Gomez v. Safir

271 A.D.2d 246, 707 N.Y.S.2d 35, 2000 N.Y. App. Div. LEXIS 3825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (William McCooe, J.), entered March 5, 1999, which, in a CPLR article 78 proceeding by a police officer to annul respondent Police Department’s determination denying petitioner’s request for permission to engage in off-duty employment as a professional boxer, granted respondents’ cross-motion to dismiss the proceeding as time-barred, unanimously affirmed, without costs.

The motion court correctly held that the determination denying petitioner’s request to engage in off-duty employment as a professional boxer became final and binding within the meaning of CPLR 217 (1) when petitioner was informed of the denial of his administrative appeal (see, Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832; cf., Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). Petitioner’s attempt to resort to contractual grievance procedures, rejected by respondent Police Commissioner on the ground that the matter does not involve a contractual right subject to the grievance process, did not toll the four-month limitations period (see, Matter of Lubin v Board of Educ., 60 NY2d 974, cert denied 469 US 823; Matter of Jones v McGuire, 92 AD2d 788). In any event, the determination was not arbitrary and capricious. Under General Municipal Law § 208-d, a police officer may engage in off-duty employment provided, inter alia, it does not “affect his physical condition to the extent that it impairs his ability to efficiently perform [his or her regular] duties.” Given this qualification, it cannot be said that the blanket prohibition against professional boxing apparently applied here is so lacking in reason as to be arbitrary (see, New York State Assn, of Counties v Axelrod, 78 NY2d 158, 166). Concur — Rosenberger, J. P., Williams, Tom, Rubin and Buckley, JJ.