Matter of Rahman v City of New York 2024 NY Slip Op 30551(U) February 21, 2024 Supreme Court, New York County Docket Number: Index No. 160076/22 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.Page 1 of 6

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 62
x
------------------------------------------------------------------- x In the Matter of the Application of HAFIZUR RAHMAN, Petitioner,

- against

- Index No

. 160076/22 DECISION AND ORDER ON MOTION # 0 0 1 THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF CORRECTION, LOUIS A. MOLINA,
as Commissioner of the City of New York Department of Correction, Respondents.

x
----------------------------------------------------------------------- x H ON. J. MACHELLE SWEETING, A.J.S.C. : Petiti o ner brings this Article 78 proceeding, seeking a judgment declaring the actions of

resp ondents are in violation of Section 75 of the Civil Service Law (CSL) , Rule 5.7.4

. of the

Personnel Rules and Regulations of the City of New York (CRR) , Section 8

- 107 et se c. o f the

New York Administrative Code (Code) and Section 290 et se c. o f the New York Executive Law

(EL) ; declaring that the actions of respondents are arbitrary, capricious, unreasonable and

illegal; a nnulling respondents’ determination to demote petitioner and reinstating him to his

prior permanent position ; awarding petitioner actual damages to be determined at trial, including

back pay and benefits from July 28, 202 2, including the date of his reinstatement ; awarding

P etitioner compensatory damages for mental and emotional distress; awarding petitioner punitive

damages ; enjoin in g respondents fro m further negative actions; and awarding petitioner pre
- and

post

- judg ment interest and reasonable attorney’s fees. 

### FILED: NEW YORK COUNTY CLERK 02/21/2024 04:58 PM INDEX NO. 160076/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/21/2024

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### [* 1]Page 2 of 6 FACTS

Petitioner alleges as follows: Petitioner is an employee of respondents The City of New

York (NYC) and The City of New York Department of Correction (DOC). He previously held

the permanent position of Captain until September 4, 2020 , when he was promoted to the

position of Assistant Deputy Warden. Petitioner completed his one

- year probationary period as

of September 4, 2021. He claims that , as of that date, he held a permanent position as Assistant Deputy Warden.

On April 7, 2022, petitioner suf fered a severe heart attack. He underwent heart surgery

and was diagnosed with coronary heart disease. While on sick leave and recovering from his

heart condition, he received a letter from DOC, dated July 28, 2022, that he was to be demoted

back to his Captain position. Petiti oner state s that he was given no reason for his demotion

.

He also states that he was not allowed a hearing , pursuant to section 75 of CSL, to wh ich al l

permanent employees are entitled.

Petitioner brings this Article 78 to annul this demotion, on the ground that it violates

section 75 and other laws , and is arbitrary and capricious . Petitioner also argues that he i s a

victim of discrimination due to h is present physical impairment, race and gender. He claims that

this is a retaliation for his taking off sick leave. He states that he is presently the only Asian

American male employed as a permanent Assistant Deputy Warden in th e DOC. 

### FILED: NEW YORK COUNTY CLERK 02/21/2024 04:58 PM INDEX NO. 160076/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/21/2024

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Petitioner also seeks to be reinstated as a permanent Assistant Deputy Warden an d seeks
various damages, plus reasonable attorney’s fees

. In opposition, respondents argue that petitioner is not a permanent Assistant Deputy

Warden and is not entitled to a hearing under Section 75. They contend that a s a provisional

employee , he can be demoted without cause or an explanation. According to them, petitioner’s

demotion without a hearing is proper unless the demotion was in bad faith, for a constitutional ly

impermissible or illegal purpose or in violation of statutory or dec isional law.

Respondents contend t hat the demotion was not in bad faith. They submit evidence

which shows how petitioner acted improper ly in his position on several occasions. First, on
January 6, 2021, petitio ner failed to properly supervise a Captain who engaged in irregular

conduct with an inmate. Second, on August 12, 2021, petitioner failed to follow orders to
collect and upload reports to the Case Management Systems related to an incident which

occurred when he was on duty. Third, petitioner failed to report for duty on ten occasions

between February 6 and February 17, 2022

. Respondents state that petitioner ’ s demotion was

based on these actions, which were adequate indication s that he was not performing his dut ies in

a satisfactory manner. 

### FILED: NEW YORK COUNTY CLERK 02/21/2024 04:58 PM INDEX NO. 160076/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/21/2024

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Regarding petitioner ’s claim of retaliatory action, respondents argue that no pro tective

activity occurred . They assert that even though petitioner did not receive notice of demotion

until over three months after his latest impro per conduct cited, this in itself is not sufficient

grounds for a claim of retaliation

. As for claims of discrimination, responde n ts argue that

petitioner has not adequately shown a clear inference of discrimination based on his race and

gender.

In reply, petitioner argues that he completed his one

- year probational period and is a

permanent Assistant Deputy Warden , and that he is entitled to a hearing prior to any demotion.

He contends that his demotion was retaliatory because respondents chose to demote him after

he exercised his right to take sick leave to recover from a heart attack. He claims to be a victim

of discrimination because non Asian

- American women w ere not demoted on similar grounds.

Petitioner states that respondents failed to submit performance reviews for him during his

tenure as Assistant Deputy Warden indicating the quality of his work. 

### FILED: NEW YORK COUNTY CLERK 02/21/2024 04:58 PM INDEX NO. 160076/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/21/2024

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### [* 4]Page 5 of 6 CONCLUSIONS OF LAW This proce e d ing is brought by petitioner pursuant to CPLR 7803 (3), on the ground that 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

. Petitioner asserts that he is a permanent

employee because he served his one

- year probationary term. He contends that his probationary

term was not extended for any reason , and he is entitled to a hearing before any attempt at demotion by respondents. In their papers, respondents do not discuss petitioner ’s claim that h e

was a p ermanent Assistant Deputy Warden.

Section 11, 5

. 2.1(a) of Tile 55 , Appendix A of the Rules and Regulations of the City of

New York provides as follows :

Every appointment and promotion to a position in the competitive or labor class shall be for a prohibitionary period of one year unless otherwise set forth in the terms and conditions of the certification for appointment and promotion as determined by the commissioner of citywide administrative services.

Petitioner argues that he was appointed Assistant Deputy Warden o n September 4, 202 0.

It is not disputed that he was part of a competitive class and that the one

- year period was

applicable to the position. R espondents failed to address this issue in any way, which indicates that they are not challenging this claim as made by petitioner . Indeed, re spo ndents have not

offer ed any explanation as to why petitioner is not entitled to permanent status.
In the absence of any evidence to the contrary, this court finds that petitioner is a permanent employee and is entitled to a hearing pursuant to Article 57. Respondents are 

### FILED: NEW YORK COUNTY CLERK 02/21/2024 04:58 PM INDEX NO. 160076/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/21/2024

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required to hold a hearing at which petitioner can present h is claims, including those alleging

retaliation and disc rimination, before the DOC.

For all the af

oremention ed reasons, it is hereby : ORD ERED that this petition is granted to the extent that the determination by respondent The New York City Department of Correction , dated July 28, 2022, demoting petitioner to the position of Captain is stayed pending a hearing pursuant to Section 7 5 of the

New York Civil Service Law . Such hearing sh all be scheduled by said respondent

.

2 / 2 1 /2024 $SIG$
DATE J. MACHELLE SWEETING, J.S.C.

CHECK ONE: X CASE DISPOSED NON
- FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

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