “Respondents do not deny that a residential apartment is located on the second floor above the barbershop where, according to the petition, Redacted had taken a lease over his vacation (Verified Petition, P.69) (R13).

Thus, Respondent-Appellants had the means to affect personal service upon Petitioner-Respondent at the one place where they were actually likely to encounter him, at the address he provided in Lima, Peru.

  1. Respondent-Appellants failed to make reasonable attempts to affect personal service of Charges and Specifications at the address provided by Petitioner-Respondent in Lima, Peru

The Respondent-Appellants do not claim that the agents of the Department of State were provided with copies of the Charges and Specifications, nor that they were asked to attempt to serve Petitioner-Respondent at his Lima, Peru address. Actually, it’s hard to know what was asked of the Department of State, or what exactly they did, because the Respondent-Appellants have not provided any affidavits from the agents themselves who attempted to visit Petitioner-Respondent. In fact, the only information provided regarding the agents or their visit constitutes, at a minimum, triple hearsay: From Special Agent Conisoitu to Lieutenant Crisalli of the Internal Affairs Bureau (IAB), from IAB to Mr. Peters, and from Mr. Peters into the record (R172). This remains true, notwithstanding the fact that Mr. Peters was specifically instructed, by the Trial Commissioner, on March 20, 2006, “that it would behoove the record if you could have someone from Group 27 (IAB) get a letter from that Special Agent with regard to what the State Department agents did” (R356, L11-15).

What can be ascertained, giving fair faith and credit to the record as it is, is that the agents paid one visit to the address provided by Petitioner-Respondent, determined that it was a valid address but not a residence, and that no one at the time of their visit had heard of Petitioner-Respondent. The agents then gave up. There is nothing in the record, whether hearsay, or otherwise, explaining the depth or extent of their efforts to ascertain whether there was a residence, or temporary domicile associated with the address, or whether any portion of the premises had recently been rented or was being occupied by someone from out of town. In fact, there is nothing provided from the agents describing the edifice, whether multi-storied, or otherwise.

As for what was requested of the State Department: In its Verified Answer, in the representations made by Mr. Peters, and in its Brief, Respondent-Appellants allege only that the Agents “went to the location prepared to notify Petitioner-Respondent that he was to contact his attorney, that he was to contact the Department Advocate’s Office, and that he was to return for a trial date” (B10, 48). There is nothing in the record to indicate the Agents were provided with a copy of the Charges and Specifications, or a description of Petitioner-Respondent, or in any other way were equipped to affect actual notice upon Petitioner-Respondent.

In its brief, Respondent-Appellants attempt to gloss over their lack of Due Diligence by belatedly challenging the existence of an apartment above the barbershop at the Lima Peru address. First, Respondent-Appellants claim that the court below “improperly relied on Petitioner-Respondent’s leasing assertion in paragraph 69 (of his Verified Petition) because on its face it was legally insufficient” (B51). The reason given for this alleged legal insufficiency is that the assertion is “upon information and belief” (B51).

However, it is respectfully pointed out, that out of eighty-one (81) numbered paragraphs in Petitioner-Respondent’s Verified Petition, thirty-two (32), or over one-third, contain the verbiage “upon information and belief.” Further, at the end of the Verified Petition, there is a Verification, signed by Petitioner-Respondent, and notarized by his then attorney, which states:

I, REDACTED REDACTED, am the Petitioner in the above entitled action. I have read the foregoing petition and know the contents thereof. The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

Paragraph 69 of Petitioner-Respondent’s Verified Petition states:

Upon information and belief, Petitioner-Respondent had leased an apartment at the address Dante 863 Surquino, Lima Peru, which was located on the second floor above the barbershop where the Regional Security Officer purportedly attempted to reach the Petitioner-Respondent.

Clearly, paragraph 69 of Petitioner-Respondent’s Verified Petition is a statement of fact, provided by Petitioner-Respondent, and verified by him. The words “upon information and belief” are redundant, meaningless verbiage absent-mindedly inserted by the draftsman of the petition. After failing to deny this statement of fact in its answer, and failing to otherwise challenge it during the litigation before the court below, Respondent-Appellants now demand a hyper-technical interpretation of the rules of drafting as a means of deflecting attention away from the inadequacy of its efforts to serve notice upon the Petitioner-Respondent when they sent agents of the Department of State to Petitioner-Respondent’s Lima, Peru address.

Respondent-Appellants persist in their effort to deflect attention away from their lack of Due Diligence by claiming that paragraph 69 of Petitioner-Respondent’s Verified Petition, asserting the existence of an apartment at the Lima, Peru address, should be disregarded because Petitioner-Respondent merely verified the assertions drafted by his attorney, rather than independently drafting his own affidavit providing proof of the existence of his lease. This effort is disingenuous because Respondent-Appellants lack affidavits providing evidence of their own efforts at the Lima, Peru address.

The court below correctly held that, “Respondents’ hasty attempt to send an agent to Redacted’s location in Lima where they claim to have found no more than a barbershop and quickly gave up, does not rise to the level of due diligence such as would satisfy traditional notions of fair play and substantial justice” (R15, citing Milliken v Meyer, 311 U.S. 457). (See also Spath v. Zack, 36 A.D.3d 410, 412-413 [1st Dept. 2007], in which attempted service was deemed insufficient to satisfy the due diligence requirement where the process server made three attempts to affect personal service on the defendant, but did not make any attempts on a weekend, and did not make any inquiries to ascertain defendant’s whereabouts).

Thus, Respondent-Appellants failed to attempt to affect personal service upon Petitioner-Respondent at the one place where they were actually likely to encounter him, at the address he provided in Lima, Peru.

  1. Assuming but not Conceding that Respondent-Appellants Made Reasonable Attempts at Personal Service on Petitioner-Respondent, and that Personal Service was Impractical,   Nonetheless, Respondent-Appellants Failed to Meet the Requirements of Substitute Service

As stated above, if personal service cannot be made, the NYPD Patrol Guide, Procedure 206-06, provides several means of substituted service. While not as stringent, the substituted service provisions of the NYPD Patrol Guide closely mimic the provisions of CPLR Section 308, thus guidance as to the proper application of the provisions can be found there. However, notwithstanding the less stringent requirements of the Patrol Guide provisions, the force of the underlying rules, provided by the U.S. Supreme Court, and the N.Y.S. Court of Appeals, remains unabated, to wit:

  1. a) Notice must be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Mullane v. Central Hanover, 339 U.S. 306, 314[1950], and Silverstein v. Minkin, 49 N.Y.2d 260 [1980]), and
  2. b) Substituted service, when provided by statute is in derogation of (the) general rule (that process must be served personally), and consequently, the directions thereof must be strictly construed and fully carried out to confer any jurisdiction upon the court (Erickson v. Macy, 231 N.Y. 86, at 90-91 [1921]).

For the reasons that follow, as to all the means of substituted service employed by the Respondent-Appellants against Petitioner-Respondent, none were reasonably calculated, under the circumstances of this case, to apprise Petitioner-Respondent of the Charges and Specifications against him, and afford him an opportunity to present his objections, and the directions were not fully carried out such that jurisdiction over Petitioner-Respondent was conferred upon the NYPD Trial Commissioner.

  1. The Respondent-Appellants’ Efforts to Mail Copies of the Charges and Specifications to Petitioner-Respondent’s Last Known Residence Were Not Reasonably Calculated To Provide Actual Notice

Pursuant to Patrol Guide Procedure No. 206-16, “Additional Data:”

“If personal service of the Charges cannot be made, service may be affected:

  1. By mailing the Charges and Specifications to the person to be served at his last known residence by registered or certified mail, return receipt requested.

As already stated, on March 6, 2010, Petitioner-Respondent gave written notice to Respondent-Appellants that he would be in Lima, Peru from March 8, 2006, through April 15, 2006. Said notice was provided on Police Department forms which were accepted and approved by his superiors at his command (R99). As of March 10, 2006, Respondent-Appellants were aware that Petitioner-Respondent had left the United States (R105, Paragraph 64; R110, Paragraph 94). Notwithstanding having been put on notice that Petitioner-Respondent would be located in Lima, Peru from March 8, 2006, through April 15, 2006, Respondent-Appellants sent, via First Class Mail and Certified Mail Return Receipt Requested, copies of the Charges and Specifications to two addresses in Queens, New York, believing one or both of them to be Petitioner-Respondent’s residence, between March 10, 2006, and March 14, 2006. Not surprisingly, Petitioner-Respondent did not receive any of the mailings because he was living at the time in Lima Peru, as he indicated on six of the seven Leave of Absence Reports he submitted. Respondent-Appellants’ efforts to serve Petitioner-Respondent at his New York City residence via mail was cynical and perfunctory because it was well known that Petitioner-Respondent would not be found there. Thus, the efforts described were not reasonably calculated to provide Petitioner-Respondent with actual notice of the Charges and Specifications against him.

  1. Respondent-Appellants’ Efforts To Mail Copies of the Charges and Specifications to Petitioner-Respondent’s Address in Lima, Peru Failed To Comply With The Provisions of the Patrol Guide, and Were Not Reasonably  Calculated To Provide Actual Notice

On March 13, 2006, Respondent-Appellants “express mailed a copy of the Charges and Specifications addressed to the (Petitioner-Respondent) at Dante 863 Surquino Lima, Peru” (R110, Paragraph 96), and “also sent another Express Mail to Lima, Peru, at the same address we had last time,” apparently between March 13th, and March 20th, 2006 (R352).

Pursuant to Patrol Guide Procedure No. 206-16, “Additional Data:”

“If personal service of the Charges cannot be made, service may be affected:

  1. By mailing the Charges and Specifications to the person to be served at his last known residence by registered or certified mail, return receipt requested, or delivering the Charges and Specifications to a person of suitable age and discretion at his place of business, dwelling or usual place of abode of the person to be served.

It should be noted that the Patrol Guide draws a distinction between a person’s residence, and a person’s dwelling or usual place of abode. Specifically, service can be affected at a person’s last know residence simply by sending notice via registered or certified mail, while service at a person’s dwelling or usual place of abode requires delivery to a person of suitable age and discretion thereat.

As indicated above, due to the similarity between Patrol Guide Procedure No. 206-06, and CPLR Section 308, guidance can be found in case law pertaining to the CPLR service requirements. In the case of Feinstein v. Bergner, 48 N.Y.2d 234 (1979), the Court of Appeals firmly held that:

While there may be some question as to whether there is a distinction between “dwelling place” and “usual place of abode,” there has never been any serious doubt that neither term may be equated with the “last known residence” of the defendant (citations omitted). Indeed there are cogent reasons for preserving the distinction, apart from the obvious principle that where the Legislature has used different words in a series, the words should not be construed as mere redundancies.

Id. at 239.

Significantly, in both the “leave and mail” (CPLR Section 308[2]) and “nail and mail” (CPLR 308[4]) subdivisions, the Legislature retained both the requirement that the summons be delivered or affixed to the defendant’s actual place of business, dwelling place or usual place of abode and the additional requirement that the summons be mailed to the defendant’s last known residence. Presumably, the Legislature left these aspects of CPLR intact in the belief that a further liberalization of the requirements for service would jeopardize the primary statutory purpose of ensuring that defendants receive actual notice of the pendency of litigation against them. In light of the Legislature’s continued adherence to these dual requirements, we cannot and should not blur the distinction between “dwelling place” and “last known residence,” since to do so would be to diminish the likelihood that actual notice will be received by potential defendants. While a rule which permits both the “nailing” (or, presumably, delivering to a person of suitable age and discretion) and “mailing” steps to be completed at a defendant’s last known residence would make it infinitely easier to serve the “hard-to-find” defendant, such a rule would not ensure that a readily accessible defendant is given adequate notice.

Id. at 240.

In the case at bar, between March 8, 2010, when he flew to Peru, and March 20th, 2010, when his expedited Police Department trial commenced, Petitioner-Respondent’s “residence” was located in Queens, New York, while his “dwelling or usual place of abode” was located in Lima, Peru (See Cuomo v. Cuomo, 144 A.D.2d 331 [2nd Dept. 1988]). The Courts have firmly held that “the mailing requirement of CPLR 308 (subdivision 2) is to be strictly construed,” Booth v. Lipton, 87 A.D.2d 856 (2nd Dept. 1982).

Despite Respondent-Appellants’ protestations to the contrary, the record does not contain “sufficient evidence of an admissible nature to warrant a finding that the (Petitioner-Respondent) engaged in affirmative conduct calculated to prevent the plaintiffs from learning of his new address,” Chiari v. D’Angelo, 123 A.D.2d 655 (2nd Dept. 1986). Petitioner-Respondent provided Respondent-Appellants with written notice, on Police Department Forms, which were accepted and approved by his command, stating his address in Lima, Peru, and Respondent-Appellants have failed to provide any sworn affidavits from anyone who purportedly visited Petitioner-Respondent’s Lima, Peru address, explaining what they did, or what they found there. What can be gleaned from the limited information provided by Respondent-Appellants is that its agents only found a barbershop, and failed to either confirm or disprove the existence of a residence thereat.

Because Respondent-Appellants attempted to mail the Charges and Specifications to Petitioner-Respondent at his Lima, Peru address, rather than having the Charges served upon a person of suitable age and discretion thereat, Respondent-Appellants failed to comply with the requirements of Patrol Guide Procedure No. 206-06, Additional Data, Subdivision (a).

Additionally, in light of Respondent-Appellants’ assertion that they learned, on March 12, 2006, (R172) that the Lima, Peru address was only “a barbershop, not a residence, and that no one at the barbershop knew anyone named Redacted Redacted” (R105), they cannot now claim that their efforts back then to “express mail” copies of the Charges and Specifications to the Lima, Peru address were reasonably calculated to provide Petitioner-Respondent with actual notice of the charges against him.

  1. Respondent-Appellants Cannot Rely Upon the Mail Presumption For Either the Mailings Sent to Petitioner-Respondent’s Residence in Queens, New York, or his Domicile/ Usual Place of Abode in Lima, Peru

RCNY Title 38, Section 15-03(b)(2) states, inter alia,

Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, to the Respondent’s last address known to the Department, shall be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service shall be required.

It is well established that adequate proof of proper mailing will raise a rebuttable presumption that the mail was received by the addressee (see Woodner v. Higgins, 179 A.D.2d 444, 445 [1st Dept. 1992]). As to the mailings sent to Petitioner-Respondent’s addresses in Queens, New York, the presumption is rebutted by the Leave of Absence Reports submitted by Petitioner-Respondent, and accepted and approved by his command, coupled with the Respondent-Appellants’ concession that they knew Petitioner-Respondent had left the United States prior to the mailings, and had no reasonable basis for believing that Petitioner-Respondent would be home in Queens, New York to receive the mailings.

As to the mailings sent to Petitioner-Respondent’s address in Lima Peru: Although adequate proof of proper mailing will raise a rebuttable presumption that the mail was received by the addressee, the proof of proper mailing cannot simply be dispensed with by the party seeking to enforce the presumptions. As the trial court noted below, although it has been asserted by Respondent-Appellants that “on March 13 (2006), an investigator express mailed the charges to Redacted at his location in Peru…proof of service is not on the record before this court (R13).

Respondent-Appellants’ claim in its Brief that “the record contains no assertion by Petitioner-Respondent’s counsel that any affidavits were missing or that the Department’s proof of service was lacking” (B50) is completely in error. Arguably, Petitioner-Respondent’s entire Article 78 Petition was an assertion that the Department’s proof of service was lacking. However, Paragraph 62 of Petitioner-Respondent’s Verified Petition states, “Although the department purports to have attempted to notify Petitioner of the charges being brought against him, at his address in Peru, the department failed to adequately do so” (R34). This averment in Petitioner-Respondent’s Verified Petitioner clearly constitutes an assertion that the Department’s proof of service is lacking.

Respondent-Appellants’ concede in their Brief that “the affidavits the court refers to are technically not documents included in the record,” but then goes on, incredibly, to state, “the description in the hearing transcript of what is contained in the ‘entire package’ legally suffices,” and that “the technical rules of evidence do not apply to an administrative hearing” (R50). Although it is correct that the technical rules of evidence do not apply to an administrative hearing, this goes to the admissibility of the evidence, not to the weight to be accorded. It is certainly not intended to dispense with the most basic elements of due process. Further, the description in the hearing transcript constitutes, at a minimum, double hearsay: the investigator who mailed the documents informed Mr. Peters, who made the representation on the record. It could also be triple hearsay if Mr. Peters read the affidavits which were provided by the investigator without speaking to the investigator. In any event, the evidence of the mailing to Petitioner-Respondent at his Lima, Peru address is totally inadequate, whether pursuant to RCNY 15-03(b)(2), or pursuant to basic due process.

For the reasons stated above in paragraph (D)(2)(b) of this Argument, it was not appropriate for Respondent-Appellants to attempt to mail a copy of the Charges and Specifications to Petitioner-Respondent at his Lima, Peru address, in any event. However, even if it was appropriate, Respondent-Appellants cannot claim the benefit of the mailing presumption because their evidence as to the mailing is insufficient.

  1. Respondent-Appellants’ Efforts to Deliver Copies of the Charges and Specifications to a Person of Suitable Age and Discretion at Petitioner-Respondent’s Former Place of Business were Not Reasonably Calculated To Give Him Actual Notice

Patrol Guide Procedure No. 206-16, “Additional Data,” Subdivision (a) provides a second means of substitute service, to wit:

Delivering the Charges and Specifications to a person of suitable age and discretion at his place of business, dwelling or usual place of abode of the person to be served (sic).

(i) As already stated, on March 6, 2010, Petitioner-Respondent gave written notice to Respondent-Appellants that he would be in Lima, Peru from March 8, 2006, through April 15, 2006. This notice was provided on Police Department forms which were accepted and approved by his superiors at his command (R99). As of March 10, 2006, Respondent-Appellants were aware that Petitioner-Respondent had left the United States (R105, Paragraph 64; R110, Paragraph 94).

Additionally, on March 6, 2010, Petitioner-Respondent had submitted an application to discontinue his police service with a vested interest, effective April 5, 2006, which had also been approved by the Police Department (R99). Notwithstanding

this written notice that Petitioner-Respondent had discontinued his police service, and left the United States, Respondent-Appellants, on March 10, and March 13, 2006, sent an investigator to Petitioner-Respondent’s former police command, and served copies of the Charges and Specifications upon police personnel there (R109, R170).

Not surprisingly, Petitioner-Respondent did not receive notice of the Charges and Specifications from anyone at his former command because Petitioner-Respondent was in Lima Peru, as indicated on six of his seven Leave of Absence Reports. Respondent-Appellants’ efforts to serve notice on Petitioner-Respondent at his former command were cynical and perfunctory because it was well known that Petitioner-Respondent would not be found there, and would have no reason to be in contact with anyone there. Thus, the efforts described were not reasonably calculated to provide Petitioner-Respondent with actual notice of the Charges and Specifications against him.

  1. Respondent-Appellants’ Conversations With Petitioner-Respondent’s Mother and Brother, and the Copy of the Charges and Specifications That Was Provided To Petitioner-Respondent’s Attorney, Cannot Constitute Adequate Service Because Petitioner- Respondent Had Not Designated Anyone His Agent For Service, And None of the Persons So Mentioned Reported Any Contact With Petitioner-Respondent Since Before He Left the United States

Patrol Guide Procedure No. 206-06, “Additional Data,” Subdivision (b), provides that, when personal service of the Charges cannot be made, service may be affected by delivering a copy to the agent of the person to be served.

On March 2, 2006, Gustavo Vila, Esq. represented Petitioner-Respondent at an “Official Department Interview” (R25). On March 14, 2006, an emergency conference was convened by the Police Department for the purpose of scheduling an expedited hearing based upon alleged substituted service of the Charges and Specifications which were preferred against Petitioner-Respondent on March 10, 2006 (R140-214). At the March 14th conference, Mr. Vila argued vociferously that the substituted service attempted by Respondent-Appellants was insufficient to provide Petitioner-Respondent with actual notice of the Charges and Specifications against him, and that any effort by the Police Department to proceed with a hearing in absentia would be a violation of Petitioner-Respondent’s Due Process rights (R140-24).

Additionally, Mr. Vila stated on the record that Petitioner-Respondent did not inform him that he had filed for retirement (R154), that he had not had contact with Petitioner-Respondent since March 2nd (R154-155), and that he had been trying unsuccessfully to contact Petitioner-Respondent (R155, R203).

Although Mr. Vila was provided with a copy of the Charges and Specifications by Mr. Peters on March 14th (R148-149), Mr. Vila never indicated that he was designated Petitioner-Respondent’s agent for the purpose of accepting service, and never indicated on the record that he was accepting service. Further, neither Mr. Peters, or the Trial Commissioner indicated that an effort was being made to serve Mr. Vila on behalf of Petitioner-Respondent (R140-214). In fact, it was made clear by the Trial Commissioner that Mr. Vila was merely being asked to review the Charges and Specifications in order to assist the Trial Commissioner in determining “whether any of the subject matter covered in the charges relates to the subject matter that was raised in questions to the (Petitioner-Respondent) at the (Official Department Interview) held on March 2nd (R148). It has never been claimed by the Respondent-Appellants, before the trial court below, or in their appellate brief, that service of the Charges and Specifications was attempted, much less affected, via Mr. Vila.

Similarly unavailing is the Respondent-Appellants’ claims that they contacted Petitioner-Respondent’s mother and brother. There is nothing in the record from which it may be gleaned that either Petitioner-Respondent’s mother or brother were agents designated to receive service on behalf of Petitioner-Respondent, and in fact, there is nothing indicating that either was provided with a copy of the Charges and Specifications.

Thus, Respondent-Appellants’ claim that they “contacted Petitioner-Respondent’s lawyer, mother and brother in an effort to notify Petitioner-Respondent of the pending charges and hearing” (B47), is meaningless as to their exercise of Due Diligence in attempting to serve Petitioner-Respondent with the Charges and Specifications.

  1. Respondent-Appellants’ Efforts to “Nail and Mail” Copies of the Charges and Specifications Did Not Comply With the Provisions of the Patrol Guide, and Were Not Reasonably Calculated To Provide Petitioner-Respondent With Actual Notice

Patrol Guide Procedure No. 206-16, “Additional Data,” Subdivision (c) provides a Fourth means of substitute service, to wit:

Where service under subdivisions “a” and “b” cannot be made, affix Charges and Specifications either to the door of the actual place of business, dwelling or usual place of abode, of the person to be served and by mailing (registered or certified, return receipt requested) the Charges and Specifications to the person at his last known residence.

Initially, Respondent-Appellants should not be allowed to utilize the “Nail and Mail” provisions of the Patrol Guide because Charges and Specifications could have been served upon a person of suitable age and discretion at the address in Lima, Peru, by the agents of the Department of State who visited there (Patrol Guide Section 206-06, “Additional Data” Subdivision [a]). That said, there is nothing in the record to indicate that Respondent-Appellants attempted to utilize the “Nail and Mail” provisions of the Patrol Guide at the address in Peru, although there is also nothing in the record to indicate that this method was unavailable.

As to the multiple times that Respondent-Appellants affixed copies of the Charges and Specifications to the doors of the addresses which Respondent-Appellants associated with Petitioner-Respondent in Queens, New York, it cannot be said that any of these attempts were reasonably calculated to give Petitioner-Respondent actual notice of the charges because, as stated repeatedly above, Respondent-Appellants knew that Petitioner-Respondent was not in the United States, and thus, would not receive the documents affixed to his door. The courts have held, with regard to the “Nail and Mail” provisions in the CPLR, that, “The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received.” Gurevitch v. Goodman, 269 A.D.2d 355 (2nd Dept. 2000). Based upon the record in this case, the due diligence required of the Respondent-Appellants for “Nail and Mail” service was simply not met.

  1. The Record Does Not Indicate that Respondent-Appellants Made A Motion For, Or that the Deputy Commissioner-Trials Directed Other Forms of Service.

Patrol Guide Procedure No. 206-16, “Additional Data,” Subdivision (d) provides a Fifth means of substitute service, to wit:

In such manner as the Deputy Commissioner-Trials directs, upon motion without notice, if service is impractical under subdivisions “a,” “b” or “c.”

The record does not indicate that Respondent-Appellants made a motion for, or that the Deputy Commissioner-Trials directed any other forms of service.

  1. The Record Shows That Respondent-Appellants Concluded Prematurely That Petitioner-Respondent Was Attempting To Avoid Service, and For This Reason, Failed To Perform Due Diligence By Making Perfunctory and Insincere Attempts At Providing Actual Notice

A revealing passage in the Respondent-Appellants’ Brief is the following:

“It appeared to Peters when he heard from Internal Affairs that on March 8 that Petitioner-Respondent had left for Lima Peru with a one-way ticket, that Petitioner-Respondent had decided to absent himself from the Department in order to prevent it from taking any action on the March 2 interview” (B48) (sic).

It was this rush to judgment on the part of Mr. Peters, and the Respondent-Appellants et.al., that informed all of the Respondent-Appellants’ subsequent efforts to serve notice on Petitioner-Respondent, including the “hasty attempt to send an agent to Redacted’s location in Lima where they claim to have found no more than a barbershop and quickly gave up” (R15).

Respondent-Appellants’ claim that a “finding” was made that Petitioner-Respondent took “evasive action” (B53-55) is completely erroneous. The record shows that the Trial Commissioner merely expressed an opinion, based exclusively upon representations made by a police department attorney, and without anything that could be deemed admissible evidence. The record is devoid of “sufficient evidence of an admissible nature to warrant a finding that the (Petitioner-Respondent) engaged in affirmative conduct calculated to prevent the (Respondent-Appellants) from learning of his new address so as to estop the (Petitioner-Respondent) from raising the defect in service as a defense” Chiari v. D’Angelo, 123 A.D.2d 655 (2nd Dept. 1986), see also Feinstein v. Bergner, 48 N.Y.2d 234, 241(1979).

In fact, to the contrary, Petitioner-Respondent provided Respondent-Appellants with an address where service upon him could be served, and Respondent-Appellants failed to exercise due diligence in either debunking the address, or affecting service thereat.

  1. Because Respondent-Appellants Failed To Comply With Their Own Procedures Regarding Service of Charges and Specifications, Their Conduct Is, As a Matter of Law, Arbitrary and Capricious

“It is well settled that a statute permitting service of process other than by personal service must be strictly complied with in order to confer jurisdiction upon the court.” Air Conditioning Training Corporation v. Pirrote, 270 A.D. 391 (1st Dept. 1946). As is clearly demonstrated above, Respondent-Appellants failed to comply with the provisions of their own Police Department Patrol Guide in their perfunctory efforts to serve notice upon Petitioner-Respondent. As the Trial Court correctly noted, “an agency acts arbitrarily and capriciously when it fails to conform to its own rules and regulations.” Brooks v. Forsythe, 189 A.D.2d 26, 31-32 (3rd Dept. 1993) (R11).

Conclusion as to Point One

The Trial Court correctly held that Respondent-Appellants did not exercise due diligence in their efforts to serve Petitioner-Respondent with notice of the charges against him, and in fact, that they failed to comply with their own regulations regarding service of notice. Thus, the Trial Court’s decision that the conduct of Respondent-Appellants was arbitrary and capricious and an abuse of discretion, should be upheld.

Point Two

Respondent-Appellants Bear Sole Responsibility For

The Circumstance That Petitioner-Respondent Qualified For

A Vested Retirement From The Police Department

Prior To Respondent-Appellants Serving Him With Notice

Of Charges

To summarize the facts elicited above, for over two (2) years, Petitioner-Respondent was the subject of an official Police Department investigation, during the course of which he was interviewed regarding allegations of his alleged misconduct on three separate occasions (R108). Notwithstanding this lengthy investigation, Petitioner-Respondent had not been served with any official notice that he had engaged in any form of misconduct as of March 6, 2006 (R107). On March 6, 2006, Petitioner-Respondent appeared at the NYPD Pension Section, and filed for a vested retirement from the NYPD effective April 5, 2006. This application was accepted and approved by the Police Department (R99). On March 6, 2006, Petitioner-Respondent also appeared at his command, and requested leave effective March 8, 2006, through April 15, 2006. Petitioner-Respondent made this request for leave on a series of official Police Department forms, and included on the forms an address in Lima, Peru, indicating that he would be located at the Lima, Peru address for the duration of his leave. The forms, containing the duration of his request for leave, and the address in Peru where he would be located during his leave, were accepted and approved by the Police Department (R99).

On March 10, 2006, while fully aware that Petitioner-Respondent had departed for Peru via JFK Airport on March 7, 2006, Respondent-Appellants drafted Charges and Specifications against him, and commenced a perfunctory campaign to serve the charges upon Petitioner-Respondent, as detailed above (R99-100). Respondent-Appellants conducted an expedited trial, without Petitioner-Respondent in attendance, on March 20 and 21, 2006, and terminated his employment effective April 3, 2006, thereby attempting to deny Petitioner-Respondent his vested interest pension (R102-103).

RCNY Section 15-03(b)(1) clearly states,

The Department shall be responsible for serving the Respondent-Appellants with Charges and Specifications.

The fact that the Respondent-Appellants failed to serve Petitioner-Respondent with Charges and Specifications prior to accepting his retirement and his request for leave does not warrant suspending due process in a haste created by their own actions.

Conclusion as to Point Two

The Trial Court correctly held that Respondent-Appellants rationale for an expedited trial in absentia was conclusory, did not constitute good cause, and resulted in a denial of due process for Petitioner-Respondent. Thus, the Trial Court’s decision that the conduct of Respondent-Appellants as to Petitioner-Respondent’s expedited trial was arbitrary and capricious, and an abuse of discretion, should be upheld.

Point Three

The Issue Of Substantial Evidence, Discussed

As Point Two Of Respondent-Appellants’ Brief, Was

Specifically Not Reached By The Trial Court Below.

Thus, All Of The Information Provided By

Respondent-Appellants, As To The Charges And Specifications

Preferred Against Petitioner-Respondent, And As To Evidence

Allegedly In Support of the Charges, Is Dehors The

Record, And Should Not Be Considered

It is respectfully submitted that all of the information provided as to the substance of the Charges and Specifications, which takes up 35 of the 64 pages of Respondent-Appellants’ Brief (B3-44), and 575 of the 808 pages of Respondent-Appellants’ Record on Appeal (R215-348, R363-805), is a cynical attempt to prejudice this Honorable Court against Petitioner-Respondent, and distract attention away from the issues that are before the court.

The Trial Court below specifically stated in its decision,

As this court need not reach the issue of substantial evidence, the instant proceeding is not transferred to the Appellate Division, First Department (R16).

Respondents-Appellants concede this fact in their Statement of Facts (B44). Thus, there is no decision of the court below relating to substantial evidence for this Court to review. Respondent-Appellants effort to simply bypass the Trial Court should not be countenanced.

Conclusion as to Point Three

As the Trial Court did not rule on the issue of substantial evidence, all information provided by Respondent-Appellants which would go to substantial evidence should be disregarded.

Point Four

Petitioner-Respondent’s Vested Interest Retirement

From the Police Department Became

Effective Automatically, By Law, On April 5, 2006,

And Should Be Clearly Reinstated By This Court

According to the Court of Appeals:

Pension rights are in the nature of compensation for the services previously rendered for which full and adequate compensation was not received at the time of the rendition of such services (cite omitted), and, as such, ought not to be withheld without legal cause from those with deserving records of service.

Gordon v. Monaghan, 309 N.Y. 336, 342, 130 N.E.2d 882 (1955).

As noted by the Trial Court, ANo charges were brought against (Petitioner-Respondent) in 2005, or at any time prior to his resignation@ (R14). This fact has been conceded by Respondent-Appellants in their answering papers (R98). Petitioner-Respondent applied for vested interest retirement on March 6, 2006, to be effective April 5, 2006, according to and in compliance with the rules and procedures of the Respondent-Appellants, who accepted and approved his application (R99).

The administration of the vested retirement rights of a uniformed member of the NYPD are governed by Section 13-256 of the New York City Administrative Code, the pertinent provisions of which are as follows:

13-256 Vested retirement rights.

  1. Any member who:
  • discontinues police service on or after July first, nineteen hundred sixty-nine, other than by death, retirement or dismissal; and
  • prior to such discontinuance, completed five or more years of allowable police service; and
  • does not withdraw his or her accumulated deductions in whole or in part; and
  • at least thirty days prior to the date of such discontinuance, files a duly executed application for a deferred retirement allowance hereunder;
  • Shall have a vested right to receive a deferred retirement allowance as provided in this section.
  1. Upon such discontinuance under the conditions and in compliance with the provisions of subdivision Aa@ of this section, such deferred retirement allowance shall vest automatically. (Emphasis added).

(2) Such retirement allowance shall become payable on the earliest date on which such discontinued member could have retired for service if discontinuance had not occurred.

Petitioner-Respondent has met all of the requirements of Section 13-256 of the Administrative Code. He discontinued his police service within the parameters of Section 13-256(a)(1); had completed over thirteen and a half years of service at the time of his discontinuance, well within the parameters of Section 13-256(a)(2); and had not withdrawn his accumulated deductions in whole or in part, consistent with Section 13-256(a)(3), (see R98-99; R97, Paragraph 4; and R24, Paragraph 6, respectively).

Although Respondent-Appellants dismissed Petitioner-Respondent within thirty days of his application for vested retirement, the Trial Court has held that Respondent-Appellants failed to exercise due diligence, denied Petitioner-Respondent due process, and rendered a final determination dismissing him that is Aarbitrary and capricious, and without sound basis in reason,@ and “without a rational basis in the record” (R15-16).           The Order of the Trial Court then goes on to remand this matter Ato the Respondent-Appellants for a full hearing, on proper notice to Petitioner-Respondent Redacted, consistent with this opinion@ (R16). However, if the findings of the Trial Court are valid as to the conduct, and the final determination of Respondent-Appellants, then Administrative Code Section 13-256 renders that portion of the Trial Court’s order, remanding this matter for a hearing, a legal nullity.

Respondent-Appellants conceded the existence of a thirty day limitation upon their ability to serve charges, conduct a due process hearing, and act upon a determination of said hearing, when they pursued alternative means of service, conducted an expedited hearing in absentia, and dismissed Petitioner-Respondent from the NYPD, all within less than thirty days of his application for vested retirement. In fact, the Trial Commissioner cited this reality in his report explaining the conduct of Petitioner-Respondent’s trial (R53).

The Court of Appeals has made clear that this thirty day period is provided to allow Respondent-Appellants:

The opportunity to investigate applicants for retirement and to determine whether up to the time when their terminal leaves of absence take effect they had performed their services faithfully and in a manner entitling them to pension benefits.

Gordon v. Monaghan, 309 N.Y. 336, 343-344, (1955).

Respondent-Appellants cannot reasonably expect that, by failing to exercise due diligence, denying Petitioner-Respondent due process, and rendering a final determination dismissing Petitioner-Respondent that is arbitrary and capricious, without a sound basis in reason, and without a rational basis in the record (R15-16), they can actually toll the thirty day period!

In the case of Pierne v. Valentine, 266 A.D.70 (2nd Dept. 1943), the court reviewed the application of Administrative Code Section B18-4.0, the predecessor statute to Administrative Code Section 13-256. The case involves two police officers who submitted their applications for retirement, and were subsequently the subjects of disciplinary charges. Although the former statute lacked the strident language contained in Section 13-256 (to wit: “such deferred retirement allowance shall vest automatically”), nonetheless, the court held that:

The statute is self-executing and the retirement of Pierne and Harvey (the Appellant-Police Officers) was effectuated by the filing of their applications.

Id. at 77.

Conclusion as to Point Four

If the trial in absentia of Petitioner-Respondent is null and void for all of the reasons stated above, then Petitioner-Respondent’s vested retirement from the Police Department vested automatically on April 5, 2006 pursuant to Administrative Code Section 13-256 (a) & (b). No further proceedings are warranted in this matter. Petitioner-Respondent should be deemed by this court to be retired, and entitled to his vested interest pension.

CERTIFICATE OF COMPLIANCE

Pursuant to Rule of Procedure Section 670.10.3(f)

MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, tha the heretofore Brief was prepared on a computer, the typeface is Times New Roman, the point size is 14, the line spacing is double except for headings and quotations, and the word count as per my processing system used to prepare the brief is 9,391.

                                                                   _____________________________

                                                                   Michael F. Dailey, Esq.

[1] At R203 Mr. Peters clearly misspoke. Respondent-Appellants do not claim that the State Department made contact with Petitioner-Respondent (see R35, Paragraph 65; R105, Paragraph 65, and R 356, L2-10; and R50-51). Apparently Mr. Peters meant to say that the State Department was prepared to tell Petitioner-Respondent that he should be back for a March 20 trial.

Michael F. Dailey, Esq.

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