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1 FILED: NEW YORK COUNTY CLERK 11/07/ :56 PM INDEX NO /2016 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/07/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS, x In the Matter of the Application of, PATRICK MURRAY, Petitioner For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, VERIFIED PETITION -against- DANIEL A. NIGRO, as Fire Commissioner of the City of New York, THE FIRE DEPARTMENT OF THE CITY OF NEW YORK Respondents x TO THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YOK The Petitioner, PATRICK MURRA Y by his attorneys, Kliegerman & Joseph, LLP respectfully alleges as follows: FIRST: This Petition is made in support of Petitioner's Application for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules for an Order, A. Annulling the determination of the Respondent not to reinstate the Petitioner to his position as a New York City Firefighter. B. Restoring to Petitioner all back pay, benefits, service time vacation benefits, increments, and all other fringe benefits; and C. Granting the Petitioner such other and further as to the court may seem just and proper. 3

2 THE FACTS AND CIRCUMSTANCES SURROUNDING DISMISSAL: SECOND: That at all time hereinafter mentioned, your Petitioner was and still is a citizen of the United States of America and the State of New York. THIRD: That the Petitioner was duly appointed a Firefighter or about Petitioner was a New York City Firefighter until August 25,2011. FOURTH: That the Respondent DANIEL A. NIGRO, at all times hereinafter mentioned, is the Commissioner of the NEW YORK CITY FIRE DEPARTMENT and as such, is charged with carrying out duties and responsibilities of the NEW YORK CITY FIRE DEPARTMENT, including but not limited to, discipline of Firefighters from any perceived violations of the Rules and Regulations, as well as consideration of all requests for reinstatement, said Respondent maintains his principal place of business in the County of Kings, State of New York. FIFTH: That the Respondent, NEW YORK CITY FIRE DEPARTMENT (hereinafter "The Department") which maintains and operates as THE NEW YORK CITY FIRE DEPARTMENT, is a duly constituted agency of the City of New York, existing pursuant to the New York City Charter and laws of the City of New York and State of New York. Said respondent maintains his principal place of business in Kings County, State of New York. SIXTH: That on or about January 28, 2016, the Respondents served the Petitioner with a letter notifying him that his request to be reinstated to his position as a New York City firefighter was denied. (See Exhibit A) SEVENTH: That the Respondent Fire Department denied Petitioner's application unlawfully, arbitrarily, and capriciously. 4

3 EIGHTH: That a hearing was held on October 7,2015 pmsuant to Public Officers Law~Section 30(1)( e). A recommendation rendered by Deputy Commissioner Douglas White was issued on January 22,2016. NINTH: Respondent's denial of Petitioner's request for reinstatement was based on the recommendation of Deputy Commissioner Douglas White who explained his recommendation in a memorandum to Fire Commissioner Nigro on January 22, 2016 that was submitted after a hearing held pursuant to Public Officers Law Section 30(1)(e) (See Exhibit B). Petitioner was a New York City firefighter when he was arrested on February 24, 2009 and subsequently indicted for conspiring to manufacture and distribute marijuana. His alleged c0- conspirator was Matthew Cody, a New York City firefighter and friend. Petitioner was convicted after trial and sentenced to 5 years in prison. He was imm~ately tenninated from his firefighter position pursuant to the Public Officer's Law. His conviction was reversed by the United States Court of Appeals for the Second Circuit on November 27, 2013 (See Exhibit C). The appeals court stated that the trial judge in the United States District Court erred when it refused to permit the defendant (petitioner) to call a rebuttal witness to controvert testimony of one of the government's key witnesses. The court opined that rebuttal evidence was particularly relev.ant and important and that if that evidence had been admitted, it would have resulted in the trial boiling down to a credibility contest between petitioner and a cooperating witness, co-defendant Matthew Cody. Cody had signed a cooperation agreement with the government and was testifying with the hope of staying out of jail. That goal he would accomplish when the court sentenced him to a period of probation. 5

4 The appeals court was in effect stating that petitioner was not afforded a fair trial and sent the case back to the District Court for a new proceeding. The second trial resulted in an acquitted on all charges and petitioner was released from prison after having served over 3 years. Petitioner then applied pursuant to Public Officers Law 30(1)( e) to be reinstated to his position as a New York City firefighter. TENTH: Fire Commissioner Nigro referred the matter to Deputy Commissioner White for a hearing and recommendation with regard to the reinstatement of petitioner. ELEVENTH: A hearing was held before Deputy Commissioner White on October 7,2015 (see Exhibit D). TWEL TH: Lt. David Danak, a character witness for petitioner, testified, as well as petitioner, Patrick Lydon was called by the Fire Department. THIRTEENTH: On January 22,2016, Deputy Commissioner White forwarded a memorandum (Exhibit B) recommending that petitioner not be reinstated. FOURTEENTH: The recommendation to not reinstate was based upon Deputy Commissioner White's conclusion that petitioner lied to a police officer questioning him about whether he made a U-turn on the date of his arrest. To support his reasoning on this subject, White referenced pages fonn the transcript of the October 7,2015 hearing. None of these references actually support his position. He fust refers to hearing transcript on page 36, lines 10-12, where he states that petitioner admitted that he made a statement to police that was not accurate. This reference is clearly taken out of context because lines on page 36 read as follows: Q. What was it that you said? A. They had said I was here making a U-turn or something, but I don't remember saying that I'm not denying I 6

5 said it 'cause I was scared, they were in plainclothes, I didn't know who they were. I just seen guns and it was very scary. (Transcript page 36 lines 13-18) White further states that petitioner admitted he was lying when he stated that he was making a U- turn in the driveway of the grow-house when clearly that was not true. A plain reading of Transcript page 36, lines 13-18, demonstrated that petitioner never admitted that he lied to the police. White asked petitioner again about the U-turn on Transcript page 52, lines and Transcript 53 lines 2-9. MR. WHITE: So again, why did you say you were making a U-turn? THE WITNESS: I don't know. MR. WHITE: You werent's making a U turn. THE WITNESS: No, I wasn't. So if I said it, it was definitely out of fear, and I just blurted it out. Maybe I thought it was a violent act, I feared for my life. I saw the gun shake in his hand. I don't know what the tenants do. I just heard bad things happen like this, so if I said it, I said it. It is clear that White was seeking a response that he never received. His reference to petitioner's statement about the U-tum does not suggest that he was lying to a police officer rather simply that he was confused about a seemingly unimportant aspect of his testimony. FIFTEENTH: To deny reinstatement based on the facts adduced at the hearing in this case is clearly grasping at straws. Particularly when one considers other matters where the Fire Department has chosen to overlook certain factors in connection with hiring and reinstatement. Two of the police officers who shot and killed Amadoo Diallo are now New York City firefighters. They were both acquitted, as was petitioner, but petitioner was denied an opportunity to return to work. Fonner FDNY 7

6 Commissioner Cassano's son who left the Fire Department in disgrace over bigoted and anti- Semitic tweets he admitted making has been reinstated; yet the department refuses reinstatement to a decorated member of the department who served flawlessly for seven years. SIXTEENTH: The record in this matter clearly established that the decision not to reinstate petitioner is not based on any factual criteria. A fair reading of the transcript of the hearing of October 7, 2015 together with the decision of the court that reversed petitioner's criminal conviction demonstrates that petitioner should have been reinstated. SEVENTEENTH: No prior application for the relief hereinafter sought has been made. WHEREFORE, your deponent respectfully prays that an Order and Judgment be granted herein pursuant to Article 78 of the Civil Practice Law and Rules for an Order: A. Annulling the detennination of the Respondent Fire Commissioner of the City of New York denying Petitioner reinstatement to his position as a New York City firefighter, granting back pay and benefits; and, B. Granting the Petitioner such other relief as the Court may deem just and proper. Dated: New York, New York May 24, 2016 Yours, etc., 1"'l1"'l::l~--.a.... ~,GERMAN, ESQ. & JOSEPH, LLP Attorneys for Petitioner Two Rector Street, 20 th Floor New York, New York (212)

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x In the Matter of the Application of, PATRICK MURRA Y Petitioner For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- DANIEL A. NIGRO, as Fire Commissioner of the City of New York, THE FIRE DEPARTMENT OF THE CITY OF NEW YORK Respondents x State of New York, County ornew York VERI FlCA TlON Index #: tjtj 'It j2 /2 0/6 I PATRICK MURRA Y, being du ly sworn, deposes and says that he is the Petitioner in the within proceedings; that he has read the foregning Petition and knows the contents thereof; that he same is true to his own knowledge except as to matters therein stated to be on information and belief and as to those matters he believes it to be true. Sworn to before me thi s '1±.-,h day of May, 2016 Notary Public RONALD E. KLiEGERMAN Notary Public, State of New York No aualified in New York County ~'1 f ih t' 9 /10 / t7