Thomas v. Condon

117 A.D.3d 641, 986 N.Y.S.2d 332

Opinion

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered July 25, 2013, which denied the petition brought pursuant to CFLR article 78 seeking to annul the determination of respondent Richard J. Condon, Special Commissioner of Investigation for the New York City School District, dated November 29, 2011, that petitioner was not a whistle-blower pursuant to the Administrative Code of the City of New York § 12-113, and dismissed the proceeding, unanimously affirmed, without costs.

The matter is not moot, despite petitioner’s retirement, because he alleges that he lost in excess of $27,000 in stipends from a fellowship program as a result of respondents’ adverse personnel actions, in violation of Administrative Code § 12-113.

However, we find that the court properly determined that petitioner’s pre-May 3, 2008 complaints were not reported by him to the appropriate officials, pursuant to Administrative Code § 12-113 (a) (6). Moreover, respondent’s determination that petitioner’s post-May 3, 2008 complaints did not result in adverse personnel actions was rational and neither arbitrary nor capricious, in that the filing of an inaccurate report of misconduct against an employee is not an adverse personnel action, and petitioner’s temporary reassignment resulted from earlier sustained charges of misconduct (see Administrative Code § 12-113 [a] [1]).

Concur—Tom, J.E, Moskowitz, DeGrasse, Richter and Kapnick, JJ.