In the Matter of Raymond Castro, Respondent,v.Dora Schriro,, et al. Appellants.BriefN.Y.May 30, 2017RICHARD J. KOEHLER* STEVEN ISAACS* ________ MICHAEL R. BERTSCHI* LIAM L. CASTRO * RENA C. DAWSON* CYNTHIA DEVASIA*+" GABRIEL GREENBERG* JOEY JACKSON* DAWN K. KELLY*+ DAVID KIRSCH* MERCEDES M. MALDONADO * JULIE ORTIZ* FELICIA PINTO* ANDREW ROWE* JULIE S PEARLMAN SCHATZ*+ ANN M. SCHNEIDER*+ ELYSE SILVERMAN*+ STEPHANIE A. SWINTON* PETER C. TROXLER* GREGORY WATFORD* HOWARD G. WIEN* KOEHLER & ISAACS LLP ATTORNEYS AT LAW 61 BROADWAY, 25TH FLOOR NEW YORK, NY 10006 Tel: (917) 551 1300 Fax: (917) 551 0030 www.koehler-isaacs.com April 4, 2017 NEW JERSEY OFFICE 20 Ferry Street, Suite 1 Newark, NJ 07105 Tel: (862) 240-1900 Fax: (973) 878-2488 OF COUNSEL RAYMOND J. AAB* MARK FONTE*+ HON. DAVID FRIED* DALLIN M. FUCHS*+ JESSICA SALLES* BRIAN SCHWARTZ*+ BARRY WASHOR* *Admitted in New York +Admitted in New Jersey "Manages NJ Practice WRITER’S DIRECT DIAL (917) 551-1333 lcastro@koehler-isaacs.com By Overnight Mail Hon. John P. Asiello, Chief Clerk and Legal Counsel New York State Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re.: Matter of Castro v. Schriro, et al.; APL-2016-00224 Dear Hon. Asiello: We are the attorneys for Raymond Castro (“Castro”), the Petitioner-Respondent in the above proceeding. We submit this letter-brief on Castro’s behalf, and pursuant to this Court’s letter dated December 27, 2016. Preliminary Statement Castro is a former New York city probationary correction officer who filed this NY CPLR Article 78 proceeding to challenge Dr. Dora Schriro's, Correction Commissioner of the New York city Department of Correction, the New York City Department of Correction's, and the City of New York's (collectively the "City") decision to terminate him. Castro alleged in his Verified Petition that an inmate told him he swallowed a toxic soap ball. Castro then verbally and in person informed his partner, who was in the control room next to Castro’s post, and then moments later informed correction captain Terrence Pendergrass ("Captain Pendergrass"). Castro was on his post on a cell tier, which did not have a phone, and therefore all he could have done at that point was to inform Captain Pendergrass, which he did several times, and then later informed several other correction officers and a pharmacy technician of the inmate's complaint, and asked them for help. Despite Castro’s efforts to inform his commanding officer and fellow correction officers and a technician to get them to call for medical, the inmate died. Castro was thereafter summarily terminated, and this proceeding followed. Before the Supreme Court, New York County, the City made a Cross-Motion to Dismiss the Verified Petition, instead of filing a Verified Answer. The consequence of that filing was that all the facts alleged in the Verified Petition were deemed true, and all inferences would have been and were drawn in Castro’s favor. The Supreme Court granted the City’s Cross-Motion to Dismiss finding that Castro did not show his termination to have been arbitrary, capricious and therefore made in bad faith. On Appeal, the Appellate Division, First Department reversed and remanded the proceeding back to the lower court. In that 3-to-1 decision, assuming all the facts to be true and in a light most favorable to Castro, the Appellate Division found that the Petitioner-Appellant alleged enough in the Verified Petition to survive a Cross-Motion to Dismiss. In its submission to this Court, the City argued the Appellate Division did not follow established Court of Appeals precedent that probationary employees may be terminated for any or no reason, except for an illegal or unconstitutional reason. As Castro argues below, the Appellate Division’s decision was well in-line with established precedent when it held that Castro alleged enough in the Verified Petition, assuming those facts to be true, to conclude at this stage the City’s decision was arbitrary and capricious; however, since the City made a Cross-Motion to Dismiss, the City may now submit a Verified Answer, which is a more substantive response to Castro’s allegations. As the Appellate Division recognized, once the City files a Verified Answer, the facts of the case as determined by the lower Court can be established sufficient to make a final determination whether the Petitioner-Appellants' termination was arbitrary and capricious. However, to this point, the Appellate Division, citing this Court’s precedent, found that Castro alleged enough to survive a Cross-Motion to Dismiss. The City also argued the Appellate Division’s decision blurred the distinction between probationary and tenured civil service employment because the City now has to respond to the allegations in the Verified Petition. As more fully explained below, 2 the Appellate Division’s majority decision does not blur any distinction between probationary and tenured civil service employment merely by having the City file a Verified Answer to the Verified Petition. It is beyond dispute that Castro was and will not entitled to a due process hearing before his termination, which a tenured employee would receive. Likewise, as the Appellate Division ensured was true, the standard in an Article 78 proceeding remains whether the decision to terminate Castro was arbitrary and capricious, and not whether there was just cause to terminate his employment as it would be in a due process hearing for a tenured employee. The fact is that the City’s decided to make a Cross-Motion to Dismiss yet, as they have many times before in other Article 78 proceedings like this one, could have instead submitted a Verified Answer. The City makes too much an issue about filing a Verified Answer. For all of these reasons, and as more fully explained below, this Court should affirm the Appellate Division’s decision. Summary of the Record Facts In the proceeding before the Supreme Court, the City made a Cross-Motion to Dismiss the Verified Petition. R. 65-75. As a result, the facts alleged in the Verified Petition are deemed true, and reviewed in the light most favorable to Castro. On August 17, 2012, eight short months out of the Department of Corrections academy, Castro was assigned to the Mental Health Assessment Unit ("MHAU") on Riker's Island. R. 13 at ¶ 9. During his 3:00 p.m. to 11:00 p.m. shift, Captain Pendergrass was the only supervising captain for that area, and in the chain of command one rank above correction officer. R. 14 at ¶ 12; R. 19. During his shift, Castro toured the cell area, within which inmates were housed, and Inmate Jason Echevarria told him that he swallowed a soap ball. R. 14 at ¶ 15. Id. Castro then informed the "bubble officer" (a correction officer who has access to a phone) what that inmate said as Castro’s post does not have a phone, and therefore he could have done nothing further at that point. R. 14 at ¶ 16. In fact, Castro is not permitted to leave his area without a relief officer taking over that post, or with the permission of a supervisor. Moments later, when Captain Pendergrass arrived, Castro informed him what Inmate Echevarria said. R. 14-15 at ¶¶ 17-18. Captain Pendergrass instructed Castro that there was no need to contact medical. R. 15 at ¶ 19. Since Castro’s post did not have a phone, only the bubble correction officer or the Captain could have called medical. Captain Pendergrass instructed Castro, "don't call me if you have 3 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 later during his shift, Castro began another tour of the cell area when he noticed, for the first time, vomit in Inmate Echevarria's cell. Id. at ¶ 20. Again, pursuant to the protocol as described above, and in footnote one of the Verified Petition, Castro informed Captain Pendergrass, who was inside of the bubble with the phone, of his observations. Id. Notwithstanding the fact that Castro did not then have a phone at his post, and since Captain Pendergrass was in the bubble, the Captain informed Castro that he did not authorize any further action, including contacting medical, and further instructed Castro to tell the inmate to "[h]old it", or used words to that affect. Id. at ¶ 21. It should be beyond dispute that Captain Pendergrass or the correction officer in the bubble could have called medical at that point as they have access to a phone. Within one hour after this exchange, a pharmacy technician and another correction officer (now the third correction officer who Castro informed) began medical rounds to provide certain inmates in Castro’s area with medications. Id. at ¶ 22. The pharmacy technician informed Castro that she noticed Inmate Echevarria needed medical attention, or used words to that affect. Id. Castro said he would notify the Captain, and implored her to do the same as well. Id. Again, Castro still did not have a phone on his post. And, both that escort officer and the technician, who are mobile, could have access to a phone by going in to the bubble. Castro then saw, and explained to, Captain Pendergrass along with the escort officer, who was escorting the pharmacy technician, and CO Lizarte (now a fourth correction officer) 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, Castro attempted to contact medical as he was at that point permissibly in the bubble with the other officers on his post, but could not find medical's number on a old and faded phone contact list. Id. at ¶ 24. Captain Pendergrass approached Castro and said "did you contact anyone of significance", or used words to that affect. Id. Castro stated he was looking for the extension to medical. Id. Captain Pendergrass then ordered Castro to take his post, where there was no phone. Id. at ¶ 25. Castro again informed the Captain 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. After Castro returned to his post, where there was no phone, CO Lizarte arrived 4 at Castro’s desk with a blank report form, and began to write his report as the Captain instructed. 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. The next day, after a correction officer had relieved Castro at the end of his shift, Castro was informed that Inmate Echevarria died. Id. at ¶ 29. In the days and months after incident, Castro was ordered to verbally inform the Department of Correction of his involvement with Inmate Echevarria, and was also interviewed by the US Attorney's Office, the City's Department of Investigation, and the Manhattan District Attorney's Office. Id. at ¶ 30. On or about July 19, 2013, Castro was terminated for, upon information and belief, "misconduct" surrounding the death of Inmate Echevarria. Id. at ¶ 31. The Appellate Division’s Decision The Appellate Division began by stating the law concerning probationary terminations. Specifically, the Court stated, “A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason. . . . The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason.” 140 A.D.3d 644, 647 (1st Dept. 2016) citing Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763, 697 N.Y.S.2d 869, 720 N.E.2d 89 (1999); Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321, 812 N.Y.S.2d 522 (1st Dept. 2006). As explained by this Court in Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974),"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.” (Emphasis supplied) Applying that law, the Appellate Division held that, assuming all the facts as alleged in the Verified Petition as true, Castro alleged enough to show the City’s decision was arbitrary, capricious and made in bad faith, and as Pell held, one made 5 without sound basis in reason and is generally taken without regard to the facts. Id. Pointing to the Verified Petition, the Court found that Castro “provides a factual predicate for his allegations. In sum and substance, the petition avers that despite serving as a correction officer who acted in complete accord with DOC's rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation with the investigation of inmate Echevarria's death, which lead to Captain Pendergrass' indictment, Officer Castro was inexplicably terminated. For instance, with regard to his activities in response to the inmate's statement that he had harmed himself by swallowing a soap ball, Officer Castro alleges that he acted pursuant to ‘normal protocol’ and that he was ‘trained to [ ] contact a supervisor in these situations.’ . . . Significantly, to support his allegation that these actions were made pursuant to and consistent with DOC rules and proper protocols, petitioner cites to DOC Rules, 610.030 and 7.05.090 and DOC Directives **48 4516(IV)(A) and 5001R(III), (IV)(A) and (V).1.” Id. at 647-648. Stated a different way, all the Appellate Division held was that it would be arbitrary, capricious, and without regard to the facts or a basis in reason to, assuming the facts as true, terminate Castro for not only complying with the Department of Correction’s rules, making the appropriate notifications, but also being practically unable to make any phone calls to medical as his post did not have a phone. He, and not the several other correction officers who knew of the inmate’s condition, was arbitrarily terminated. Argument Castro argued to the two courts below that the City’s 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.” Thus, assuming all the facts in the Verified Petition are true, the issue here is whether the Castro alleged in the Verified Petition enough to show that the City’s decision to terminate him was arbitrary, capricious and therefore made in bad faith. This Court in Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974), 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 6 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.). The City argued that the Appellate Division’s decision conflicts with binding Court of Appeals precedent governing the standard terminated probationary employees must meet to challenge that termination. City’s Letter Brief at pp. 9-10, 17-20. They reason this Court's majority relied on speculation instead of evidence. City’s Letter at p. 17. As explained below, and for several reasons, the Appellate Division’s decision was consistent with this Court’s precedent. First, the Appellate Division followed the seminal Court of Appeals precedent in holding that Castro alleged enough to survive a Cross-Motion to Dismiss. This Court in the seminal case Pell held that "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. The Appellate Division relied on this Court’s decision in Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763 (1999), which held that a probationary employee must show that his termination was one made "in bad faith or for an improper or impermissible reason"; see also Scherbyn v. Wayne Finger Lakes Board of Cooperative Educational Services, 77 N.Y.2d 753 (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.). 140 A.D.3d at 647 Here, because the City made a Cross-Motion to Dismiss, instead of filing a Verified Answer, all the facts in the Verified Petition are deemed to be true. In assuming all the facts as true, this Appellate Division recognized that Castro met that burden a because Castro alleged and provided Department of Correction’s rules which show that he acted pursuant to "normal protocol", detailed for the Court how he acted pursuant to protocol, and that he was "trained to [ ] contact a supervisor in these situations." Id. Likewise, the Appellate Division also found significant that Castro alleged he acted "pursuant to the protocol ... of inform[ing] his superior, Captain Pendergrass, of his observations", "was acting in "compli[ance] with his captain's order" and Department rules 610.030 and 7.05.090 and DOC Directives 48 7 4516(IV)(A) and 5001R(III), (IV)(A) and (V). Id. at p. 9. Thus, the Petitioner-Appellant did not make conclusory statements that he acted pursuant to protocol. Because the Respondents-Respondents made a Cross-Motion to Dismiss, the Court held, "Considered as a whole, these uncontradicted allegations present a substantial issue of bad faith-namely, whether petitioner's discharge was unrelated to work performance-sufficient to require a denial of the pre-answer motion to dismiss." Id. at 647-648. In so holding, at this procedural stage of this proceeding, this Court followed not only this Court’s precedent as explained above, but also was in-line with its own in Matter of Higgins v. La Paglia, 281 A.D.2d 679 (3d Dept.2001) (a hearing was directed regarding the termination of a probationary correction officer where an issue was raised as to good faith because of, inter alia, conflicting evaluation reports), appeal dismissed, 96 N.Y.2d 854 (2001), and Matter of Ramos v. Department of Mental Hygiene of State of N.Y., 34 A.D.2d 925 (1st Dept.1970)(a hearing was directed because a substantial issue had been raised regarding whether the probationary employee's discharge was in reality the result of a personality conflict with a supervisor). Thus, not only was this consistent with this Court's and the Court of Appeals' precedent, but this Court's decision was not so unusual. Second, the Appellate Division did not rely on speculation instead of evidence. In that regard, the Appellate Division held, "[w]e simply hold that, at this stage of the proceedings, where DOC has not answered the petition, we are not willing to speculate as to whether petitioner's or DOC's actions were inappropriate under any standard", and "at this juncture, we construe the petition in the light most favorable to petitioner, as required on a pre-answer motion to dismiss. The reasonable inferences to be drawn from petitioner's factual allegations belie the dissent's conclusion that Officer Castro's conduct surrounding the inmate's death was "gross indifference" to the inmate's safety and constitutional rights." 140 A.D.3d 648. Thus, contrary to the City’s speculation instead of evidence argument, the Appellate Division specifically noted they declined to "speculate". Third, the Court did not hold that Castro raised an issue of bad faith because the Department did not come forward with an explanation for his dismissal as the City argued. As discussed above, relying on Castro’s version of events on a Cross-Motion to Dismiss, all the Appellate Division did was to hold that the facts alleged were enough to survive that Cross-Motion. See Quick v. Horn, 21 Misc.3d 1116A, 873 N.Y.S.2d 514 (NY Sup. Ct, NY County 2008) (denying the City's Cross-Motion to 8 Dismiss and directed them to serve and file a verified answer on the ground that petitioner had adequately pleaded that the City's decision was without a sound basis in reason, taken without regard to the facts, and based on erroneous facts). R. 78-79; 21 Misc.3d 1116A, 873 N.Y.S.2d 514 at fn 1. The City also argued the Appellate Division’s decision undermined the distinction between probationary and tenured employment because they now have to come forward with the reason why they terminated the Petitioner-Appellant in a Verified Answer. City’s Letter Brief at p. 18. However, the City very often responds to NY CPLR Article 78 petitions, such as this one, with Verified Answers within which they would admit or deny allegations, and submit their own. For example, the court in Duchinsky v. Scoppetta, 18 Misc. 3d 1141(A), 859 N.Y.S.2d 894 (Sup. Ct. 2008), was faced with an Article 78 proceeding challenging the City's decision to terminate his probationary status after a work-related injury and argued his termination was arbitrary and capricious. Id. at 1. The City filed a Verified Answer explaining their version of events, and the Court proceeded to painstakingly compared the Verified Petition to the Verified Answer throughout its decision. Id. The court found that "[i]t may well be that, notwithstanding the MRI results and Dr. Levy's opinions, termination of Petitioner as a probationary firefighter would be rational and in good faith. But the failure to consider that which is available and possibly material may itself be arbitrary and capricious, and indicate bad faith. In similar contexts, such failures have warranted rejection of affected determinations" (Id. at * 7), and the court there ordered more information. Id. Likewise, in Castillo v. Schriro, 49 Misc. 3d 774, 15 N.Y.S.3d 645 (N.Y. Sup. Ct. 2015), a probationary correction officer challenged her termination as arbitrary and capricious. Id. The City filed a Verified Answer, and the Court concluded the termination was arbitrary and capricious, and therefore ordered her reinstatement. Id. at 668. The same is true of many others. In Silva v. City of New York, 35 Misc. 3d 1202(A), 950 N.Y.S.2d 726 (Sup. Ct. 2012), the City filed Verified Answer and Court held correction officer termination was not arbitrary and capricious; in Duncan v. Kelly, 9 Misc. 3d 1115(A), 808 N.Y.S.2d 917 (Sup. Ct. 2005), aff'd, 43 A.D.3d 297, 841 N.Y.S.2d 237 (2007), aff'd, 9 N.Y.3d 1024, 882 N.E.2d 872 (2008), the City filed Verified Answer and Court held police officer termination was not arbitrary and capricious; in Cruz v. Schriro, 51 Misc. 3d 1203(A), 36 N.Y.S.3d 407 (N.Y. Sup. Ct. 2016), the City filed Verified Answer and Court ordered a hearing concerning probationary correction officer's termination to determine whether it was arbitrary and capricious. Therefore the City’s argument that having to submit a Verified Answer to explain their side of the story is not a departure from, not only the law concerning probationary employees, but also the City’s own practice before lower courts. 9 Conclusion As a result of the above, this Court should affirm the Appellate Division. Pursuant this Court’s Rule 500.11, Castro also believes this Appeal does not warrant full briefing and argument. Not only is the Appellate Division’s decision in line with this Court’s and it’s own decisions, but the briefs below have argued all that has needed to be argued. Dated: April 4, 2017 New York, NY KOEHLER & ISAACS LLP Attorneys for the Raymond Castro 61 Broadway, 25th floor New York, NY 10006 (917) 551-1300 By: ________________________ Liam L. Castro, Esq. cc: Ingrid R. Gustafsen, Esq., attorney for the City 10 Certificate of Compliance I certify that this letter brief was prepared using WordPerfect, and according to that software, it contains 4033 words in the body of the submission. _________________ Liam L. Castro, Esq. 11