Petition for Writ of Certiorari — Tinelli v. Redl

FILED

991 807 MAR | 7 2000

OFFICE QE THE CLERK

® Supremé Court, UB

\

No.

IN THE

Supreme Court of the United States

JOSEPH V. TINELLI, SR.,

Petitioner,

V.

FRANK E. REDL and HANKIN, HANIG, STALL, &

CAPLICKI,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

HAROLD RONALD MOROZ

Counsel for Petitioner

Post Office Box 5505

St. Marys, Georgia 31558

912-673-9189

iF

QUESTION PRESENTED

Whether a circuit court, sitting in diversity and

reviewing a complex causation issue as a matter of

unresolved forum state substantive law, in which there is

ample evidence for a jury to reasonably find the required

proximate, causal nexus between the careless act and the

resulting injury, is in error when it declines to certify the

question to the highest court of the state and, instead,

decides the issue as a matter of law by looking exclusively

to the decisions of the lower state courts and other

jurisdictions, giving rise to a conflict in applicable

principles for determining substantive state law with other

circuit courts and this Court.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........ccccscsscescsscesceeeeeeee

TABLE OF AUTHORITIES ..........0.ccccesceseescessseesen iii

PETITION FOR WRIT OF CERTIORARI........2-+.4++++ I

OPINIONS BERIOW oc ciiscinssticnailadiucuecnseneeee

FURISDAC TIONG oocsscsiiccssccsnacisiecencsnaeecaias 2

STATEMENT OF THE CASE.........ccceccseseeseeseeseeseon 2

REASONS FOR GRANTING THE PETITION ............ 5

I. The Decision of the Court of Appeals is

Erroneous, and its Approach to Resolving a

Matter of Substantive State Law is in Conflict

with Other Circuits and This Court ............... 6

Il. The Question Presented is Important ............. 9

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TABLE OF AUTHORITIES

Page

CASES

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).............. 5,6

Henry v. Merck and Co., 877 F.2d 1489 (10th Cir. 1989)

Liriano v. Hobart Corp., 132 F.3d 124 (2d Cir. 1998).......6

Marshall v. Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't

McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. 1997).......7

Meredith v. Winter Haven, 320 U.S. 228 (1943)............. 6

Peckham v. Continental Casualty Ins. Co., 895 F.2d 830

CRE, Rete sciiiveicisactsiscisleueict gy ekcreeneuans 7

Ruben v. New York Life Ins. Co., 304 U.S. 202 (1938) .....6

Salve Regina College v. Russell, 499 U.S. 225

STATUTES AND RULES

Page

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OG. YA adie Oe wis ciasiaessassuuidasctaneiearianncvenen 3,4, 8

NY SA Bales TIT sb esdeveiccctcccinasesincissssh panna’ 3

N.Y.C.P.LR. PRMD sag siadnckeiansipsadanlokeincaenssiiaiiad 3

New York Civil Service Law § 75(1) (McKinney

Sis dvnisinssncesniicdaatsesuiawsneusssuiaeaaneneinenaaeention 2

OTHER AUTHORITIES

Restatement (Second) of Torts § 432(1)(1965) ............ 8

PETITION FOR WRIT OF CERTIORARI ~

Joseph V. Tinelli, Sr., respectfully prays that a writ of

certiorari be issued to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit

entered in this proceeding on December 20, 1999, in order

to resolve the conflict between the Second Circuit and other

United States circuit courts, and relevant decisions of this

Court on the important issue presented herein.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit that gives rise to this petition is

reprinted in Appendix A hereto ("App. A") starting at page

A-1. By order filed December 20, 1999, the Second Circuit

affirmed defendants’, now respondents’, motion for

summary judgment on plaintiff's, now appellant's, claim for

legal malpractice. The opinion of the circuit court is

reported. The opinion of the district court is reprinted in

Appendix B hereto ("App. B") Starting at B-1. The Report

and Recommendation of the Magistrate Judge to the district

court is reprinted in Appendix C hereto ("App C") starting

at C-1.

JURISDICTION

The United States Court of Appeals for the Second

Circuit entered its decision on December 20, 1999. (App.

A, A-1).

Pursuant to Supreme Court Rule 14.5, this petition is

filed in a timely manner.

The jurisdiction of the Court is invoked pursuant to 28

U.S.C. § 1254(1).

STATEMENT OF THE CASE

In December 1988, Joseph V. Tinelli, Sr., a decorated

World War II combat veteran, was terminated from his

position as Code Enforcement Officer of the Town of

Pawling, New York (the "Town"). Thereafter, Tinelli

retained an attorney, Frank Redl, to represent him in

connection with his termination. In January 1989, Redl

informed the Town that Tinelli, as a civil servant, was

entitled to an administrative hearing under N.Y. Civil

Service Law § 75 for a formal determination of his

employment status.' Following a two-day hearing, Tinelli

' New York Civil Service Law § 75(1) (McKinney 1999) provides that

certain civil servants "shall not be removed or otherwise subjected to

any disciplinary penalty provided in this section except for

| . ee

as found guilty of three charges of "misconduct and

incompetence" --one charge of failing to enforce the Town

code requirements regarding the removal of abandoned

vehicles and two charges of abusive conduct toward a

colleague and a citizen. Pursuant to those findings, the

hearing officer recommended termination of Tinelli's

employment. On June 27, 1989, the Town Board adopted

the hearing officer's findings and recommendation.

In July 1989, Redl initiated Tinelli's appeal from the

administrative hearing decision by filing a notice of petition

in the Supreme Court of New York, Dutchess County

pursuant to N.Y.C.P.L.R. 78 (the "Article 78 appeal").? On

October 18, 1989, the Supreme Court transferred the case

to the Appellate Division, Second Department, pursuant to

N.Y.C.P.L.R.7804(g). Redl took no further action,

however, after the initial filing of the petition for Tinelli's

appeal. In April 1990, six months after having been

transferred to the Appellate Division, Tinelli's appeal

expired.

Following the expiration of his 78 appeal, Tinelli

commenced this malpractice suit against Redl in the United

incompetency or misconduct shown after a hearing upon stated charges

pursuant to this section.”

? An appeal pursuant to Article 78 is a special proceeding to challenge,

inter alia, “whether 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, including abuse of discretion as to

the measure or mode of penalty or discipline imposed.” N.Y.C.P.L.R.

7803(3) (McKinney 1994).

States District Court for the Southern District of New York

in April 1996. Tinelli alleged, inter alia, that Redl's failure

to perfect the Article 78 appeal, including his failure to

move for an extension of time to perfect, constituted

malpractice. The case was referred to Magistrate Judge

Douglas F. Eaton for pre-trial proceedings, and, after

substantial discovery, Red! moved for summary judgment

on all claims. On November 16, 1998, the magistrate judge

issued a Report and Recommendation, recommending that

Redl's motion be granted, with one exception not relevant

to this appeal. Witii respect to Redl's failure to perfect the

Article 78 appeal, the magistrate judge found that the

appeal would not have been successful even if it had been

perfected and thus concluded that Redl's failure to perfect

the appeal did not cause any damage to Tinelli. The district

court adopted the magistrate judge's Report and

Recommendation in its entirety and entered judgment on

February 3, 1999.°

Tinelli subsequently filed a timely appeal to the United

States Court of Appeals for the Second Circuit, claiming,

inter alia, that the district court erred in deciding the

substantive state issue of causation as a matter of law (App.

A, A-5).

* Tinelli also claimed that Redl's poor performance at the administrative

hearings constituted malpractice. The district court adopted the

magistrate judge's recommendation that Redl's motion for summary

judgment be granted as to this claim as well.

The circuit court heard arguments on October 7, 1999,

and rendered its decision on December 20, 1999. The

circuit court affirmed the order and judgment of the district

court granting defendants’ motion for summary judgment

and dismissing the action. (App A, A-7). In its opinion, the

circuit court, commenting on the issue of causation as a

matter of law, noted that (1) "...New York substantive law

applies in this diversity suit." (2) "...we cannot say that the

state's law is certain on this point." (3) "...the New York

Court of Appeals has not spoken on the issue..."; and (4)

"This inquiry requires us to look to the decisions of the

lower state courts and to consider decisions in other

jurisdictions." (App. A, A-5). The circuit court declined to

certify the question, but answered the question

nevertheless. (/bid.).

REASONS FOR GRANTING THE PETITION

"The concept of a federal general common law, lurking (to

use Justice Holmes' phrase) as a ‘brooding omnipresence in

the sky,' was questioned for some time before being firmly

rejected in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)."*

* Salve Regina College v. Russell, 499 U.S. 225, 226 (1991).

I. The Decision of the Court of Appeals is Erroneous,

and its Approach to Resolving a Matter of

Substantive State Law is in Conflict with Other

Circuits and This Court

In Salve Regina College v. Russell, 499 U.S. 225, 227

(1991), the Court observed:

"In decisions after Erie, this Court made clear that

state law is to be determined in the same manner as a

federal court resolves an evolving issue of federal

law: ‘with the aid of such light as [is] afforded by the

materials for decision at hand, and in accordance with

the applicable principles for determining state law.’

Meredith v. Winter Haven, 320 U.S. 228, 238 (1943).

See also Ruben v. New York Life Ins. Co., 304 U.S.

202, 208-209 (1938)."

Erie mandates that a federal court sitting in a diversity

suit apply the substantive law of the forum state concerning

the question of law, absent federal statutes or constitutional

provisions to the contrary.

When there is uncertainty in state law in a diversity

case, it is often appropriate to certify the unresolved

question to the highest court of the state. °

In the instant case, on the complex issue of causation as

a matter of law, the circuit court conceded (1) "...we

* Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

* Liriano v. Hobart Corp., 132 F.3d 124, 132 (2d Cir. 1998); McCarthy

v. Olin Corp., 119 F.3d 148, 153-54 (2d Cir. 1997).

cannot say that the state's law is certain on this point."; and,

(2) "...the New York Court of Appeals has not spoken on

the issue..." (App. A, A-5). There was clearly no

controlling state authority on the issue of causation, and the

issue was unresolved. Certification of the question to the

highest court of the state was appropriate.

Nevertheless, the court answered the question, without

certifying the question to the highest court of the state,

based upon "the narrowness of the issue presented and the

unanimity of extensive precedent..." (/bid.)

Analyzing the criteria for when certification of a

question is not proper, the petitioner notes certification is

not proper where the question does not present a complex

issue and sufficient precedent exists to make a

determination.’ In addition, as the Tenth Circuit noted,

although causation is generally a question of fact, "the

question becomes an issue of law when there is no evidence

from which a jury could reasonably find the required

proximate, causal nexus between the careless act and the

resulting injuries," Henry v. Merck and Co., 877 F.2d 1489,

1495 (10th Cir. 1989). Similarly, the First Circuit noted

that while resolving causation is generally within the jury's

domain, the fact "[t]hat causation is ordinarily a fact

question does not make it invariably a fact question”

(Peckham v. Continental Casualty Ins. Co., 895 F.2d 830,

837 (Ist Cir. 1990).

” McCarthy v. Olin Corp., 119 F.3d 148, 153-54 (2d Cir. 1997).

However, in the instant case, the court ruled on a

complex issue of causation as a matter of substantive state

law, with an admitted lack of controlling precedent, and

with ample available evidence from which a jury could

reasonably find the required proximate, causal nexus

between the careless act and the resulting injuries. The

Second Circuit is in conflict with its own precedent and the

articulations of the Tenth Circuit, and arguably the First

Circuit, with regard to its approach to resolving the issue of

causation as a matter of law or fact.

The Second Circuit noted in its decision that respondent

"Redl concedes that his failure to perfect the Article 78

appeal satisfies the first two of these requirements,” that is,

Red! conceded having had a duty and breaching it. The

only remaining element to be satisfied in the cause of

action was causation. (App. A, A-4, A-5). Breach of a

legal duty is a cause in fact of harm if that harm would not

have occurred but for the breach (Restatement (Second) of

Torts ("Restatement") § 432(1)(1965)). There was but one

prominent issue, and the court failed to satisfy the well-

established criteria for not certifying a question of

substantive state law, and relied, in substantial part, on the

narrowness of the question to affirm the lower court

decision. This is not in keeping with the mandate of this

Court in Salve,* as noted in the opening of this reason for

granting this petition. More precisely, the reasoning of the

* Salve Regina College v. Russell, 499 U.S. 225, 227 (1991).

circuit in this decision is in direct conflict with the

articulations of this Court.

Furthermore, the circuit court failed to certify the

question of substantive state law in a diversity suit in which

the district court granted summary judgment. (App. A, A-

4).

Summary judgment is appropriate only when there are

no genuine issues of material fact, and the moving party is

‘entitled to prevail as a matter of law.”

Again, the central issue of causation, as a substantive

state law question, arises in the context of a factual matter,

as the petitioner argued before the circuit, that should have

been resolved by a jury. (App. A, A-5).

The decision of the court of appeals is clearly erroneous,

and its approach to resolving a matter of substantive state

law is in conflict with other circuits and this Court. The

Court should grant certiorari to review this important

matter.

Il. The Question Presented is Important

At the circuit court level, conflicting decisions regarding

the application of appellate review in matters of state

substantive law are proliferating rapidly in virtually all

circuits. The need for guidance from this Court is acute.

This case is a timely and rare opportunity to provide that

guidance, since there are systemic reasons for the failure of

® Marshall v. Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't 1991).

10

circuit courts to engage in a uniform approach to

addressing issues of substantive state law when no

controlling state precedent exists. Moreover, for the

reasons previously stated, the decision below is erroneous,

and the issue that it addresses is important. Certiorari is

appropriate. ;

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

HAROLD RONALD MOROZ

Counsel for Petitioner

Post Office Box 5505

St. Marys, Georgia 31558

912-673-9189

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1999

| (Argued: October 7, 1999 Decided: Dec 20 1999)

Docket No. 99-7248

JOSEPH V. TINELLI, SR.,

Plaintiff-Appellant,

FRANK E. REDL and HANKIN, HANIG, STALL &

CAPLICKI,

Defendants-Appellees.

Before: JACOBS, CALABRESI and SOTOMAYOR,

Circuit Judges.

A-2

On appeal from an order and judgment of the United

States District Court for the Southern District of New York

(Wood, J.), granting defendants' motion for summary .

judgment on plaintiff's claim for legal malpractice.

Affirmed.

JOHN A. ARETAKIS, Law

Office of John A. Aretakis,

New York, New York, for

plaintiff-appellant.

DEBORA A. PITMAN,

Conway, Farrell, Curtain &

Kelly, P.C., New York, New

York, for

defendants-appellees.

PER CURIAM:

Plaintiff-appellant Joseph Tinelli appeals from an order

and judgment of the United States District Court for the

Southern District of New York-(Wood, J.), adopting in its

entirety the Report and Recommendation of the magistrate

A-3

judge (Eaton, M.J.), recommending that summary judgment

be granted in favor of defendants-appellees Frank Redl and

Hankin, Hanig, Stall & Caplicki.' We affirm the grant of

summary judgment substantially for the reasons stated by

the district court and magistrate judge. We write only to

address Tinelli's malpractice claim as it relates to Redl's

failure to perfect the appeal from an administrative hearing

decision, which found Tinelli guilty of misconduct and

recommended termination of his employment. The

resolution of that claim turns on the issue of New York

state law, i.e., ought a court or jury determine whether an

attorney's failure to perfect an appeal causes damages to the

plaintiff.

BACKGROUND

In December 1988, Joseph Tinelli was terminated from

his position as Code Enforcement Officer of the Town of

Pawling, New York (the "Town"). Thereafter, Tinelli

retained an attorney, Frank Redl, to represent him in

connection with his termination. In January 1989, Redl

informed the Town that Tinelli, as a civil servant, was

entitled to an administrative hearing under N.Y. Civil

Service Law § 75 for a formal determination of his

' Redl joined the the law firm of Hankin, Hanig, Stall & Caplicki as

"Of Counsel" in May 1994, after the events underlying this lawsuit

occurred. On appeal, Tinelli does not challenge the district court's

dismissal of the law firm for the action.

A-4

employment status.? Following a two-day hearing, Tinelli

was found guilty of three charges of "misconduct and

incompetence" --one charge of failing to enforce the Town

code requirements regarding the removal of abandoned

vehicles and two charges of abusive conduct toward a

colleague and a citizen. Pursuant to those findings, the

hearing officer recommended termination of Tinelli's

employment. On June 27, 1989, the Town Board adopted

the hearing officer's findings and recommendation.

In July 1989, Redl initiated Tinelli's appeal from the

administrative hearing decision by filing a notice of petition

in the Supreme Court of New York, Dutchess County

pursuant to N.Y.C.P.L.R. 78 (the "Article 78 appeal").? On

October 18, 1989, the Supreme Court transferred the case

to the Appellate Division, Second Department, pursuant to

N.Y.C.P.L.R.7804(g). | Redl took no further action,

however, after the initial filing of the petition for Tinelli's

appeal. In April 1990, six months after having been

? New York Civil Service Law § 75(1) (McKinney 1999) provides that

certain civil servants "shall not be removed or otherwise subjected to

any disciplinary penalty provided in this section except for

incompetency or misconduct shown after a hearing upon stated charges

pursuant to this section."

* An appeal pursuant to Article 78 is a special proceeding to challenge,

inter alia, "whether 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, including abuse of discretion as to

the measure or mode of penalty or discipline imposed." N.Y.C.P.L.R.

7803(3) (McKinney 1994).

A-5

transferred to the Appellate Division, Tinelli's appeal

expired.

Following the expiration of his 78 appeal, Tinelli

commenced this malpractice suit against Red] in the United

States District Court for the Southern District of New York

in April 1996. Tinelli alleged, inter alia, that Redl's failure

to perfect the Article 78 appeal, including his failure to

move for an extension of time to perfect, constituted

malpractice. The case was referred to Magistrate Judge

Douglas F. Eaton for pre-trial proceedings, and, after

substantial discovery, Redl moved for summary judgment

on all claims. On November 16, 1998, the magistrate judge

issued a Report and Recommendation, recommending that

Redl's motion be granted, with one exception not relevant

to this appeal. With respect to Redl's failure to perfect the

Article 78 appeal, the magistrate judge found that the

appeal would not have been successful even if it had been

perfected and thus concluded that Redl's failure to perfect

the appeal did not cause any damage to Tinelli. The district

court adopted the magistrate judge's Report and

Recommendation in its entirety and entered judgment on

February 3, 1999.‘ For the reasons that follow, we affirm

the decision of the district court.

* Tinelli also claimed that Redl's poor performance at the administrative

hearings constituted malpractice. The district court adopted the

magistrate judge's recommendation that Redl's motion for summary

judgment be granted as to this claim as well.

A-6

DISCUSSION’

We review the district court's grant for summary

judgment de novo. See Greene v. United States, 13 F.3d

577, 580 (2d Cir. 1994). Summary judgment is appropriate

only when there are no genuine issues of material fact, and

the moving party is entitled to prevail as a matter of law.

See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d

Cir. 1998). The parties do not dispute that New York

_ substantive law applies in this diversity suit.

In order to prevail on a claim of legal malpractice under

New York law, a plaintiff must demonstrate "(1) a duty, (2)

a breach of the duty, and (3) proof that actual damages

were proximately caused by the breach of the duty."

Marshall v. Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't 1991).

Redl conceded that his failure to perfect the Article 78

appeal satisfies the first two of these requirements.

Therefore, the only issue we address here is whether Tinelli

has shown that Redl's beach of duty caused any damage,

i.e., whether, but for Redl's failure to perfect the Article 78

appeal, Tinelli ultimately would have prevailed on appeal

in challenging the finding of misconduct and incompetence

and consequent termination of his employment.

Tinelli claims that the court below erred in deciding the

issue of causation as a matter of law, contending that the

question of whether his Article 78 appeal would have

succeeded is a factual matter that should be resolved by a

jury. Given the dearth of case law addressing this precise

ee

A-7

issue in New York, we cannot say that the state's law is

certain on this point.° In such circumstances, where the

New York Court of Appeals has not spoken on the issue,

we must "carefully predict how the highest court of the

state would resolve the uncertainty or ambiguity.” Bank of

New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.

1994). This inquiry requires us to look to the decisions of

the lower state courts and to consider decisions in other

jurisdictions. See id.

Upon our review of the decisional law of the lower court

_ of New York and consideration of the underlying rationale

for such decisions, we conclude that the New York Court

of Appeals would agree with the determination that the

question of whether a plaintiff would have prevailed on

appeal should be decided as a matter of law. Cf Katsaris v.

Scelsi, 453 N.Y.S.2d 994, 996 (Sup. Ct. Broome Co. 1982)

("The judge...must determine what the appellate court

would have done...."); Nunez De Villavicencio v. Cerny,

* When there is uncertainty in state law in a diversity case, it is often

appropriate to certify the unresolved question to the highest court of the

state. See, e.g., Liriano v. Hobart Corp., 132 F.3d 124, 132 (2d Cir.

1998); McCarthy v. Olin Corp., 119 F.3d 148, 153-54 (2d Cir. 1997).

Certification, however, is not proper where the question does not

present a complex issue, there is no split of authority and “sufficient

precedents exist for us to make [a] determination." McCarthy, 119

F.3d at 153-54. Given the narrowness of the issue presented and the

unanimity of extensive precedent -- both in New York and out of New

York, see infra -- we decline to certify this question.

A-8

662 F. Supp. 243, 243-44 (S.D.N.Y. 1987) (following

Katsaris and determining, as a question of law, how the

appellate court would have ruled). Our conclusion is

guided, in part, by the decisions of other courts that have

considered this issue under the state law of their respective

jurisdictions. In fact, "[nJumerous courts have recognized

that the determination of whether an appeal not taken

would have succeeded is within the exclusive province of

the court, not the jury." Steeves v. Bernstein, Shur, Sawyer

& Nelson, P.C., 718 A.2d 186, 191 (Me. 1998) (footnote

and internal quotation marks omitted); see also Charles

Reinhart Co. v. Winiemko, 513 N.W.2d 773, 783084 &

n.40 (Mich. 1994) (noting that at least nineteen

jurisdictions have concluded that the determination of

whether an appeal would have succeeded is a question of

law that "no reported decisions have held otherwise.")

(citing cases). Accordingly, we hold that the district court

properly decided that the determination of causation of

damages here law exclusively with the court.

To rule otherwise -- and hold that a jury should decide

how an appellate court would have ruled -- would

misconstrue the very nature of appellate review. Appellate

courts decide matters as "issue[s] of law, based upon

review of the transcript and...the argument of counsel."

Katsaris, 453 N.Y.S.2d at 996 (quoting Mallen and Levit,

Legal Malpractice (2d ed.) § 583, at 738). Here, Tinelli's

success in his Article 78 appeal would have turned on a

determination of whether the hearing officer's findings

A-9

were "supported by substantial evidence" and whether his

determinations -- including recommended sanctions -- were

"affected by an error of law or [were] arbitrary and

capricious or an abuse of discretion." N.Y.C.P.L.R. 7803;

see also Pell v. Board of Educ., 34 N.Y.2d 222, 230-32

(1974) (discussing the standard of review in an Article 78

appeal). These are purely questions of law. Because "[i]t

is emphatically the province and duty of the judicial

department to say what the law is," Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803), the task of deciding how

an appeal would have been resolved must be left to the

judge and not the jury. See Charles Reinhart Co., 513

N.W.2d at 777-78 (reasoning that "the nature of appellate

practice mandates judicial resolution of the issue" of

whether an appellant would have prevailed); Millhouse v.

Wiesenthal, 775 S.W.2d 626, 628 (Tex. 1989) ("The

question of whether an appeal would have been successful

depends on an analysis of the law and the procedural

rules...A judge is clearly in a better position to make this

determination.").

In light of the foregoing, we find that the determination

of whether Tinelli's "appeal would have been successful

intrinsically involves issues of law within the exclusive

province of the courts," Charles Reinhart Co., 513 N.W.2d

at 784, and hold that the district court properly treated

causation as a matter of law. In light of our holding, we

reject Tinelli's alternative argument that the court below

incorrectly determined that his Article 78 appeal would

A-10

have failed. Upon review of the record, we agree with the

conclusion of the district court that Tinelli's appeal would

not have succeeded because the hearing officer's findings

of misconduct and incompetence were supported by

substantial evidence and because there was no abuse of

discretion recommending Tinelli's termination under the

circumstances. We have also reviewed and considered

Tinelli's other arguments on appeal and find them to be

without merit.

CONCLUSION

For the foregoing reasons, we hereby affirm the order

and judgment of the district court granting defendant's

motion for summary judgment and dismissing the action.

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOSEPH V. TINELLI,

Plaintiff,

-against- 96 CIV. 2827 (KMW)

ORDER ;

FRANK E. REDL, and HANKIN, HANIG,

STALL & CAPLICKI,

: Defendants.

WOOD, U.S.D.J.

In a Report and Recommendation (the "Report") dated

November 17, 1998, Magistrate Judge Eaton recommended

that I grant summary judgement in favor of both

defendants. Plaintiff has objected to the Report; defendants

have responded to plaintiff's objections but have submitted

no objections to the Report. Pursuant to 28 U.S.C. § 636

(b) (1) and Fed. R. Civ. P. 72 (b), the Court reviews de

novo those aspects of the Report to which the parties

object. For the reasons stated below, I adopt the Report in

its entirety and accordingly grant summary judgment in

favor of both defendants.

B-2

I. Background

The facts can be briefly stated as follows, they are set out

in detail to the Report, familiarity with which is assumed.

In December 1988, the Pawling Town Board unanimously

voted to discharge plaintiff from his position as Chief

Enforcement Officer, a position he had held since January

1984. Plaintiff retained the legal services of defendant

Frank E. Redl ("Redl") to assist him in legal services of

defendant Frank E. Redl ("Redl") to assist him in appealing

his discharge. Redl represented plaintiff at hearings before

David Stein ("Stein"), an attorney appointed as Hearing

Officer for the town. At the conclusion of a two day

hearing, Stein found that plaintiff was guilty of one charge

of nonfeasance (for failure to achieve the timely removal of

abandoned vehicles) and two charges of misconduct (for

verbally abusing two of his female employees). Seeking to

overturn Stein's decision, Redl filed an Article 78

proceeding in Supreme Court, Dutchess County; that court

transferred the proceeding to the Appellate Division,

Second Department. Redl failed to perfect the appeal

within the six-month time limit and failed to move for an

extension of time to prefect it. Redl concedes that a jury

might find that his failure to perfect the appeal was a

departure from accepted standards of professional care.

After learning that the Second Department had dismissed

his appeal, for Redl's lack of prosecution, plaintiff filed this

diversity suit for attorney malpractice.

II. Discussion

B-3

Plaintiff claims that Red] committed malpractice in two

respects: (1) by performing poorly at the hearings before

Stein ("Claim One") and (2) by failing to perfect the appeal

challenging Stein's opinion ("Claim Two").' (See Report at

4.) With regard to Claim One, the Magistrate Judge found

that no rational jury could find the Redl's performance

before Stein amounted to malpractice. (See Report at 6-7.)

Plaintiff objects to this aspect of the Report, reiterating his

argument that Redl did not ask Stein for a lesser penalty.

As explained in the Report, it is clear from the hearing

transcript that Redl argued to Stein that termination might

be unduly harsh, and that Stein considered the possibility of

a lesser penalty. (See Stein Opinion at 27-28.)

Accordingly, for the reasons stated in the Report, I agree

with the Magistrate Judge that Redl's performance at the

hearing does not constitute a basis for plaintiff's

malpractice claim.

' The Court notes its agreement with the Magistrate Judge that

summary judgment should be summarily granted in favor of defendant

Hankin, Hanig, Stall & Caplicki because Redl did not join the law firm

until May 1994, which was four years after the appeal was deemed

abandoned and two months after plaintiff learned of Red's failure to

perfect the appeal. In his objections to the Report, plaintiff suggests

that the law firm should be liable because at the time Redl joined the

firm the deadline for applying for an extension to perfect the appeal had

not expired. The Court finds that this assertion alone, even if true, is

insufficient to state a claim for legal malpractice on the part of the law

firm.

B-4

Claim Two (that Redl failed to perfect the appeal to the

Second Division) forms the primary basis for plaintiff's

malpractice claim. As noted in the Report, an action for

damages for legal malpractice in New York "requires

proof of three essential elements: (1) a duty, (2) a breach of

the duty, and (3) proof that actual damages were

proximately caused by the breach of the duty." Marshall v.

Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't. 1991). Because

Red! concedes the first two elements, the Magistrate Judge

properly considered only the question of whether plaintiff's

appeal would have succeeded had Red perfected it.

The Magistrate Judge first determined that the question

of whether an appeal would have been successful is a

question of law to be decided by the "review of the

transcript and record of the underlying action, the argument

of counsel and subject to the same rules of review as should

have been applied by the appellate courts." Katsaris v.

Scelsi, 453 N.Y.S.2d 994, 996 (Sup. Ct., Broome Co.

1982); Nunez De Villavicencio v. Cerny, 662 F. Supp. 243

(S.D.N.Y. 1987) (following Katsaris).’ In deciding the

* In his objections to the Report, plaintiff argues that the question of

whether an appeal would have succeeded is one of fact and not one of

law. Plaintiff objects to the Magistrate Judge's reliance on Katsaris and

states that Katarsis is hardly a definitive statement of New York law on

this issue." Pl. Objs. At 6. As authority for its position, plaintiff cites

only to Chockfoot v. Smith, 571 P.2d 1255 (Or. 1977). This Court

notes that Katarsis is still good law in New York; the Court is not

persuaded to the contrary by plaintiff's citation to a twenty-one year old

Oregon state court decision.

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question of whether the Appellate Division would have

affirmed Stein's report, Magistrate Judge Eaton applied the

legal standard set out in Matter of Pell v. Board of Educ. of

Union Free School Dist. No.1, 356 N.Y.S.2d 833 (Ct. App.

1974).? Ruling on five civil service disciplinary

proceedings, the Court in Pell held that if there is

"substantial evidence" to support a Hearing Officer's

determination, then "the courts have no alternative but to

confirm his determination unless he acted in excess of his

jurisdiction, or in violation of lawful procedure, or

arbitrarily, or in abuse of his discretion." Jd at 839. Article

78 limits judicial review to "such abuses of discretion as

were tantamount to a true question of law." Jd. at 840. The

Magistrate Judge then considers the two arguments put

forth by plaintiff: (1) that the record before Stein did not

contain "substantial evidence" of misconduct, and (2) that

_ Stein abused his discretion by recommending that the

penalty of termination. In response to plaintiffs first

argument, Magistrate Judge Eaton explains that Red! and

his adversary produced and questioned witnesses over the

course of a two day hearing, submitted documentary

evidence, and prepared written arguments. (See Report at

10-11.) Thus, the Magistrate Judge concluded that the

record contained "substantial evidence" to support Stein's

finding of guilt. In response to plaintiff's second argument,

the Magistrate Judge examined the affidavits submitted by

* Both parties agree that, had plaintiff appealed, the Appellate Division

would have been bound by the standard set forth in Matter of Pell.

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both parties’ legal experts and the relevant case law, and the

Magistrate Judge concluded that Stein did not abuse his

discretion by recommending the penalty of termination.

(See Report at 11-14.)

In his objections, plaintiff emphasizes that Redl

admitted to not knowing the exact legal standard that the

Appellate Division would apply to plaintiffs appeal.

Plaintiff argues that, because Redl did not realize that the

Appellate Division would have to determine whether there

was "substantial evidence" presented to the Hearing

Officer, he could not have presented enough evidence to

Stein to preserve the appeal. (See Pl. Objs. at 3-4.) This

Court finds that, although Redl may not have understood

the precise legal standard in an appeal of an Article 78

proceeding, it does not necessarily follow that Stein did not

have sufficient evidence before him to support his findings.

As explained in the Report, Stein heard from several

witnesses, including plaintiff, and reviewed many

documents from both parties prior to issuing his 30-page

opinion. For the reasons set forth in the Report, the Court

finds that Stein had sufficient evidence before him to

render his opinion.

Plaintiff's objections also assert that Stein abused his

power in recommending termination because plaintiff's

charges involved "no moral turpitude such as larceny or

bribe taking.” Pl. Obj. at 10. As Magistrate Judge Eaton

indicates, in the consolidated Pell cases, the court gave a

clear indication that courts should defer to a municipality's

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decision to fire an employee. The Court in that case

unanimously rejected any softening of the penalty of

termination for a teacher who improperly took 21 days of

sick leave, a policeman who worked a second job on two

occasions while on sick leave, and a token clerk who stole

$1.26. See Matter of Pell, 356 N.Y.S.2d at 843-44; Matter

of Abbott, id, 846-847; Matter of Best, id. at 846. (See

Report at 13.) In light of this legal standard, which would

have required the Appellate Court to afford extraordinary

deference to Stein's decision, the Court finds that there is

no authority to support plaintiff's proposition that

termination is a proper penalty only in cases involving

"moral turpitude." Thus, for the reasons stated in the

Report, this Court finds that the Appellate Division would

have found that Stein did not abuse his discretion when he

recommended termination and stated valid reasons for that

penalty. (See Report at 11-14.) Accordingly, the Court

finds that, as a matter of law, Redl is entitled to summary

judgment because plaintiff is unable to show that actual

damages were proximately caused by Redl's alleged

negligence.

III. Conclusion

For the reasons stated above, plaintiffs motion for

summary judgment is granted as to both defendants. The

Clerk of Court is hereby directed to close this case. All

pending motions are moot.

SO ORDERED.

B-8

DATED: New York, New York

February 3, 1999

s/Kimba M. Wood

Kimba M. Wood

United States District Court Judge

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APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

REPORT AND RECOMMENDATION

' TO JUDGE WOOD

JOSEPH V. TINELLI, SR.,

Plaintiff,

-against- 96 Civ 2827 (KMW) (DFE)

FRANK E. REDL, and HANKIN, HANIG,

STALL & CAPLICKI,

Defendants.

DOUGLAS F. EATON,

United States Magistrate Judge.

In this action for attorney malpractice, discovery has

been completed. The defendants moved for summary

judgment on 5/15/98. Plaintiff's attorney requested three

months to respond; I granted this request and he served

opposing papers on 8/13/98. The defendants served reply

papers on 9/11/98.

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For the reasons set forth below, I recommend that the

Court grant summary judgment, with one potential

exception described in my Conclusion.

FACTUAL BACKGROUND

In January 1984 plaintiff Tinelli was hired by the Town

of Pawling ("Town") as its Chief Enforcement Officer. As

such, he was a department head and a supervisor, charged

with monitoring and enforcing state and local building

codes. In December 1988, the Town Board unanimously

voted to discharge him and it notified him by letter that the

Town was not rehiring him for 1989. Plaintiff retained the

legal services of defendant Redl, a sole practitioner. Redl

promptly notified the Town that Tinelli's job was a civil

service position and that he was entitled to a hearing before

and independent hearing officer pursuant to New York

Civil Service Law § 75. Redi represented him at hearings

in March 1989 before David-Stein, a New Jersey attorney

appointed as the Hearing Officer. The transcript of the

hearings (436 pages on two days) is annexed to the 9/11/98

affidavit of Debora Pitman. Post-hearing briefs were

submitted by the Town's attorney and then by Redl. See

Exhs. H and G to the Notice of Motion. In June 1989 Stein

issued a 30-page opinion. See Exh. J to the Notice of

Motion (hereinafter "Stein's Opinion").

Stein found that plaintiff was guilty on one charge of

nonfeasance (failure to achieve the timely removal of

abandoned vehicles) and two charges of misconduct

(verbally abusing two women). Stein's detailed findings

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are important, so I have annexed, at the end of this report,

pages 1-8 and 23-25 of Stein's Opinion. Stein, who was

able to observe plaintiff, concluded as follows:

Tinelli is an intemperate individual. The evidence

indicates he lacks respect for women as equals. The

realities of this society in the late twentieth century is

that Tinelli, with his attitude toward the distaff Sex,

has the potential to incur legal liability on the Town's

behalf.

In addition, Tinelli's behavoir had the effect of

compelling Ms. Evanson to leave her position with

the Town. Evanson was a potentially valuable asset,

with an undergraduate degree in architecture and a

graduate degree from Yale. Tinelli's brief indicates

that he found no fault with Evanson's performance.

Moreover, Tinelli testified that his workload, with

Evanson on staff, was so heavy that he was unable to

carry out his responsibilities. | Tinelli needed

Evanson! Yet, he forced her out of the door.

Tinelli's conduct was contrary to the Town's interests

at the time. :

Moreover, Tinelli showed that he lacked the self-

control necessary to justify his continuation in office,

and there is no reason to believe that he would refrain

from screaming at women in the future. I conclude,

therefore, that it would be futile to reinstate Tinelli.

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See Stein's Opinion at 28-29. In June 1989 the Town

Board unanimously adopted Stein's recommendation. See

Exh. K.

Seeking to overturn the decision of the Hearing Officer

and the Town Board, attorney Redl filed an Article 78

proceeding in Supreme Court, Dutchess County; that court

transferred the proceeding to the Appellate Division,

Second Department in October 1989. See Exhs. L and N.

Within six months after the date of a transfer order, an

appeal is deemed abandoned unless the appellant files the

papers necessary to perfect the appeal. 22 NYCRR §

670.8. Redl failed to perfect the appeal and failed to move

for an extension of time to perfect. He claims that a

Second Department clerk misled him but, for purposes of

this summary judgment motion, he concedes that a jury

might find that his failures were a departure from accepted

standards of professional care.

Meanwhile, Red! also represented plaintiff in other

claims against the Town. In November 1990 Redl sued the

Town for wages for the six months between the Town's

discharge action and the Town's adoption of Stein's

recommendation. And back in April 1989, Redl filed a

complaint with the New York Department of State alleging

that the Town had failed to prosecute code violations which

plaintiff had issued to the Town Crier Restaurant prior to

his discharge. After many extensions of time and a

submission of written arguments, the Department of State

ruled that plaintiff had no standing to complain about the

C-5

Town Crier Restaurant -- a ruling that was later upheld by

Justice George Bernhard in Supreme Court, Dutchess

County.

In March 1994 plaintiff, having consulted another

lawyer, learned that the Second Department had dismissed,

for Redl's lack of prosecution, the appellate challenge to

Stein's decision. Plaintiff, having moved to Arizona,

invoked our Court's diversity jurisdiction and brought the

present suit for attorney malpractice.

PLAINTIFF'S CLAIMS

Initially, it seemed that plaintiff was claiming that Redl

had committed malpractice in five respects:

(1) performing poorly at the hearings before

Stein;

(2) failing to perfect the appeal challenging

Stein's Opinion;

(3) failing to perfect a separate appeal from

Justice Bernhard's ruling that plaintiff lacked

standing to complain about the Town Crier

Restaurant;

(4) failing to collect $13, 411 which the Town

allegedly owed the plaintiff for six months of

back pay (Redl obtained a settlement offer of

$11,000, which plaintiff rejected, see Exhs. S and

T); and

(5) failing to get involved in plaintiff's allegation

that his firing was motivated by his age (69) and

disability (a heart attack) (the State Division of

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Human Rights investigated this allegation and

rejected it, see Exh. TT).

However, it is now clear that plaintiff is not pressing

claims 3, 4 and 5. As to claim 3, he has not produced any

argument showing error in Justice Bernhard's ruling that

plaintiff lacked standing to complain about the Town Crier

Restaurant. As to claims 4 and 5, plaintiff has not

produced any expert opinion specifying malpractice, nor

any evidence that a better attorney would have produced a

better result. Moreover, the Defendants’ 5/15/98

Memorandum (at pp. 18-24) carefully demolished claims 3,

4 and 5 -- and Plaintiff's 8/11/98 Memorandum did not

meet those arguments. See 9/11/98 Reply Memorandum at

pp. 19-20.

Accordingly, plaintiff has reduced his case to claims |

and 2. Preliminarily, I note that the second defendant (the

law firm of Hankin, Hanig, Stall & Caplicki) had no

involvement in claims 1 and 2. Claim 1 involves Redl’s

performance at the "Stein" hearings, which took place in

1989 in Tinelli's presence. Claim 2 involves Redl's failure

to perfect the "Stein" appeal; that failure did not take place

in Tinelli's presence, but Tinelli learned of it in March 1994

-- two months before Redl joined the Hankin law firm. See

Tr. 105 of Exh. A to 8/12/98 Aretakis aff., and see Defs’

Rule 56.1 St. at 9 5. Redl did not join the Hankin firm until

May 1994. Hence it is crystal clear that the Hankin firm is

entitled to summary judgment. I turn now to the case

against Red.

C-7

1. Redl's performance at the hearings before Stein

On claim 1, Tinelli makes only two points, and in a very

perfunctory fashion.

a. Red's alleged failure to ask Stein to

consider a lesser penalty.

Plaintiffs Memorandum, at page 8, falsely asserts as

follows:

The Hearing Officer was not asked by the

defendant REDL to consider, nor did the Hearing

Officer consider any reduced penalty or punishment

other than termination.

On the contrary, see pp. 15-17 of Redl's post-hearing brief,

Exh. G to the Notice of Motion. And see Stein's Opinion

(Exh. J) at p. 22:

The Respondent concludes that as he is rot guilty

of any of the charges, the charges .hould be

dismissed. |

However, were he found guilty of any of the

charges, the Respondent urges that dismissal would

be an unduly harsh and unjust penalty.

Moreover, he attacks the cases cited by the town

as inapposite on the grounds that in those cases the

discharged employees had been engaged in a

longstanding pattern of conduct, whereas the

Respondent has been accused only of isolated

incidents.

Moreover, Stein's Opinion at pp. 27-28 shows that he

carefully considered the option of a lesser penalty:

desposition as

C-8

I find that termination is the appropriate penalty for

the Respondent's guilt of the First, Second and Fourth

Charges. Tinelli's failure to achieve the timely

removal of the abandoned vehicles from the Sonita

Road property would not, standing alone, justify

Tinelli's dismissal.

Rather, it is Respondant's misconduct and

imcompetance in dealing with Mrs. Ford and Ms.

Evanson which underlies my recommendation that

the Town discharge Mr. Tinelli.

b. Redl's alleged failure to bring some

documents to Stein's attention.

Plaintiff's Memorandum, at p. 8, also asserts:

The Defendant REDL failed to have documents

responsive to subpoenas produced by the Town of

Pawling at the plaintiff's March 17, 1989 and

March 24, 1989 hearings.

Those subpoenaed documents were identified as Tinelli's

"evaluations regarding my conduct,

evaluations regarding the performance of my duties,

evaluations in the performance of resolving problems." See

151 of Exh. A to 8/12/98 Aretakis aff. But Redl

testified:

The Town was not contesting the fact that he had

a clean [prior] record. There was really no sense,

nothing to be gained by introducing the [personnel]

file.

ES

C-9

See Tr. 80 of Exh. B to 8/12/98 Aretakis aff. This

statement, taken from Redl's desposition, was submitted as

an exhibit by plaintiff. Plaintiff's papers, however, do not

dispute that "[t] he Town was not contesting the fact that he

had a clean [prior] record." Tinelli's prior record with the

Town covered only five years. See the second day of

Hearing at Tr. 94. In any event, Stein's Opinion is

consistent with an undisputed assumption that Tinelli had a

clean prior record. Red] had no obligation to waste time by

documenting what was undisputed.

Accordingly, no rational jury could find that Redl's

performance before Stein amounted to malpractice.

2. Red's failure to perfect the appeal challenging

Stein's Opinion

Under New York law, an action for damages for legal

malpractice "requires proof of three essential elements: (1)

a duty, (2) a breach of the duty, and (3) proof that actual

damages were proximately caused by the breach of the

duty." Marshall v. Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't

1991). For purposes of this summary judgment motion,

Redl concedes the first two elements -- he assumes that a

jury might find that his failure to perfect the appeal was a

departure from accepted standards of care. But he submits

that plaintiff is unable to prove the third element, because

plaintiff is unable to prove that the appeal would have been

successful.

The question of whether an appeal would have been

successful is a question of law -- a question to be decided

C-10

by "review of the transcript and record of the underlying

action, the argument of cousel and subject to the same rules

of review as should have been applied by the appellate

courts." Katsaris v. Scelsi, 453 N.Y.S.2d 994, 996-97 (Sup.

Ct., Broome Co. 1982), quoted and followed by Judge

Metzner in Nunez De Villavicencio v. Cerny, 662 F. Supp.

243 (S.D.N.Y. 1987). Accord, Charles Reinhart Co. v.

Winiemko, 444 Mich. 579 (1994) (discussing and following

Katsaris and decisions from 19 other jurisdictions). Even

more recently, accord, Steeves v. Bernstein, Shur, Sawyer

& Nelson, P.C., 718 A.2d 186 (Me. 1998). Defendants’

5/15/98 Memorandum annexes the full text of Charles

Reinhart, and Defendants’ 9/11/98 Reply Memorandum

annexes the full text of Steeves. Plaintiff cites no case to

the contrary, in New York or any other jurisdiction.

Accordingly, I am confident that Katsaris accurately states

the law of New York.

Our Court must decide, therefore, the following question

of law: Would the Appellate Division have affirmed Stein's

report if Redl had perfected the appeal? In deciding this

question, we are bound (as the Appeilate Division would be

bound) by the standards set forth in the leading case from

the highest court of New York. That case is Matter of Pell

v. Board of Educ. of Union Free School Dist. No. 1, 356

N.Y.S.2d 833 (Ct. App. 1974). Ruling on five civil service

disciplinary proceedings, Pell stated emphatically:

[N] either the Appellate Division nor the Court of

Appeals has power to upset the determination of an

Nn en, ee

C-11

administrative tribunal on a question of fact * * *

beyond seeing to it that there is "substantial

evidence."

Pell, 356 N.Y.S.2d at 839, quoting Cohen and Kroger,

Powers of the New York Court of Appeals, § 108, p. 460. If

there was "substantial evidence" to support the Hearing

Officer's determination, then "the courts have no alternative

but to confirm his determination" unless he acted in excess

of his jurisdiction, or in violation of lawful procedure, or

arbitrarily, or in abuse of his discretion. Jd. at 839. Article

78 limits judicial review to "such abuses of discretion as

were tantamount to a true question of law." /d. at 840.

In our case, Tinelli argues that (a) the record before

Hearing Officer Stein did not contain "substantial

evidence” of misconduct, and (b) that Stein abused his

discretion by recommending the penalty of termination.

On these two issues, each side has presented a

distinguished attorney's opinion. Plaintiff's expert is Steven

J. Ahmuty, Jr., who writes a column in the New York Law

Journal on appellate practice. His affidavit is annexed to

the 8/12/98 Aretakis affidavit. Defendant's expert is

Maurice F. Curran, who successfully appealed on behalf of

the Trustees of Mamaroneck is one of the five cases

consolidated before the New York Court of Appeals in

Pell. Mr. Curran's opinion is at Exhibit DDD to the Notice

of Motion. I have carefully considered the opinions of both

men.

a. The record contained "substantial evidence"

C-12

to support Stein's detailed findings.

In the March 1989 hearings, Redl and his adversary

produced and questioned witnesses, submitted documentary

evidence, and prepared written arguments. The record thus

created contained "substantial evidence" to support Stein's

finding of guilt.

When Tinelli spoke with Mrs. Ford, a Town resident,

his conduct was abusive. A witness testified that she

overheard Tinelli tell Mrs. Ford said "she was just a

- housewife, and ... he would only do business through her

attorney." The volume of Tinelli's voice during this

exchange was so loud that it upset the overhearing witness.

See 3/17/89 Hearing Tr. 26-28.

When Tinelli spoke with Ms. Evanson, a new employee

with an architecture degree from Yale, she was "shaken"

and "stunned." See id. at Tr. 91-92. The incident was

overheard by Margaret Meany, who testified in detail that

Tinelli was "screeching" and "screaming" for ten minutes,

that she told him his conduct was inappropriate, and that

Tinelli responded that "He had a right to do that because he

was a man and men are allowed to say that ... a man can

talk like that, unless you are a gay from California." See id.

at Tr. 131-38. At the second day at Tr. 219-21, Tinelli

testified that he did not remember this conversation with

Meany, but conceded that she was "a sincere person." As

to Tinelli's credibility, Stein found that Tinelli torpedoed

himself by engaging in a ruse during the first part of his

testimony:

C-13

Tinelli's attempt to convince me that his normal

voice was piercingly loud by screaming his testimony

was ludicrous. He rapidly exhausted himself and

testified at a clear, but normal conversational level.

This fruitless ruse completely undermined Tinelli's

credibility.

See Stein's Opinion at pp. 23-24, and see second day of

Hearing at Tr. 109-10, 211-15.

b. Stein did not abuse his discretion by

recommending the penalty of

termination.

In Pell the Court of Appeals ruled that a hearing officer

abuses his discretion when "a result is shocking to one's

sense of fairness." Pell, 356 N.Y.S.2d at 842. One's sense

of fairness is shocked "if the sanction imposed is so grave

in its impact on the individual subjected to it that it is

disproportionate to the misconduct ... or to the harm or risk

of harm to the agency or institution ...."_ Jd.

Stein found that Tinelli's behavior towards women

clearly presented a risk of harm to the Town in the form of

potential lawsuits. Moreover, he found that Tinelli's

conduct had already harmed-the Town, by compelling Ms.

Evanson, a valuable employee, to leave (until he was fired).

See Stein Opinion at pp. 28-29, quoted at page 2 of this

Report. Moreover, Stein (who had observed Tinelli for two

full days) found that "Tinelli showed that he lacked the

self-control necessary to justify his continuation in office,

and there is no reason to believe that he would refrain from

C-14

screaming at women in the future." See Stein Opinion at p.

29.

In spite of all this, Mr. Ahmuty's affidavit, at | 4 12, 16

and 18, opines in conclusory fashion that the Appellate

Division would have found that termination was an abuse

of discretion. But Mr. Ahmuty does not note Stein's

reasons, let alone refute them.

In the consolidated Pell cases, the high court of New

York gave a clear idea of how very deferential courts

should be to a municipality's decision to fire an employee.

By a vote of 7 to 0, the Court rejected any softening of the

penalty of termination for (a) a teacher who improperly

took 21 days of sick leave, (b) a policeman who worked a

second job on two dates while on sick leave and (c) a token

clerk who stole $1.26. See Matter of Pell, 356 N.Y.S.2d at

843-44; Matter Of Abbott, id. at 846-47; Matter of Best, id.

at 846. Moreover, the Court stated:

While heretofore the courts have, in some

instances, considered prior good records of service

and revoked a sentence of dismissal, substituting

therefor a lesser penalty ..., it is becoming

increasingly clear that the nature of the misconduct

charge when weighed with the action taken, where

such action is reasonably within the permissible

scope of the disciplinary agency, must be accorded

greater weight or recognition.

See id. at 846.

C-15

In 1987 the Court of Appeals spoke again on the subject

"of civil service disciplinary hearings:

It is basic that the decision by an Administrative

Hearing Officer to credit the testimony of a given

witness is largely unreviewable by the courts, who

are disadvantaged in such matters because their

review is confined to a lifeless record. The Hearing

Officer before whom the witnesses appeared, on the

other hand, was able to perceive the inflections, the

pauses, the glances and gestures--all the nuances of

speech and manner that combine to form an

impression of either candor or deception. * * * "The

courts may not weigh the evidence or reject the

choice made by [such agency] where the evidence is

conflicting and room for choice exists" ....

Berenhaus v. Ward, 522 N.Y.S.2d 478, 481-82 (Ct. App.

1987).

The Appellate Divisions have heeded the clear messages

of Pell and Berenhaus. The cases cited to Hearing Officer

Stein in the Town's brief, Exh, H at pp. 22-25, included

Koch v. Webster Central School Dist., 453 N.Y.S.2d 491

(4" Dep't), aff'd, 457 N.Y.S.2d 477 (Ct. App. 1982) (school

custodian "had a long record of competent service" but was

properly terminated because he "hollered at, insulted and

abused his co-employees") and Botkin v. Board of

Education, 504 N.Y.S.2d 521 (2™ Dep't 1986) (3-1)

(school secretary for over 12 years was properly terminated

C-16

because "she had shouted at various staff members and had

refused to follow orders of her supervisor").

Moreover, in 1998 Redl's attorney searched for every

decision which reviewed an administrative disciplinary

decision and cited to Pell -- in Appellate Division Reports

2d, volumes 133 through 176, covering the period from

October 1987 to September 1991 (two years before and two

years after the Second Department received Redl's

unperfected Article 78 appeal). This research revealed that,

in those four years, the four Appellate Divisions rejected

the vast majority of Article 78 appeals which cited Pell (45

out of 48). See Defs' Reply Mem., pp. 11-16. Of the three

appeals that were not rejected, two cases were not on point.

See id., pp. 15-16. Only one case presents even a glimmer

of hope for plaintiff. That one case was McFadden v.

Board of Education, 544 N.Y.S.2d 885 (2d Dep't 1989), in

which the Second Department slightly reduced the

suspension of a school teacher for verbally abusing

students. In an extremely terse opinion, the Second

Department found that the record contained substantial

evidence to support the finding of guilt; it merely ruled that

the nine-month suspension without pay was excessive, and

suggested a penalty of no more than six months.

In view of all of these factors, I am firmly convinced

that the Appellate Division would have found that Stein did

not abuse his discretion when he recommended termination

and articulated sensible reasons for that penalty.

C-17

CONCLUSION

As set forth above, I conclude that no rational jury could

find in favor of Tinelli's perfunctory claim that Redl's

performance in front of Stein was inadequate. I also

conclude that the Appellate Division would have affirmed

Stein's Opinion if Redl had perfected the appeal. I

recommend that the Court grant summary judgment in

favor of Redl, with one potential exception -- if Tinelli has

evidence that he paid money to Redl for any work that Red!

performed after June 1989 on the appeal from the Stein

Opinion, then Tinelli should be allowed to sue for the

return of that money, and indeed to move for summary

judgment for that amount.

Pursuant to 28 U.S.C. 636(b)(1)(B), any party may

object to this recommendation within 10 business days

from November 16, 1998 by filing written objections with

the Clerk of the U.S. District Court and mailing copies (a)

to the opposing party, (b) to the Hon. Kimba M. Wood,

U.S.D.J. at Room 1610, 500 Pearl Street, New York, NY

10007 and (c) to me at Room 740, 500 Pearl Street. Failure

to file objections within 10 business days will preclude

appellate review. See 28 U.S.C. 636(b)(1); Thomas v. Arn,

474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d

55, 58 (2d Cir. 1988). Any request for an extension of time

must be addressed to the District Judge.

s/DOUGLAS F. EATON

C-18

DOUGLAS F. EATON

United States Magistrate Judge

Dated: New York, New York

November 16, 1998