De Cook v. City of New York

173 A.D.2d 305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered March 1, 1990, which granted defendant’s motion for summary judgment and dismissed the complaint, unanimously affirmed, without costs.

The complaint, which was served in or around December, 1987, structured in the form of a class action, alleges that the Department of Sanitation’s sick leave policy deprives the purported class of plaintiffs of their liberty, right to travel, freedom to attend religious services, their freedom of association and their right to counsel as guaranteed under the United States Constitution, without due process of law. Inasmuch as plaintiff failed to either seek or obtain class certification, however, the complaint must be viewed solely with respect to the injury sustained or threatened to be sustained by plaintiff. In that regard, we agree with the IAS part that the papers submitted in opposition to defendant’s motion for summary judgment failed to demonstrate a triable issue of fact. Accordingly, we need not reach the constitutional issues raised by plaintiff on this appeal, including the challenge raised with respect to plaintiff’s right to the free exercise of religion as guaranteed under the First Amendment to the United States Constitution, inasmuch as plaintiff has not shown in other than the most conclusory terms that he suffered any deprivation of such rights with respect to the regulations as applied to him. In so doing, however, we do not preclude ourselves from revisiting the issues in the appropriate context, and upon a more substantial record. Concur— Sullivan, J. P., Rosenberger, Wallach, Asch and Kassal, JJ.