THE CITY OF NEW YORK OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS. In the Matter of : DEPARTMENT OF CORRECTION, : Index No. Petitioner, : 151/94

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1 THE CITY OF NEW YORK OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS X In the Matter of : DEPARTMENT OF CORRECTION, : Index No. Petitioner, : 151/94 - against - : MEMORANDUM DECISION VINCENT REBECCA, : Respondent. : X P R E S E N T: RAY KRAMER Administrative Law Judge T O : CATHERINE M. ABATE Commissioner Department of Correction A P P E A R A N C E S: ORBEIN de ARMAS, ESQ. Attorney for Petitioner Department of Correction 60 Hudson Street, 7 th Floor New York, New York TELLERMAN, PATICOFF AND GREENBERG Attorneys for Respondent 233 Broadway, 18 th Floor New York, New York BY: FLORENCE FRIEDMAN, ESQ.

2 - 2 - This is an employee disability proceeding referred by the petitioner, the Department of Correction, pursuant to section 71 of the New York State Civil Service Law. Petitioner alleges that respondent, a correction officer, is medically unfit to perform the duties of a correction officer, and seeks to place him on an unpaid leave of absence as per section 71 (ALJ Exs. 2A and 2B). A hearing on the issue of respondent's fitness was scheduled to be conducted before me on October 7, On that date, the parties appeared, but, at the outset of the proceedings, respondent's counsel sought leave to withdraw, on the grounds that respondent had discharged her the previous afternoon and had retained new counsel who was unable to be present. Respondent's counsel joined respondent in seeking an adjournment of the case to allow new counsel to appear. Petitioner's counsel opposed both applications as untimely, and noted his readiness to proceed. For the reasons specified below, I denied both applications. Furthermore, upon respondent's assertion that he was not currently fit to perform the duties of a correction officer, I ruled that a hearing in this matter would be unnecessary, and closed the record without testimony or further proceedings. A brief review of the circumstances leading up to these rulings is appropriate. Respondent, a correction officer, has not worked full duty since April 22, 1989, when "during exercise session, he tripped over another officer in front of him resulting to [sic] injury to his (L) ankle" (ALJ Ex. 2A). Since that time, respondent has been on either sick leave or medically monitored (light) duty with full pay. By letter dated May 1, 1992, petitioner notified respondent of its intention to place respondent on an unpaid leave of absence, as of June 1, 1992, pursuant to section 71 of the Civil Service Law, unless he objected. and requested a hearing to contest petitioner s assessment of his medical fitness (ALJ Ex. 2A). At some point shortly after notification went out, respondent retained

3 - 3 - the services of union counsel, Tellerman, Paticoff & Greenberg, to represent him in these proceeding 1 Through counsel, respondent objected to the proposed leave and requested a hearing as to the issue of his medical fitness. The case was not referred to OATH until July 15, 1993, when it was calendared for a pretrial conference on August 12, 1993 (ALJ Ex. 3). On August 12, the pretrial conference was adjourned to September 10, on application of respondent's counsel due to counsel s illness. In the interim, a trial date in this matter was set for October 7, and a notice of hearing was sent to respondent advising him of such (ALJ Ex. 4). On September 10, the parties appeared at a settlement conference conducted by Administrative Law Judge Fraser, who was assigned to handle all pretrial matters in this case. A settlement was not reached at the conference. Shortly thereafter, on September 16, 1993, petitioner made an application to Judge Fraser to amend the petition to allege that respondent was unfit for duty due to knee and back injuries suffered in April 1992, in addition to the April 1989 ankle injury already referred to in the petition. Judge Fraser granted the application over the objection of respondent and, at the same time, denied respondent's request for an adjournment of the trial to give him more time to prepare (see ALJ Ex. 2B, Mem. Decision (Sept. 21, 1993)). Thereafter, on September 24, 1993, Judge Fraser, sua sponte, issued an Order, pursuant to OATH Rules of Practice, 48 RCNY 1-24 (Nov. 30, 1992), directing respondent to file an answer in this case (see ALJ Ex. 5). The answer was to specifically address the question of whether respondent contended, as of the date of the answer, that he was medically fit to perform the duties 1 While respondent s counsel, Ms. Friedman, could not recall the exact date her firm was retained, petitioner's counsel represented that he had in his possession correspondence from the Tellerman firm, on behalf of respondent, dating back to May 14, 1992.

4 - 4 - of a correction officer. The answer was to be filed no later than October 5, 1993, two days prior to the hearing. On October 5, counsel for respondent, via a conference call, sought and received a one-day extension of time, until October 6, in which to file the answer. The basis for the extension was the fact that serious settlement negotiations were underway which might make further proceedings unnecessary. No settlement was reached and respondent did not file an answer. Instead, the parties appeared for the scheduled trial on October 7, and respondent made the above-noted applications for substitution of counsel and an adjournment. In the circumstances, it was proper to deny respondent's applications. Under OATH Rules of Practice, an application for an adjournment is addressed to the sound discretion of the presiding judge, and is to be granted only for good cause. 48 RCNY 1-32 (b) (Nov. 30, 1992). Factors which the judge may consider in deciding whether to adjourn a matter include the timeliness of the request, the purpose for the adjournment, the inconvenience and burden of delay to others, and the need for the effective administration of justice. U.S. v. Calabro, 467 F.2d 973 (2d Cir.), cert. den., 410 U.S. 926, 93 S.Ct (1973). In making the request, the burden is on the moving party to demonstrate that the adjournment has been necessitated by forces beyond his control and is not simply a dilatory tactic. See Department of Correction v. Rice, OATH Index No. 194/90, Mem. Dec. at 6 (Feb. 8, 1990), aff d., A.D.2d., 581 N.Y.S.2d 311 (1st Dep't 1992); cf. People v. Arroyave, 49 N Y 2d 264, 425 N.Y.S.2d 282 (1980). In this instance, respondent was unable to demonstrate the requisite good cause for an adjournment. Respondent's application, coming as it did at the outset of the trial of a matter that had been pending on the OATH calendar almost three months (since July 1993), was clearly not timely. Delay in seeking an adjournment shall militate against grant of the request. 48 RCNY 1-32 (b) (Nov. 30, 1992); Department of Housing Preservation and Development v. Natal, OATH Index

5 - 5 - No.1185/90 (Mar. 22, 1991). An adjournment of this matter would have also inconvenienced petitioner, who was prepared to proceed, and its primary witness, a physician, who was produced to give testimony, and would run counter to the goal of efficient and expedient adjudication of such administrative proceedings in the public, as well as the parties interest. Moreover, respondent s sole expressed purpose for the requested delay in this case was to allow him to substitute new counsel, which he claimed to have retained. Yet, neither he nor Ms. Friedman could offer any persuasive reason for this last minute attempted switch. Respondent has been on notice since May 1992 of petitioner s intention to place him on an unpaid leave of absence, during which time, the Tellerman firm represented him in all matters concerning this litigation. That representation included appearing for respondent at a recent settlement conference at OATH, conducting ongoing related negotiations, complying with pretrial instructions from Judge Fraser, and opposing a recent application to amend the petition. At no time during this lengthy period of representation, nor even at the time he made these applications, did respondent ever indicate a dissatisfaction with his present counsel. Nor did respondent or Ms. Friedman maintain that the attorney-client relationship had deteriorated such that respondent had failed to cooperate in the conduct of and preparation for his defense. Ms. Friedman specifically disavowed any mandatory basis under the Code of Professional Responsibility (e.g., a conflict of interest) for her withdrawal from the case. In fact, but for respondent s expressed last minute change of heart, Ms. Friedman was ready, willing and able to represent him. Ms. Friedman s sole basis for seeking leave to withdraw from the case was respondent's notification to her, on the afternoon before trial, that he wanted someone else to represent him. That is clearly an insufficient basis for relieving counsel at this juncture or delaying this proceeding any further. As for his claimed retention of new counsel, respondent could only state that he talked to Bonita Zelman, Esq. on the afternoon prior to this scheduled proceeding, October 6, and that she agreed to represent him. Ms. Zelman did not appear in this proceeding and respondent asserted that

6 - 6 - she was involved in another matter in Supreme Court and could not be present. No money was paid for her service and no retainer agreement had been signed. Ms. Zelman made no effort to arrange a conference call or in some other manner signal her interest in interceding, such as by contacting the Tellerman firm to request discovery materials or determining the status of the case. Moreover, Ms. Zelman did not file the proper application with this tribunal to substitute as counsel (see 48 RCNY 1-12) (Nov. 30, 1992)), nor file a notice of appearance (see 48 RCRY 1-11 (Nov. 30, 1992)). In the circumstances, I could only infer that Ms. Zelman, an experienced advocate who has appeared before this tribunal in the past, failed to so act because she did not believe an attorneyclient relationship had been properly established as of that point. Considering all of the above, along with respondent's failure to file an answer in this case as directed by Judge Fraser, it seemed clear that respondent's eve of trial attempt to change counsel and to adjourn his hearing, was little more than a dilatory tactic lacking a good faith basis. Obviously, that is not a proper ground upon which to seek an adjournment. See Nunley v. Guido, 62 A.D.2d 1000, 403 N.Y.S.2d 301 (2d Dep't 1978), cert. den., 439 U.S. 866, 99 S.Ct. 191 (1978) (right to counsel may not be invoked merely to delay an administrative proceeding); see also Romeo v. Union Free School District No. 3, 82 Misc.2d 336,, 368 N.Y.S.2d 726, 730 (Sup. Ct. Suffolk Co. 1975). Nor was there any merit to respondent's assertion that the denial of his applications unfairly denied him the right to counsel of his own choosing. Respondent, in fact, had counsel of his own choosing for a year and a half, and could not give a viable reason for wanting to discharge them. Furthermore, while respondent clearly had a statutory and constitutional right to counsel at a hearing under section 71, he did not have an unqualified right to counsel of his choice. See U.S. ex. rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. den., 397 U.S. 946, 90 S.Ct. 964 (1970); Walters v. U.S., 404 F.Supp. 996, 998 (S.D.N.Y. 1975); see also Department of

7 - 7 - Correction v. Rodriguez, OATH Index No. 761/91 (June 28, 1991); Department of Correction v. Boddie, OATH Index No. 149/88 (Oct. 27, 1988). Ultimately, however, these issues were somewhat academic in light of respondent's position with respect to the merits of the disability proceeding. Respondent's right to demand a hearing under section 71 existed only to the extent that there was a relevant contested issue to be litigated. The only issue to be determined in a section 71 (or section 72) proceeding is whether the employee, at the time of the hearing, is currently fit to perform the duties of his position. In this case, respondent was directed to file an answer to the petition specifically addressing that question, but failed to do so without good cause. At trial, upon inquiry by this tribunal, respondent initially refused to take any position on his fitness to return to work. When the applications to change counsel and for an adjournment were denied, respondent finally acknowledged his inability to resume full duty in the following exchange: (Tr ). THE COURT: Do you have an answer to file? That is the only question at this point, no recesses, no delays, no further discussion. MR. REBECCA: Your Honor, being that I am not represented by counsel - - 'THE COURT: You are represented by counsel - - MR. REBECCA: Not the counsel that I wanted to be heard by, I have no other choice but I d like it to be clear for the record that I am not being represented by any counsel, so I don't really know what to say to this court. The only reason, you want an answer whether I am fit to return back to work at this point in time? Am I correct? THE COURT: Yes. That's what I want to know. Your position. Are you ready to return to work? MR. REBECCA: Due to the nature of my injuries? No. Your Honor. By his failure to comply with Judge Fraser's direction that he file a pretrial answer as to his fitness, and, more significantly, by his affirmative answer at these proceedings that he was not fit

8 - 8 - to perform the duties of a correction officer due to a disability, respondent made clear that there was no difference between his position and petitioner's on the only relevant issue to be litigated. In the absence of any dispute over the operative facts underlying petitioner's intention to place respondent on a leave of absence, a hearing was unnecessary. See Economics v. Village of Pelham, 50 N.Y.2d 120, 428 N.Y.S.2d 213 (1980); Dolan v. Whalen, 49 N.Y.2d 991, 429 N.Y.S.2d 169 (1980); Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22 (1984); Department of Correction v. Anglero, OATH Index No. 531/90 (Mar. 23, 1990); see also Department of Correction v. Rodriguez, OATH, Index No. 183/93, report and recommendation at 5, fn. 4, (Sept. 17, 1992). Petitioner may therefore immediately place respondent on a leave of absence pursuant, to section 71 of the Civil Service Law. DATED: October 21, 1993 Ray Kramer Administrative Law Judge