Centeno v. City of New York

Appellate Division of the Supreme Court of New York

Centeno v. City of New York

115 A.D.3d 537, 981 N.Y.S.2d 923

Appellate Division of the Supreme Court of the State of New York·Decided March 18, 2014·Published·Cited by 6 cases

Opinion

Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered on or about October 18, 2012, granting respondents’ cross motion to deny the petition seeking to annul a decision of New York City Civil Service Commission (CSC), dated November 30, 2011, which affirmed a determination by the New York City Department of Sanitation terminating petitioner’s employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner concededly failed to timely serve CSC, which was a necessary party because it was the agency that made the decision challenged by the petition (see Johnson v Scholastic, Inc., 52 AD3d 375 [1st Dept 2008]). This failure to serve a necessary party required the dismissal of the proceeding (see Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 AD3d 318 [1st Dept 2006], lv denied 7 NY3d 710 [2006]). The court properly declined to grant an extension of time, notwithstanding the apparent absence of prejudice, due to the [538]*538petition’s lack of merit (see Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367 [1st Dept 2007]). Were we to reach the merits, under the extremely narrow scope of review applicable, as petitioner administratively appealed to CSC, we would find that petitioner fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction (see Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 323-324 [1991]; see also Civil Service Law § 76 [3]).

Concur — Mazzarelli, J.E, Sweeny, Andrias, DeGrasse and Richter, JJ.

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Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered on or about October 18, 2012, granting respondents’ cross motion to deny the petition seeking to annul a decision of New York City Civil Service Commission (CSC), dated November 30, 2011, which affirmed a determination by the New York City Department of Sanitation terminating petitioner’s employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner concededly failed to timely serve CSC, which was a necessary party because it was the agency that made the decision challenged by the petition (see Johnson v Scholastic, Inc., 52 AD3d 375 [1st Dept 2008]). This failure to serve a necessary party required the dismissal of the proceeding (see Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 AD3d 318 [1st Dept 2006], lv denied 7 NY3d 710 [2006]). The court properly declined to grant an extension of time, notwithstanding the apparent absence of prejudice, due to the [538]*538petition’s lack of merit (see Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367 [1st Dept 2007]). Were we to reach the merits, under the extremely narrow scope of review applicable, as petitioner administratively appealed to CSC, we would find that petitioner fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction (see Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 323-324 [1991]; see also Civil Service Law § 76 [3]).

Concur — Mazzarelli, J.E, Sweeny, Andrias, DeGrasse and Richter, JJ.

Centeno v. City of New York, 115 A.D.3d 537, 981 N.Y.S.2d 923 (N.Y. Ct. App. 2014).

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