May 29, 2019

Election of the forum in which the appeal is filed determines the procedures that are to be followed


Subdivision 1 of Section 76 of the Civil Service Law, "Appeals from determinations in disciplinary proceedings," in pertinent part provides that an officer or employee may appeal an adverse disciplinary determination made by the appointing authority to either [1] the State Civil Service [CSC] or the municipal civil service commission having jurisdiction or [2] filing a timely CPLR Article 78 action in Supreme Court.*

The New York City Department of Corrections [DOC] filed disciplinary charges against one of its employees [Petitioner] alleging Petitioner had violated certain DOC rules. DOC conducted a disciplinary hearing pursuant to Civil Service Law §75, during which proceeding Petitioner admitted having violated such rules. DOC found Petitioner guilty of the charges preferred against him and terminated his employment.

DOC then advised Petitioner that he could appeal the appointing officer's determination to either the Civil Service Commission [CSC] or to Supreme Court in accordance with CPLR Article 78. Petitioner was also advised that were he to elect to appeal to the CSC, CSC's determination would be final and conclusive.

Petitioner elected to appeal the determination to the CSC and, after a hearing, on August 20, the CSC affirmed the appointing officer's determination and the penalty imposed by the appointing authority. Petitioner then initiated a CPLR Article 78 proceeding seeking a judicial review the appointing officer's determination. DOC moved to dismiss the proceeding.

Supreme Court granted the DOC's motion dismissing Petitioner's Article 78 proceeding and Petitioner appealed.

Initially the Appellate Division noted that "[u]nless a shorter time is provided in the law authorizing the proceeding," an Article 78 action against a entity or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the person or entity seeking the judicial review.  Further, said the court, "An administrative determination becomes final and binding ... when the individual or body seeking review has been aggrieved by it".

In this instance the Appellate Division found that DOC's determination terminating Petitioner's employment was issued on June 4, 2015, and the CSC decision sustaining that determination was issued in August. As Petitioner did not commence this CPLR Article 78 proceeding until following February, the Appellate Division concluded that Petitioner's Article 78 proceeding was "time-barred."

In addition, the Appellate Division noted that Civil Service Law §76(3) provides that "[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court." Accordingly, said the court, because Petitioner elected to appeal to the CSC, he may only seek judicial review if the DOC has acted illegally, unconstitutionally, or in excess of its jurisdiction. Here, however, the Article 78 petition submitted to Supreme Court did not allege or present facts demonstrating that the DOC acted illegally, unconstitutionally, or in excess of its jurisdiction. Accordingly, the Appellate Division held that Petitioner failed to state any basis upon which his appeal could be considered by the court.

* An appeal to the State or municipal commission must be filed in writing within twenty days after service of written notice of the disciplinary determination. In the event such notice is provided by registered mail, an additional three days to file the appeal is permitted.

The decision is posted on the Internet at:

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