Answer: Sergey Gurin v. Utica Municipal Housing Authority D/B/A People First

On October 28, 2021 a Answer was filed involving a dispute between Sergey Gurin, and Utica Municipal Housing Authority D B A People First, for Special Proceedings - CPLR Article 78 in the District Court of Oneida County.

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FILED: ONEIDA COUNTY CLERK 12/01/2021 02:27 PM INDEX NO. EFCA2021-002582
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/01/2021

STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA

In the Matter of the Application of VERIFIED ANSWER
Sergey Gurin, Index No.: EFCA2021-002582

Petitioner,
For a Judgment pursuant to Article 78 of the
Civil Practice Law and Rules
-against-

Utica Municipal Housing Authority
d/b/a People First,
Respondent.

The Respondent, Utica Municipal Housing Authority, d/b/a People First, by and through its

attorneys, The Law Firm of Frank W. Miller, PLLC, as and for its answer to the Petition herein,

alleges:

"1"
1. Respondent denies so much of paragraph thereof numbered as alleges that there is

any valid basis to nullify or void the determination made in this matter by the Respoñdêñt, and to the

extent those allegations are repeated or realleged, the Respondent answers those allegations in like

manner.

2. Respondent denies so much of paragraph thereof numbered "2", as alleges that the

payment"
Respondent had any obligation to "make an adjustment or in this matter, and to the extent

those allegations are repeated or realleged, the Respondent answers those allegations in like manner.

3. Respondent lacks knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph thereof numbered "3", and to the extent those allegations

are repeated or realleged, the Respondent answers those allegations in like maññcr.

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"6"
4. Respondent denies the allegations in paragraphs thereof numbered and "7".

Respondent affectively contends that the Petitioner Gurin was given a thirty-day suspension without

pay in 2010, following his having been dismissed from employment because of the very same type

of conduct that was involved in the episode which forms the basis of these charges. While a

settlement was negotiated to reduce the discipline from a termination to a thirty-day unpaid

suspension without pay, itnonetheless resulted in a full thirty-day suspmsion. Furthermore, in 2018,

the Petitioner was again given a five-day suspension for similar behavior. That disciplinary matter

went before a neutral arbitrator who ruled in favor of the Housing Authority and upheld a five-day

suspension without pay because the Petitioner had wrongfully absented himself from his duties

while he was being paid and in violation of the policies of the employer. This was not the sole

disciplinary matter in which he was involved. To the contrary, the Petitioner has been suspended on

two occasions for behavior having to deal with issues of abseñting himself from work and

dereliction of duty, as more fully described in the record presented herein and in the doctmets

submitted in evidence in the hearing. He was also counseled for other behaviors. Petitioner knew or

should have known that wrongfully absenting himself from work or being derelict in the

performance of his duties would be grounds for termination from employment.

5. Respondent denies so much of paragraph thereof numbered "8", as alleges or

suggests that the Petitioner was only assigned to accoñrpañy a non-Authority employee. At all

times, he was expected to perform his duties in a responsible and appropriate manner while

accompanying the non-employee vendor.

6. Respondent denies the allegations of paragraph thereof numbered "9".

7. Respondent denies the allegations of paragraph thereof numbered "10". While

Executive Director Calli re-entered the garage it was long after having first observed the Petitioner

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sitting, drinking coffee, apparently on a break, when he should have been working. According to the

testimony (beginning at page 75) the Executive Director Robert Calli visited the area where the

Petitioner was working. His reason for being there had to do with a report of a domestic disturbance

in that immediate area. Mr. Calli, in responding to that domestic disturbance passed by the area of

the garage. At that time, he observed two individuals seated in chairs with their backs to the

opening. The time was 8:16 a.m. Mr. Calli testified that he recognized Sergey Gurin's distinctive

voice and recognized him. He leftthe area immediately to inquire about the domestic disturbance

which had been ongoing. He returned to the area at 8:52 a.m. (36 minutes later) and observed the

two individuals seated in precisely the same positions. Mr. Calli testified that the customary

morning work break which had been established through past practice between the union and the

Housing Authority was scheduled to occur around 10:00 a.m. At the time that he first observed

Sergey Gurin in that area seated while drinking a cup of coffee, it was 8:16 a.m., only 46 minutes

into Mr. Gurin's shift. There was no authorization or justification for Mr. Gurin to be seated and

drinking coffee at that time. These actions were undertaken by an employee who had already been

suspended a total of 35 days, without pay, because of similar misconduct and dereliction of duty. At

that time, Mr. Calli entered the room and directed the Petitioner to resume his duties. To suggest

that Mr. Gurin sat down for a brief moment is wholly inaccurate as the observed time of dereliction

of duty was 36 minutes, but in reality was probably much more time.

"10"
8. Respondent further denies so much of paragraph numbered as alleges that Mr.

Calli should have been required to direct Mr. Gurin to resume his duties at 8:52 a.m. when he

entered the garage and gave direction to Mr. Gurin. The fact that Mr. Gurin ñêêdêd direction in

order to get him to resume his lawful duties is further proof of a dereliction of duty and bad faith in

the Petitioners conduct of his responsibilities.

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9. Respondent denies any improper conduct as alleged in paragraph number "11", in any

alleged delay in the suspasion on December 18, 2020, following the events of December 10, 2020.

Following the incident of December 10, 2020, Mr. Calli had an opportüñity to thoroughly review

Mr. Gurin's personnel file and to consult with the Board of Directors, as well as consult with legal

counsel. Following that review, Mr. Calli, as Executive Director and appointing authority, made the

decision to place Mr. Gurin on suspeñsion pursuant to Civil Service Law § 75 and seek termination.

"13"
10. Respondent denies so much of paragraph thereof number as alleges that

"Answered" e-
Petitioner answered all charges. The Petitioner, through his union the charges by an

mail dated March 1, 2021, in evidence is Joint Exhibit "4". That answer did not refute the specific

allegations of the charges and did not respond to the particular paragraphs of the charges. Instead, it

cGñtaiñêd merely an undifferentiated denial of the primary allegations.

As part of the charges, the Executive Director and appointing authority of the Housing

Authority of the Utica Municipal Housing Authority, designated and appointed Alfred T. Riccio, an

Impartial Hearing Officer and resident of Clifton Park, New York. Mr. Riccio is a career labor

relations professional. He was known to Mr. Calli to have previously served as the personnel

director of the Jefferson-Lewis BOCES in Watertown, New York. He was known to be well

respected in his field with numerous professional âœoñrplishments. Upon information and belief, he

was well qualified to serve as Hearing Officer in this matter. He had no prior connection to this case

or to the Housing Authority.

11. Respõñdent denies so much of paragraphs thereof numbered "14", "15", "16", and

"17"
as alleges any improper conduct on the part of the Respondent. Following a full day-long

hearing conducted on May 17, 2021, the parties were permitted an opportunity to submit briefs. The

Hearing Officer rêñdered his decision on June 24, 2021. The Respondent received the decision on

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June 28, 2021. The Executive Director and appointing authority thereafter immediately reviewed

the decision in detail. Mr. Calli was familiar with allthe facts and circumstances. Mr. Calli
already

had attended the entire hearing. Mr. Calli had been the author of and had signed the charges. Mr.

Calli listened to all of the evidence. He reviewed all of the exhibits and materials submitted in the

hearing. Upon his receipt of the decision from the Hearing Officer as Executive Director he

immediately convened a meeting of the Board of Commissioners of the Housing Authority. The

sole purpose of that meeting was to address the decision issued by the Hearing Officer in the case.

The Board met and conferred, in executive session, on June 30, 2021 in a special meeting. The

public notice provisions were waived under those circumstances and the meeting proceeded. The

meeting itself lasted approximately one hour. At that time, the Board confirmed the Executive

Director's finding which was to accept the findings of the Hearing Officer and to terminate the

employment of Mr. Gurin. The Board was supplied with the transcripts of the hearing prior to the

meeting. It was also supplied with all of the exhibits and documents from the hearing as well. Over

the course of an hour the Board reviewed the matter and discussed the details of the proceeding and

confirmed the decision by the appointing authority and Executive Director. Following a thorough

review of the record, all of the appropriate documents and related materials, the Board concurred

with the judgment of the Executive Director and appointing authority that the services of Mr. Gurin

should be terminated. A copy of the minutes of that Board meeting are attached as Exhibit "A".

"19"
12. Respondent denies so much of paragraph thereof numbered "18", and as alleges

that the Respondent was under any obligation to respond to said Notice of Claim or that the Notice

of Claim stated a valid cause of action.

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AS AND FOR THE RESPONDENT'S ANSWER TO THE FIRST C_LAIM, IT IS ALLEGED:

13. Respondent denies each and every allegation contained in paragraphs thereof

"22"
numbered "20", "21", and and to the extent those allegations are repeated or realleged, the

Respondent answers those allegations in like manner.

AS AND FOR THE RESPONDENT'S ANSWER TO THE SECOND CLAIM, IT IS
A_L_LEGED:

14. Respondent denies each and every allegatioñ contained in paragraph thereof

"25"
numbered "23', "24", and "26".

15. As to the second paragraph number 25 on page four of five, we specifically deny that

only one prior adjudicated discipline resulted in the five-day suspasion in 2018 as this is a false

allegation. The Petitioner had previously been suspended for a period of thirty days, without pay,

and the discipline issue was settled and resolved with the Petitioner agreeing to accept a thirty-day

unpaid susposion, along with a verbal warning, because of conduct similar to that of December 10,

2020, as engaged in by the Petitioner.

AS AND FOR A FIRST COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

16. Whatever injuries or damages the Petitioner may have sustained, those injuries or

damages were caused in whole or in part by the culpable conduct, fault, wrongful conduct,

insubordinate and unprofessional conduct and dereliction of duty, conduct unbecoming, and

misconduct of the Petitioner and not through any fault, want of care, or improper conduct on the part

of the Respondent.

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AS AND FOR A SECOND COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

17. The Petitioner has failed to mitigate his damages.

AS AND FOR A THIRD COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED

18. The Petitioner has engaged in willful misconduct in clear violation of his duties and

responsibilities as a public employee of the Utica Municipal Housing Authority.

AS AND FOR A FOURTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT. IT IS ALLEGED:

19. The actions of the Respondent were at all times taken in good faith and in pursuance

of its responsibility to provide necessary public service to the residents of the Authority and its

determination should not be reversed or modified.

AS AND FOR A FIFTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

20. The actions of the Petitioner in willfully absenting himself from work for a period,

approximately 36 minutes or more, after having received two disciplinary suspensions and multiple

warnings, about iñâppropriate conduct, establishes a sound and rational basis to terminate the

employment of the Petitioner.

AS AND FOR A SIXTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT. IT IS ALLEGED:

21. The Petitioner having previously been suspended for thirty days in 2010 and later for

five days in 2018 (which suspension was upheld by a neutral arbitrator) while engaging in similar

conduct of being away from his assigned duties, has amply demonstrated that he could not be trusted

and should not be retained in a position of public trust and his termination was therefore justified.

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AS AND FOR A SEVENTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE
IN THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

22. Respondent contends that the termination of the Petitioner was appropriate when

considered in light of all of the circumstances of the case and that the penalty of termination was not

disproportionate to the offense or shocking to one's sense of fairness in that the Petitioner had been

repeatedly warned about and suspended without pay two times as the result of engaging in similar

improper behavior involving his failure to carry out duties as directed and being absent from his

duties without leave or permission.

AS AND FOR AN EIGHTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE
IN THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

23. The diamissal of the Petitioner from employment was based upon record evidence,

and rational conclusions drawn from the evidence and furthermore the decision to teññinate was

based in part upon the lack of the demonstration of remorse from the Petitioner and no
any

indication that the Petitioner would improve his performance in the future. The testimony by the

Petitioner at the hearing revealed that he did not apologize for his behavior and did not indicate that

he would improve his future performance.

AS AND FOR AN NINTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

24. The Petitioner fails to state a cause of action or claim upon which relief can be
granted.

AS AND FOR AN TENTH COMPLETE AND/OR PARTIAL AFFIRMATIVE DEFENSE IN
THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS ALLEGED:

25. The Petitioner does not allege that the decision of the hearing Officer or the Housing

Authority was not based on relevant evidence derived from the hearing record.

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AS AND FOR AN ELEVENTH COMPLETE AND/OR PARTIAL AFFIRMATIVE
DEFENSE IN THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT, IT IS

ALLEGED:

26. The Notice of Claim served by Petitioner herein is defective in that it does not

challenge that the guilt of Petitioner was not satisfied by the record evidence. Therefore, Petitioner

may not challenge the findings of guilt.

WHEREFORE, the Respondent requests that the Petition be dismissed, upon the merits,

together with such other and further relief as to this Court seems just and proper.

Dated: December 1, 2021 Respectfully submitted,
East Syracuse, New York THE LAW FIRM OF FRANK W. LLER, PLLC

B
rank W. Miller, Esq.,
Attorneys for Defendant
Office and Post Office Address:

6575 Kirkville Road
East Syracuse, New York 13057
Telephone: (315) 234-9900
Facsimile: 234-9908*
(315)
fmiller@fwmillerlawfirm.com

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STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA

In the Matter of the Application of VERIFICATION
Sergey Gurin, Index No.: EFCA2021-002582

Petitioner,
For a Judgment pursuant to Article 78 of the
Civil Practice Law and Rules
-against-

Utica Municipal Housing Authority
d/b/a People First,
Respondent.

STATE OF NEW YORK)
COUNTY OF ONEIDA) as.:

I, Robert Calli, being duly sworn, depose and say, that depGñêñt is the Executive Director of

the Utica Municipal Housing Authority, the Respondent in the within action; that depoñêñt has read

the foregoing Verified Answer, and knows the content thereof; that the same is true to deponent's

knowledge, except as to matters therein stated to be at pon in ormation and belief, and that as

to those matters deponent believes them to be true

Executive Director, UMHA

8worn to before me this

of 2021 JOHN J. FURMAN
day December,
WOTARY PUBLIC-sTATE OF NEW YORK
No.01FU6300603
Oualified in Oneida County
MY Comminion Expires 04-07-2022
ta u

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Case Info

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Document Filed Date

December 01, 2021

Case Filing Date

October 28, 2021

County

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