In the Matter of Raymond Castro, Respondent,v.Dora Schriro,, et al. Appellants.BriefN.Y.May 30, 2017New York County Clerk’s Index No. 101472/13 New York Supreme Court APPELLATE DIVISION FIRST DEPARTMENT In the Matter of the Application of RAYMOND CASTRO, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, against DR. DORA SCHRIRO, Correction Commissioner of the New York City Department of Correction, THE NEW YORK CITY DEPARTMENT OF CORRECTION and THE CITY OF NEW YORK, Respondents-Respondents. >> >> To Be Argued By: Liam L. Castro BRIEF FOR PETITIONER-APPELLANT KOEHLER & ISAACS LLP Attorneys for Petitioner-Appellant 61 Broadway, 25th Floor New York, New York 10006 917-551-1300 lcastro@koehler-isaacs.comOf Counsel: Liam L. Castro Printed on Recycled Paper TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii Nature of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv-v Statement of Record Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Point I - The Respondents-Respondents' Decision to Terminate Petitioner- Appellant Was Arbitrary, Capricious, and Made in Bad Faith. . . 8 Point II - Alternatively, and Respectfully, the Lower Court Should Have Denied the Cross-Motion to Dismiss, and Ordered a Hearing Pursuant to NY CPLR § 7804(h) to Resolve Disputed Issues of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 TABLE OF AUTHORITIES CASE LAW PAGE(S) State Court Decisions: Donofrio v. Hastings, 60 A.D.2d 989, 401 N.Y.S.2d 935 (4th Dept. 1978) . . . . . . . .14 Scherbyn v. Wayne Finger Lakes Board of Cooperative Educational Services, 77 N.Y.2d 753, 570 N.Y.S.2d 474 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974) . . . . . .9 Matter of Quick v. Horn, 21 Misc.3d 1116A, 873 N.Y.S.2d 514 (NY Sup. Ct, NY County 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-11, 14 Federal Court Criminal Cases: U.S.A. v. Pendergrass, 14-CR-00329-RA (S.D.N.Y.) . . . . . . . . . . . . . . . . . . . . . . . .6 STATUTES PAGE(S) NY CPLR § 7803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 NY CPLR § 7804(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 PRACTICE COMMENTARIES Alexander, Vincent C., Practice Commentaries, CPLR § 7804, C7804:9, McKinney's Cons. Laws (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ii QUESTION PRESENTED QUESTION: Did the lower court err when it granted the Respondents-Respondents’ Cross- Motion To Dismiss the Verified Petition on the basis that the Petitioner-Appellant failed to show that his termination was made in bad faith? ANSWER: Yes, the lower court did err when it granted the Respondents-Respondents’ Cross-Motion To Dismiss the Verified Petition because, assuming all the facts in the Verified Petition are true, the Petitioner-Appellant did show that his termination was arbitrary, capricious and therefore made in bad faith. iii NATURE OF APPEAL An inmate informed then probationary correction officer, RAYMOND CASTRO (“Petitioner-Appellant”), that he had swallowed a toxic soap ball. At that point, as any correction officer would have done, probationary or not, the Petitioner-Appellant called his correction captain, Terrence Pendergrass (“Captain Pendergrass”). The rules require this notification to be made, and a captain’s intervention and authorization to call medical. In fact, the Petitioner-Appellant informed Captain Pendergrass of the complaint several times, and each time the Captain ignored him, told him not to call again, and, eventually, affirmatively ordered him not to call medical when, in front of the captain, the Petitioner-Appellant tried to call medical. The Petitioner-Appellant was not trained, just months earlier, to disobey a captain. He was trained to do the opposite. Nevertheless, the Petitioner-Appellant also informed another correction officer and a pharmacy technician of the inmate’s status, and asked them to also inform the captain, no doubt in an effort to get the captain to pay attention to the issue. Despite all that Petitioner-Appellant did to convince the captain to allow medical to be notified, the inmate died, and the Petitioner-Appellant was thereafter terminated. Accordingly, the Petitioner-Appellant brought this NY CPLR Article 78 proceeding to challenge DR. DORA SCHRIRO’s (“Schriro”), Correction Commissioner of the New York City Department of Correction, THE NEW YORK CITY DEPARTMENT OF iv CORRECTION’s (“DOC”), and THE CITY OF NEW YORK’s (“City”) (collectively “Respondents-Respondents”) decision to terminate him during his probationary status as a correction officer. The lower court granted the Respondents-Respondents’ Cross-Motion To Dismiss the Verified Petition finding that the Petitioner-Appellant did not show his termination to have been arbitrary, capricious and therefore made in bad faith. This appeal ensued. As more fully explained below, this Court should reverse the lower court’s decision. v STATEMENT OF RECORD FACTS The Respondents-Respondents made a Cross-Motion to Dismiss the Verified Petition. R. 65-75. Accordingly, the following facts, which were alleged in the Verified Petition, are deemed to be true. On or about December 22, 2011, Petitioner- Appellant began his employment with the DOC as a correction officer after successfully competing in an open competitive civil service examination, passing numerous mental and physical tests, and undergoing a thorough background investigation and training in the DOC Academy. R. 13 at ¶ 5. From that time, and until his termination on or about July 19, 2013, he was a probationary correction officer. Id. On August 17, 2012, Petitioner-Appellant was assigned to the Mental Health Assessment Unit (“MHAU”) at the George R. Vierno Center (“GRVC”) on Riker’s Island. R. 13 at ¶ 9.1 On that day, Petitioner-Appellant was assigned to housing area 11A, which had twenty five cells, and was on the first tier, and a second officer was assigned to housing area 11AA, which also had twenty five cells, and was on the second tier. R. 14 at ¶ 11. During Petitioner-Appellant’s tour, there was one supervising captain for his area, who would be a correction officer’s immediate supervisor, Captain Pendergrass. R. 14 at ¶ 12; R. 19. Accordingly, a correction 1The MHAU is a unit to where the Respondents-Respondents send inmates who are under mental observation, and also have a disciplinary history. These particular inmates are sent there for housing in traditional cells. Id. at ¶ 10. 1 officer was required to accept instruction from captains in the discharge of their duties. R. 14 at ¶ 12; R 20. Petitioner-Appellant’s duties included the care, custody, and control of the inmates therein. R. 14 at ¶ 13. To those ends, Petitioner-Appellant regularly toured the area where inmates were housed. Id. At some point prior to the Petitioner-Appellant’s 3:00 p.m. to 11:00 p.m. shift, during the 7:00 a.m. to 3:00 p.m. shift, the toilets in some of the cells backed-up causing water to flood into at least some of the individual cells and into the area in front of the cells, an event which was common in that area. R. 14 at ¶ 14. At some point during his shift, Petitioner- Appellant began his tour of the cells. R. 14 at ¶ 15. During his tour, Inmate Jason Echevarria, who was in his cell, told Petitioner-Appellant that he swallowed a soap ball, which contained bleach, and wanted to see medical. Id. At that time, Petitioner- Appellant had no idea how the inmate obtained that soap ball. Id. Petitioner-Appellant then informed the “bubble officer” of what the inmate said because Petitioner- Appellant’s post does not have a phone, and therefore he could have done nothing further at that point. R. 14 at ¶ 16. That officer informed Petitioner-Appellant that the captain was about to tour the area. Id. Moments later, in order to obtain permission from Captain Pendergrass to contact medical, or to otherwise obtain instruction from him, the Petitioner-Appellant informed Captain Pendergrass of what Inmate Echevarria said. R. 14-15 at ¶¶ 17-18. 2 Having graduated the academy just about 18 months prior, and still a probationary employee, as Petitioner-Appellant was trained to do, he contacted a supervisor, which is the normal and required protocol in these situations. Id. Specifically, DOC Rule 6.10.030 requires a correction officer to inform a captain when he believes an inmate may harm himself (e.g. swallow soap to harm himself). R. 15 at ¶ 18, R. 21; R. 22 - DOC Rule 7.05.090 (requiring a correction officer to inform his captain of any abnormal conditions that may indicate suicidal tenancies). Or, more to the point, DOC Directive 4516(IV)(A) requires the Petitioner-Appellant to inform the captain of an inmate’s complaint of an injury. R. 15 at ¶ 18, R. 23-24. And, DOC Directive 5001R(III), (IV)(A), and (V) further require the tour commander, who was Captain Pendergrass at that time, to notify the proper authorities regarding an inmate’s illness. R. 15 at ¶ 18, R. 36-47. Captain Pendergrass instructed Petitioner-Appellant that there was no need to contact medical, and did not authorize such contact. R. 15 at ¶ 19. In fact, Captain Pendergrass instructed his subordinate, Petitioner-Appellant, “don’t call me if you have live, breathing bodies. Only call me if you need an extraction, or if you have a dead body. Tell him [the inmate] to hold that”, or used words to that affect. Id. Sometime thereafter, Petitioner-Appellant began another tour of the area during which he noticed vomit in Inmate Echevarria’s cell. Id. at ¶ 20. Again, pursuant to the protocol, 3 Petitioner-Appellant informed his superior, Captain Pendergrass, who was inside of the bubble, of his observations. Id. Again, Petitioner-Appellant does not have a phone at his post; rather, the bubble officer is the one who communicates a complaint by phone. Notwithstanding, since Captain Pendergrass was in the bubble, he informed the Petitioner-Appellant that he did not authorize any further action, including contacting medical, and further instructed Petitioner-Appellant to tell the inmate to “[h]old it”, or used words to that affect. Id. at ¶ 21. Within one hour thereafter, a pharmacy technician and another correction officer began medical rounds to provide certain inmates with medication. Id. at ¶ 22. The pharmacy technician informed Petitioner- Appellant that she noticed that Inmate Echevarria needed medical attention, or used words to that affect. Id. Petitioner-Appellant said that he would notify the captain, and that she should do the same as well. Id. Petitioner-Appellant then went to Captain Pendergrass along with the escort officer, who was escorting the pharmacy technician, and CO Lizarte who informed Captain Pendergrass that the inmate claimed he ingested a soap ball with bleach and needed medical attention. R. 16 at ¶ 23. Captain Pendergrass ordered CO Lizarte to write a report. Id. At that time, Petitioner-Appellant attempted to contact medical as he was in the bubble, but could not find medical’s number on a old and faded phone contact list. Id. at ¶ 24. Captain Pendergrass approached Petitioner-Appellant and said 4 “did you contact anyone of significance”, or used words to that affect. Id. Petitioner- Appellant informed him that he was looking for the extension to medical. Id. Captain Pendergrass then ordered Petitioner-Appellant to take his post, where there was no phone. Id. at ¶ 25. Petitioner-Appellant again informed him that he was looking for medical’s number. Id. Captain Pendergrass then said “I am giving you a direct order to take your post”, or used words to that affect. Id. Petitioner-Appellant had to, and did, comply with his captain’s order. Id. After Petitioner-Appellant manned his post, where there was no phone, CO Lizarte arrived at Petitioner-Appellant’s desk with a blank report form, and began to write his report. Id. at ¶ 26. A moment later, Captain Pendergrass asked CO Lizarte if he was sure he heard the inmate correctly, to which he respond yes. Id. Captain Pendergrass then said that “I believe you heard him incorrectly. I just spoke to the nurse and she did not hear that at all”, or used words to that affect. Id. Captain Pendergrass then ordered CO Lizarte to follow him, and they both then left the area. Id. At some point thereafter, Petitioner-Appellant noticed that Captain Pendergrass went to Inmate Echevarria’s cell, stayed there for a few seconds, and then left the area again. R. 17 at ¶ 27. Thereafter, Petitioner-Appellant was relieved from his post at 11:30 p.m. Id. at ¶ 28. The next day, Petitioner-Appellant was informed by another 5 officer that Inmate Echevarria died after Petitioner-Appellant was relieved from his post. Id. at ¶ 29. In the days and months after incident, Petitioner-Appellant was ordered to verbally inform the DOC of his involvement with Inmate Echevarria, and then was interviewed by the DOC, US Attorney’s Office, the City’s Department of Investigation, and the Manhattan District Attorney’s Office. Id. at ¶ 30.2 On or about July 19, 2013, Petitioner-Appellant was terminated for, upon information and belief, “misconduct” surrounding the death of Inmate Echevarria. Id. at ¶ 31. Petitioner-Appellant has exhausted his administrative remedies. Id. at ¶ 32. 2The United States Attorney’s office filed a Criminal Complaint against Captain Pendergrass alleging that his conduct was “deliberate indifference to a serious medical need, which deprivation resulted in bodily injury to a person, to wit, while working as a captain in the New York City Department of Correction assigned to Rikers (sic) Island in the Bronx, New York, PENDERGRASS knowingly ignored and instructed others to ignore inmate Jason Echevarria's need for medical help, which resulted in bodily injury to Echevarria.” U.S.A. v. Pendergrass, 14-CR-00329-RA, Docket No. 1 (S.D.N.Y.). He was found guilty. Id. at Docket Entry dated “12/17/2014”, “JURY VERDICT as to Terrence Pendergrass (1) Guilty on Count 1. (jbo) (Entered: 12/17/2014)”. Respectfully, this matter should be given judicial notice. 6 PROCEDURAL HISTORY On November 7, 2013, the Petitioner-Appellant initiated this NY CPLR Article 78 proceeding by Verified Petition. R. 10-51. On or about January 2, 2014, the Respondents-Respondents made their Cross-Motion to Dismiss the Verified Petition. R. 65-75. The Petitioner-Appellant opposed that Cross-Motion. R. 76-90. And, the Respondents-Respondents replied to the opposition. R. 91-97. By Memorandum Decision dated June 17, 2014, the lower court dismissed the Verified Petition. R. 6-9. By Notice of Appeal dated September 16, 2014, the Petitioner-Appellant appealed the lower court’s decision. R. 1-9. 7 ARGUMENT POINT I THE RESPONDENTS-RESPONDENTS’ DECISION TO TERMINATE PETITIONER-APPELLANT WAS ARBITRARY, CAPRICIOUS, AND MADE IN BAD FAITH The Petitioner-Appellant brought one Count against the Respondents- Respondents. R. 17 at ¶¶ 33-36. Specifically, that their decision to terminate him was arbitrary and capricious, and made in bad faith pursuant to NY CPLR § 7803(3) because their allegations are without a sound basis in reason, and based on erroneous facts. Id. NY CPLR § 7803(3) provides: The only questions that may be raised in a proceeding under this article are: * * * 3. Whether 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, including abuse of discretion as to the measure of mode of penalty or discipline imposed; (emphasis added). Thus, assuming all the facts in the Verified Petition are true, the issue here is whether the Petitioner-Appellant showed that the Respondents-Respondents’ decision to terminate him was arbitrary, capricious and therefore made in bad faith. As more fully explained below, respectfully, this Court should answer that question in the affirmative. 8 We start with what “arbitrary and capricious” means. In Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974), the Court of Appeals held: the arbitrary or capricious test chiefly ‘relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.’ (1 N.Y.Jur., Administrative law, § 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. 34 N.Y.2d at 231, 356 N.Y.S.2d at 839 (emphasis supplied); see also Scherbyn v. Wayne Finger Lakes Board of Cooperative Educational Services, 77 N.Y.2d 753, 570 N.Y.S.2d 474 (1991) (dismissal of probationary typist found to be arbitrary and capricious because it was without sound basis in reason and without regard to the facts.). Stated somewhat differently, the issue therefore is whether the Respondents- Respondents’ decision to terminate the Petitioner-Appellant was without a foundation in fact because it was based on erroneous facts or they ignored the facts. Pell, supra. at 231. In dismissing the Verified Petition, the lower court found, in sum and in substance, “Petitioner has not shown, or even alleged, that the investigations that led to his dismissal eleven months following the incidents at issue were affected by bad faith or another improper reason.” R. 8-9. This holding suggests, if not directly requires, that the Petitioner-Appellant allege and then also show that the investigations 9 were affected by bad faith or other improper reason, and therefore, if an investigation is not affected by bad faith or other improper reasons, it necessarily follows that the conclusion was valid. Stated somewhat differently, if the investigation was not tainted with bad faith, no matter what they found, the conclusion must not have ignored the facts or based on erroneous facts. Such a stringent holding cannot stand. While lower court disagreed with its application to the case at bar, the Petitioner- Appellant posits to this Court that a belief that a correction officer engaged in wrongdoing amounts to arbitrary, capricious and bad faith conduct on their part. Quick v. Horn, 21 Misc.3d 1116A, 873 N.Y.S.2d 514 (NY Sup. Ct, NY County 2008). There, the petitioner, also a probationary city correction officer who was terminated, alleged that her termination was in bad faith, without foundation in fact and without a sound basis in reason, and taken without regard to the facts. R. 77-79. She argued that the respondents’ belief that (1) she lost her shield and identification; (2) allowed her ex-boyfriend, who was a parolee, to posses those items; (3) retrieved those items from the 79th precinct; and (4) lied to the respondents about the above were all untrue. Id. The respondents, as they did here, cross-moved to dismiss the verified petition, and therefore those allegations were also deemed to be true. Id. By interim order dated May 29, 2007, the Supreme Court denied the respondents’ cross-motion to dismiss and directed them to serve and file an answer on the ground that petitioner had adequately 10 pleaded that the respondents’ decision was without a sound basis in reason, taken without regard to the facts, and based on erroneous facts. R. 78-79; see Quick, 21 Misc.3d 1116A, 873 N.Y.S.2d 514 at fn 1. The Supreme Court reasoned that “[t]aking the allegations of the petition as true, including that petitioner's termination was based on ‘a set of erroneous facts and without regard to the true facts,' petitioner has met her burden at this juncture of setting forth a cause of action alleging respondents' bad faith or arbitrary action.” R. 78. As in Quick, the Petitioner-Appellant alleged that (1) the Respondents- Respondents’ decision to terminate him was without a sound basis in reason, taken without regard to the facts, and based on erroneous facts; and (2) the Respondents- Respondents’ belief that he engaged in some misconduct related to the death of Inmate Echevarria is unreasonable and not founded in any basis of fact and based on a completely and utterly erroneous set of facts. There are several facts, which are deemed true, as alleged in the Verified Petition, and which show that the Respondents- Respondents’ decision was unreasonable and not founded in any basis of fact. First, Petitioner-Appellant informed the “bubble officer” (R. 14 at ¶ 16), and Captain Pendergrass of the inmate’s comments. Id. at ¶ 17. Second, Captain Pendergrass instructed Petitioner-Appellant that there was no need to contact medical, and did not authorize such contact. R. 15 at ¶ 19. Third, Captain Pendergrass instructed 11 Petitioner-Appellant, “"don't call me if you have live, breathing bodies. Only call me if you need an extraction, or if you have a dead body”. R. 15 at ¶ 20. Fourth, sometime later Petitioner-Appellant again informed Captain Pendergrass, who was inside of the bubble, of his observations, and the Captain told him to have the inmate “hold it”. R. 15 ¶ 21. Fifth, Petitioner-Appellant told the pharmacy technician and another officer, both of whom noticed that Inmate Echevarria needed medical attention, that he would notify the Captain again, and that they should do the same. R. 15-16 at ¶¶ 21-22. Sixth, the Petitioner-Appellant then went to Captain Pendergrass along with the escort officer, CO Lizarte who informed Captain Pendergrass that the inmate claimed he ingested a soap ball with bleach and needed medical attention. R. 16 at ¶ 23. And, when Petitioner-Appellant attempted to contact medical, Captain Pendergrass said “I am giving you a direct order to take your post”, or used words to that affect. R. 16 ¶¶ 24-25. Given the above, none of those facts that Petitioner-Appellant alleges suggests that he did anything wrong. In fact, he followed his orders and the rules, and that fact cannot be ignored. Likewise, considering the Petitioner-Appellant was a probationary employee, he was absolutely not in any position to disobey the captain's orders not to call medical, and to man his post. In fact, the Respondents-Respondents’ own rules state that all Petitioner-Appellant could, and needed to have done was to inform his 12 captain of what he inmate said, and to then follow the captain’s orders at that time. R. 19, 20, 21, 22, 23-34, 35-46. Specifically, Rule 6.10.030 states that the Petitioner- Appellant is required to inform a captain when he believes an inmate may harm himself. R. 15 at ¶ 18, R. 21. Likewise, Rule 7.05.090 requires a Petitioner-Appellant to inform his captain of any abnormal conditions that may indicate suicidal tenancies. R. 22. Directive 4516(IV)(A) requires the Petitioner-Appellant to inform his captain of an inmate’s complaint of an injury. R. 15 at ¶ 18, R. 24-25. Last, DOC Directive 5001R(III), (IV)(A), and (V) further require the tour commander (captain) to notify the “proper authorities” regarding an inmate’s illness, not the Petitioner-Appellant. R. 15 at ¶ 18, R. 36-37. The Petitioner-Appellant complied with all of these rules. While there was some misconduct surrounding the events of the inmate’s tragic death, which is clear of what Captain Pendergrass did, it was not at the hands of the Petitioner- Appellant. 13 POINT II ALTERNATIVELY, AND RESPECTFULLY, THE LOWER COURT SHOULD HAVE DENIED THE CROSS-MOTION TO DISMISS, AND ORDERED A HEARING PURSUANT TO NY CPLR § 7804(H) TO RESOLVE DISPUTED ISSUES OF FACT The Petitioner-Appellant also sought a hearing to resolve any disputed facts. R. 10, 18, 88-89. NY CPLR § 7804(h) requires a hearing where the Court finds disputed issues of fact. NY CPLR § 7804(h) states, “if a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith.” If the relevant facts in an Article 78 proceeding are in dispute, a trial is necessary to resolve them. Alexander, Vincent C., Practice Commentaries, CPLR § 7804, C7804:9, McKinney's Cons. Laws (1994). “Once such facts are known, the court can then decide whether the denial was arbitrary and capricious, i.e., lacked a rational basis, foundation in fact, etc.” Id. (citations omitted); see, e.g., Donofrio v. Hastings, 60 A.D.2d 989, 401 N.Y.S.2d 935 (4th Dept. 1978) (holding that a trial was necessary to determine whether a civil service employee was denied promotion for an improper reason); Quick, 21 Misc.3d 1116A, 873 N.Y.S.2d 514 at * 9. Here, there may be questions of fact. If, in fact (1) the Petitioner-Appellant informed the “bubble officer” and Captain Pendergrass several times of the inmate’s statements to him; (2) Captain Pendergrass instructed Petitioner-Appellant that there 14 was no need to contact medical, and did not authorize such contact; (3) Captain Pendergrass instructed Petitioner-Appellant not to call him unless he has dead bodies; (4) Petitioner-Appellant again informed Captain Pendergrass of his observations, and the Captain told him to have the inmate "hold it"; (5) the Petitioner-Appellant asked the pharmacy technician and another officer to notify the captain and that he would do so as well; (6) then told Captain Pendergrass along with the escort officer that the inmate claimed he ingested a soap ball with bleach and needed medical attention; and (7) Petitioner-Appellant attempted to contact medical but was told not to by Captain Pendergrass and was also given a "direct order" to take his post. As described in the Verified Petition, Petitioner-Appellant did all of the above. A trial, during which testimony and documentary evidence would be elicited from the now former captain and felon, the escort officer, the pharmacy technician, and the Petitioner-Appellant, would resolve any crucial issue of fact. 15 CONCLUSION As a result of the above, the lower court’s decision should be reversed. Dated: March 12, 2015 New York, NY KOEHLER & ISAACS LLP Attorneys for the Petitioner-Appellant 61 Broadway, 25th floor New York, NY 10006 (917) 551-1300 By: ________________________ Liam L. Castro, Esq. 16 PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing Brief was prepared on a computer using WordPerfect. Type. A proportionally spaced typeface was used as follows: Name of Typeface: Times New Roman Point Size 14 Spacing: Double Word Count. The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3659. Dated: March 12, 2015 New York, NY KOEHLER & ISAACS LLP Attorneys for the Petitioner-Appellant 61 Broadway, 25th floor New York, NY 10006 (917) 551-1300 By: ________________________ Liam L. Castro, Esq. 17 NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK In the Matter of the Application of the RAYMOND CASTRO, Petitioner, PRE-ARGUMENT STATEMENT Index No. 101472113 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -- against -- DR. DORA SCHRIRO, Con·ection Commissioner of the New York City Department of Correction, THE NEW YORK CITY DEPARTMENT OF CORRECTION, and THE CITY OF NEW YORK, Respondents. X PLEASE TAKE NOTICE that the Petitioner, for his pre-argument statement, alleges as follows: 1. The full names of the original parties and the names, addresses and telephone numbers of counsel for the Petitioner and Respondents are as follows: Petitioner: Petitioner's Attorney: Respondents: Respondents' Attorney: RAYMOND CASTRO KOEHLER & ISAACS LLP By: Liam L. Castro, Esq. 61 Broadway, 25th Floor New York, NY 10006 (917) 551-1333 DR. DORA SCHRIRO, Commissioner of the New York City Department of Correction, THE NEW YORl( CITY DEPARTMENT OF CORRECTION, and THE CITY OF NEW YORK. ZACHARY W. CARTER, ESQ., CORPORATION COUNSEL By: Michael F. Fleming, Assistant Corporation Counsel Office of the Corporation Counsel City ofNew York 100 Church Street, Room 2-169 New York, NY 10007 There has been a change in the parties and their counsel in this proceeding. Zachary W. Carter, Esq. is Corporation Counsel for the City ofNew York. Joseph Ponte is Commissioner ofthe New York City Department of Corrections. 2. This is an appeal from a Decision and Order of the Supreme Court, County of New York (Huff, Carol JSC.) entered in the office of the Clerk of the County ofNew York on August 21,2014. No other appeal is pending in this action. 3. Petitioner brought this proceeding pursuant to NY CPLR Article 78 challenging the Respondents decision to terminate his employment as a probationary correction officer. 4. The Court below found that the Respondents determination was not arbitrary and capricious. 5. Petitioner seeks a reversal of this Decision and Order. Dated: September 16, 2014 New York, NY 2 Respectfully submitted, KOEHLER & ISAACS LLP