# Petition for Writ of Certiorari — Tinelli v. Redl

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 813

## Text

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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iV

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

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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.

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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.

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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

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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.

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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

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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

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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

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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"

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1025%3A1. Public record. Not legal advice.