An employee [Petitioner] of the New York City Department of Correction [DOC] was served with disciplinary charges, which disciplinary charges were sustained by a DOC human resources representative. Subsequently Petitioner executed a waiver of his right to a hearing pursuant to Civil Service Law §75.
Petitioner then commenced the instant to CPLR Article 78 proceeding seeking a court order compelling DOC to submit his disciplinary case to the New York City Office of Administrative Trials and Hearings [OATH] for adjudication pursuant to Civil Service Law §75.
Supreme Court granted Petitioner's motions and denied DOC's cross-motion to dismiss Petitioner's Article 78 action. DOC appealed the Supreme Court's determinations.
The Appellate Division reversed Supreme Court's order and judgment, on the law, with costs, granted DOC's petition and dismissed Petitioner's Article 78 proceeding.
Citing Matter of Kaneev v City of New York Envtl. Control Bd., 149 AD3d 742, the Appellate Division explained that a proceeding initiated pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner.
In the instant matter the Appellate Division noted that Petitioner executed the waiver on February 11, 2021, and DOC's labor relations representative upheld the disciplinary charges against the Petitioner on August 4, 2021. Since Petitioner did not commence the instant proceeding until September 1, 2022, the Appellate Division held that Petitioner's Article 78 proceeding was time-barre, citing CPLR 217(1).
In the words of the Appellate Division, Supreme Court "should have granted DOC's cross-motion to dismiss Petitioner's Article 78 action on the ground that the proceeding was time-barred" and that "The parties' remaining contentions need not be reached in light of the foregoing".
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