Preview
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023
Supreme 01ourt af t1e 5tate of New Worlt
Appellate Binisinn: Second Jubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
- . - . - - . - " - . - . . " For Court of Original Instance
In the Matter of the Application of
DAVE PEARL,
Petitioner,
For a Judgment Pursuant to Article 78 of the
New York Civil Practice Law and Rules
Date Notice of Appeal Filed
- against -
NEW YORK STATE UNIFIED COURT SYSTEM, . . .
Respondent. For Appellate Division
. .
¡ Civil Action E CPLR article 78 Proceeding ¡ Appeal E Transferred Proceeding
O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings Eil CPLR Article 78
¡ U Executive Law § 298
¡ Action Commenced under CPLR 214-g O Habeas Corpus Proceeding
CPLR Article 78
O Eminent Domain O CPLR 5704 Review
O Labor Law 220 or 220-b
Public Officers Law § 36
Real Property Tax Law § 1278
- . . -- . -1. .- . - - -
:
E Administrative Review ¡ Business Relationships ¡ Commercial ¡ Contracts
¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law ¡ Estate Matters
¡ Family Court ¡ Mortgage Foreclosure ¡ Miscellaneous ¡ Prisoner Discipline & Parole
¡ Real Property ¡ Statutory ¡ Taxation ¡ Torts
(other than foreclosure)
Informational Statement - Civil
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023
Appeal
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
¡ Amended Decree M Determination ¡ Order ¡ Resettled Order
O Amended Judgement ¡ Finding ¡ Order & Judgment ¡ Ruling
¡ Amended Order ¡ Interlocutory Decree ¡ Partial Decree ¡ Other (specify):
O Decision ¡ Interlocutory Judgment ¡ Resettled Decree
O Decree ¡ Judgment ¡ Resettled Judgment
Court: Supreme Court County: Westchester
Dated: 08/18/2023 Entered:08/18/2023
Judge (name in full): Robert J. Prisco Index No.:63737/2023
r ecteÆAp|ûeal and ela ed as nf in a iod
Are any appeals arising in the same action or proceeding currently pending in the court? O Yes No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
An Article 78 Proceeding involving the same parties and based upon a prior Determination is pending in this Court and is
assigned Case Number 2023-07404. On March 15, 2023, Deputy Chief Administrative Judge, Courts Outside New York City,
replaced his Determination in that case with the Revised Determination, which is the basis for this Article 78 Proceeding.
Original Proceeding
Commenced by: ¡ Order to Show Cause ¡ Notice of Petition ¡ Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Proceeding Transferred Pursuant to CPLR 7804(g)
Court: Supreme Court County: Westchester
Judge (name in full): Robert J. Prisco Order of Transfer Date:08/18/2023
CPLR 5704 Review of Ex Parte Order:
Court: Choose Court County: Choose County
Judge (name in full): Dated:
Description of Appeal, Proceeding or Application and Statement of Issues
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
The underlying Article 78 Proceeding sought an order (1) annuling Respondent's Determination that Petitioner committed acts of misconduct, (2)
ordering Respondent to reinstate Petitioner to his formerly held position of Senior Court Officer with back pay and benefits, and/or, in the alternative,
(3) ordering Respondent to modify and reduce the punishment of termination of Petitioner's employment to a significantly less severe penalty. The
Ordered"
parties stipulated that the proceeding be transferred to the Appellate Division and the Supreme Court "So the Stipulation.
Informational Statement - Civil
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023
Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
1. Whether the decision of the Hearing Officer is supported by substantial evidence.
2. Whether Petitioner's comments on political issues, posted on a third-party's Facebook page while off duty, are protected speech.
3. Whether the 18-month statute of limitations imposed by the collective bargaining agreement bars the bringing of charges for posting a comment
more than 4 years earlier.
4. Whether Petitioner is entitled to back pay and benefits for the period June 23, 2022 through March 15, 2023, or through the later date when he
terminated."
received the Revised Determination stating that he was "immediately
5. Whether the Revised Determination should be vacated and the matter should be remanded to a different Judge for a determination as to whether
Petitioner should be permitted to choose the Alternate Disciplinary Procedure.
6. Whether the Revised Determination should be vacated and the matter should be remanded to a different Judge for a new Determination of
findings of fact and conclusions of law and the imposition of any penalty, should Petitioner be found guilty of any of the Specifications, effective as of
the date of the new Determination, because Chief Judge DiFiore's undue pressure to make her look as if she is doing a good job in combatting bias,
and of either the desire of other members within the Court System to impress her or of a reluctance on their part to go against her wishes.
7. Whether the punishment of termination is so disproportionate to the charges that it is shocking to one's sense of fairness and should be modified.
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 Dave Pearl Petitioner Petitioner
2 New York State Unified Court System Respondent Respondent
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Informational Statement - Civil
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023
Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Ronald D. Degen/O'Rourke & Degen, PLLC
Address: 225 Broadway, Suite 715
City: New York State: NY Zip: 10007 Telephone No: (212)227-4530;(917) 887-7281
E-mail Address: rdegen@odlegal.com
Attorney Type: iiil Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above)·1
Attorney/Firm Name: Michael J. Siudzinski/Office of Court Administration
Address: 25 Beaver Street, 10th Floor
City: New York State: NY Zip:10004 Telephone No: (212) 428-2150
E-mail Address: msiudzin@nycourts.gov
Attorney Type: ¡ Retained ¡ Assigned Government ¡ Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party nurnber(s) from table above): 2
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: ¡ Retained ¡ Assigned O Government O Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: ¡ Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: ¡ Retained ¡ Assigned O Government O Pro Se ¡ Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above)
Informational Statement - Civil
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023
SUPREME COURT OT THE STATE OF NEW YORK
COI.INTY OF WESTCHESTER
In the Matter of the Application of
DAV'E PEARL, lndex No. 6lXt7A0n
Petitioner, STIPULATION TO
TRA}ISFER SPECIAL
For a Judgment Pursuant to Article 78 of the PROCEBDING TO THE
New York Civil Practice Law and Rules APPELLATE DIVISION
SECOND DEPARTMENT
-against-
NEW YORK STATE IJNIFIED COI.JRT SYSTEM,
Respondent.
IT IS ImREBY STIPULATED AND AGREED by and between counsel for Petitioner
and counsel for Respondent, that this Article 78 Proceeding, currently retumable on August 22,
2023,before the Supreme Court of the State ofNew York, County of,We.stchester,located at 111
Maftin Luther King, Jr. Blvd,, White Plains, New York 10501, is to be transfer,red to the Appellate
Division, Seoond Department, pwsuant to CPLR $$ 7803(4) and 7S04(g) ("substantial ovidence
issue").
IT IS rURTIIER STIPUTATED AND AGREED that a facsimile signatrue on this
stipulation shall have the same force and effect as an original.
Dated: New York, New York
August 18,2021,
DAVID NOCENTI
O'ROURKE & DEGEN, PLLC Acting Counsel
Counsel for Petitioner
By:
D. Degen, Esq.
225 Broadway, Suite 715
New York, NY 10007 25 Beaver Street
QLz)227-4s30 NewYork, NY 10004
Qtz') 428-2rs0
on
D*at
Preview
FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023 Supreme 01ourt af t1e 5tate of New Worlt Appellate Binisinn: Second Jubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) - . - . - - . - " - . - . . " For Court of Original Instance In the Matter of the Application of DAVE PEARL, Petitioner, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules Date Notice of Appeal Filed - against - NEW YORK STATE UNIFIED COURT SYSTEM, . . . Respondent. For Appellate Division . . ¡ Civil Action E CPLR article 78 Proceeding ¡ Appeal E Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings Eil CPLR Article 78 ¡ U Executive Law § 298 ¡ Action Commenced under CPLR 214-g O Habeas Corpus Proceeding CPLR Article 78 O Eminent Domain O CPLR 5704 Review O Labor Law 220 or 220-b Public Officers Law § 36 Real Property Tax Law § 1278 - . . -- . -1. .- . - - - : E Administrative Review ¡ Business Relationships ¡ Commercial ¡ Contracts ¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law ¡ Estate Matters ¡ Family Court ¡ Mortgage Foreclosure ¡ Miscellaneous ¡ Prisoner Discipline & Parole ¡ Real Property ¡ Statutory ¡ Taxation ¡ Torts (other than foreclosure) Informational Statement - Civil FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023 Appeal Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. ¡ Amended Decree M Determination ¡ Order ¡ Resettled Order O Amended Judgement ¡ Finding ¡ Order & Judgment ¡ Ruling ¡ Amended Order ¡ Interlocutory Decree ¡ Partial Decree ¡ Other (specify): O Decision ¡ Interlocutory Judgment ¡ Resettled Decree O Decree ¡ Judgment ¡ Resettled Judgment Court: Supreme Court County: Westchester Dated: 08/18/2023 Entered:08/18/2023 Judge (name in full): Robert J. Prisco Index No.:63737/2023 r ecteÆAp|ûeal and ela ed as nf in a iod Are any appeals arising in the same action or proceeding currently pending in the court? O Yes No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: An Article 78 Proceeding involving the same parties and based upon a prior Determination is pending in this Court and is assigned Case Number 2023-07404. On March 15, 2023, Deputy Chief Administrative Judge, Courts Outside New York City, replaced his Determination in that case with the Revised Determination, which is the basis for this Article 78 Proceeding. Original Proceeding Commenced by: ¡ Order to Show Cause ¡ Notice of Petition ¡ Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Proceeding Transferred Pursuant to CPLR 7804(g) Court: Supreme Court County: Westchester Judge (name in full): Robert J. Prisco Order of Transfer Date:08/18/2023 CPLR 5704 Review of Ex Parte Order: Court: Choose Court County: Choose County Judge (name in full): Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. The underlying Article 78 Proceeding sought an order (1) annuling Respondent's Determination that Petitioner committed acts of misconduct, (2) ordering Respondent to reinstate Petitioner to his formerly held position of Senior Court Officer with back pay and benefits, and/or, in the alternative, (3) ordering Respondent to modify and reduce the punishment of termination of Petitioner's employment to a significantly less severe penalty. The Ordered" parties stipulated that the proceeding be transferred to the Appellate Division and the Supreme Court "So the Stipulation. Informational Statement - Civil FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. 1. Whether the decision of the Hearing Officer is supported by substantial evidence. 2. Whether Petitioner's comments on political issues, posted on a third-party's Facebook page while off duty, are protected speech. 3. Whether the 18-month statute of limitations imposed by the collective bargaining agreement bars the bringing of charges for posting a comment more than 4 years earlier. 4. Whether Petitioner is entitled to back pay and benefits for the period June 23, 2022 through March 15, 2023, or through the later date when he terminated." received the Revised Determination stating that he was "immediately 5. Whether the Revised Determination should be vacated and the matter should be remanded to a different Judge for a determination as to whether Petitioner should be permitted to choose the Alternate Disciplinary Procedure. 6. Whether the Revised Determination should be vacated and the matter should be remanded to a different Judge for a new Determination of findings of fact and conclusions of law and the imposition of any penalty, should Petitioner be found guilty of any of the Specifications, effective as of the date of the new Determination, because Chief Judge DiFiore's undue pressure to make her look as if she is doing a good job in combatting bias, and of either the desire of other members within the Court System to impress her or of a reluctance on their part to go against her wishes. 7. Whether the punishment of termination is so disproportionate to the charges that it is shocking to one's sense of fairness and should be modified. Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 Dave Pearl Petitioner Petitioner 2 New York State Unified Court System Respondent Respondent 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023 Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Ronald D. Degen/O'Rourke & Degen, PLLC Address: 225 Broadway, Suite 715 City: New York State: NY Zip: 10007 Telephone No: (212)227-4530;(917) 887-7281 E-mail Address: rdegen@odlegal.com Attorney Type: iiil Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above)·1 Attorney/Firm Name: Michael J. Siudzinski/Office of Court Administration Address: 25 Beaver Street, 10th Floor City: New York State: NY Zip:10004 Telephone No: (212) 428-2150 E-mail Address: msiudzin@nycourts.gov Attorney Type: ¡ Retained ¡ Assigned Government ¡ Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party nurnber(s) from table above): 2 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: ¡ Retained ¡ Assigned O Government O Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: ¡ Retained ¡ Assigned ¡ Government ¡ Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: ¡ Retained ¡ Assigned O Government O Pro Se ¡ Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above) Informational Statement - Civil FILED: WESTCHESTER COUNTY CLERK 09/06/2023 03:41 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/06/2023 SUPREME COURT OT THE STATE OF NEW YORK COI.INTY OF WESTCHESTER In the Matter of the Application of DAV'E PEARL, lndex No. 6lXt7A0n Petitioner, STIPULATION TO TRA}ISFER SPECIAL For a Judgment Pursuant to Article 78 of the PROCEBDING TO THE New York Civil Practice Law and Rules APPELLATE DIVISION SECOND DEPARTMENT -against- NEW YORK STATE IJNIFIED COI.JRT SYSTEM, Respondent. IT IS ImREBY STIPULATED AND AGREED by and between counsel for Petitioner and counsel for Respondent, that this Article 78 Proceeding, currently retumable on August 22, 2023,before the Supreme Court of the State ofNew York, County of,We.stchester,located at 111 Maftin Luther King, Jr. Blvd,, White Plains, New York 10501, is to be transfer,red to the Appellate Division, Seoond Department, pwsuant to CPLR $$ 7803(4) and 7S04(g) ("substantial ovidence issue"). IT IS rURTIIER STIPUTATED AND AGREED that a facsimile signatrue on this stipulation shall have the same force and effect as an original. Dated: New York, New York August 18,2021, DAVID NOCENTI O'ROURKE & DEGEN, PLLC Acting Counsel Counsel for Petitioner By: D. Degen, Esq. 225 Broadway, Suite 715 New York, NY 10007 25 Beaver Street QLz)227-4s30 NewYork, NY 10004 Qtz') 428-2rs0 on D*at