Labor & Employment Law

NYC Civil Service Commission reinstates probationer without back salary

By Harvey Randall, Esq.

NYC Civil Service Commission reinstates probationer without back salary
Matter of Allocca v Kelly, 44 A.D.3d 308, Appellate Division, First Department

A New York City probationary police officer, James Allocca, was dismissed from the position before the end of his probationary period.

The reason given for Allocca?s termination: ?he committed fraud on his application.?

Allocca, however, appealed his dismissal to the New York City Civil Service Commission. The Commission held a hearing and decided that Allocca should be reinstated to his former position as a probationary police officer.

When Allocca reported for the mandatory medical examination, the Department found that he was not medically qualified for reinstatement

Following this rejection, Allocca sued the City seeking a court order directing his reinstatement to his position as a police officer with retroactive pay and benefits, relying on the Commission?s earlier determination directing that he be reinstated to his former position.

While his lawsuit was pending, the Department reevaluated Allocca?s medical records and determined that he was qualified for reinstatement. The Department notified Allocca of its findings but he refused its offer to reinstate him to his former position.

Ultimately, State Supreme Court dismissed Allocca?s petition seeking reinstatement and back pay. The Appellate Division affirmed the lower court?s decision.

The Appellate Division ruled that Supreme Court ?properly denied the petition and dismissed the proceeding? after Allocca refused the only relief to which he was entitled - reinstatement.

The decisions notes that while the Commission directed Allocca?s reinstatement to his former position as a probationary police officer, it did not award him retroactive salary and benefits.

Indeed, said the court, ?The Commission was without authority to issue such an award,? citing Matter of Department of Personnel of the City of New York v New York City Civil Service Commission, 79 NY2d 806.

Full post as published by New York Public Personnel Law on May 01, 2008 (boomark / email).