Jadav v. New York City Transit Authority

70 A.D.2d 853, 418 N.Y.S.2d 37, 1979 N.Y. App. Div. LEXIS 12420

Opinion

— Judgment, Supreme Court, New York County, entered June 15, 1977, granting, inter alia, defendant Transit Authority’s cross motion to dismiss, unanimously affirmed, without costs or disbursements. Special Term was correct in holding that service by certified mail of the notice of petition and petition in this article 78 proceeding was insufficient to confer jurisdiction over the Transit Authority. (Matter of Harlem Riv. Consumers Coop, v State Tax Comm., 44 AD2d 738, afid 37 NY2d 877; see CPLR 403, subd [c].) Nor is there merit to petitioner’s argument that the Transit Authority is estopped from raising the jurisdictional defect. Petitioner received the Transit Authority’s motion papers raising the issue of the defective service within four months of his dismissal. The period of limitation provided for in CPLR 217 runs from the date of dismissal. (See Matter of Fryer v Broome County Bd. of Supervisors, 37 AD2d 755.) Special Term, however, also found that the petition failed to state a cause of action because petitioner’s services were terminated while he was a probationary employee. As the Transit Authority commendably concedes in its brief, there was an insufficient basis in the record to justify such a conclusion. Finally, we note that petitioner has chosen not to pursue his appeal against the City of New York. Concur — Murphy, P. J., Sullivan, Markewich, Lupiano and Silverman, JJ.