Malloy v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Malloy v. New York City Health & Hospitals Corp.

208 A.D.2d 542, 617 N.Y.S.2d 36, 1994 N.Y. App. Div. LEXIS 9273

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 1994

StatusPublished

Cited by2 cases

This text of 208 A.D.2d 542 (Malloy v. New York City Health & Hospitals Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malloy v. New York City Health & Hospitals Corp., 208 A.D.2d 542, 617 N.Y.S.2d 36, 1994 N.Y. App. Div. LEXIS 9273 (N.Y. Ct. App. 1994).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Health and Hospitals Corporation abolishing the position of Assistant Physicist, dated October 2, 1991, the appeal is from a judgment of the Supreme Court, Queens County (Leviss, J.), dated January 29, 1993, which dismissed the proceeding as barred by the Statute of Limitations.

Ordered that the judgment is affirmed, with costs.

In this proceeding the petitioner is seeking to be reassigned to the Queens Hospital Center with back pay based upon allegations that he was wrongfully discharged. He claims he was discharged under the guise that his position was being abolished. Given that the respondent’s decision to abolish the petitioner’s position "due to budgetary restrictions” and to terminate his employment became final and binding in October 1991 (see, Matter of Village of Westbury v Department of Transp., 75 NY2d 62, 72), this proceeding, which was commenced in August 1992, is barred by the four-month Statute of Limitations (see, CPLR 217; see also, Matter of Lubin v Board of Educ., 60 NY2d 974, cert denied 469 US 823; Matter of De Milio v Borghard, 55 NY2d 216, 220).

The petitioner’s reliance upon Matter of Curtis v Board of Educ. (107 AD2d 445), is misplaced. There, the petitioner’s position as automotive mechanic crew leader was abolished at a time during which disciplinary proceedings were pending against him. He subsequently learned that the respondent [543]*543planned to recreate the position of automotive mechanic crew leader as soon as the preferred list on which he was named had expired. His demand to be rehired was denied, and he commenced a proceeding pursuant to CPLR article 78 within four months of that denial. Under those circumstances, the Appellate Division, Fourth Department, held that the proceeding was timely commenced. Here, in contrast, the petitioner never made an unsuccessful demand to be rehired after his discharge and was, in fact, rehired when the position which he previously held became available at another hospital. Thompson, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Health and Hospitals Corporation abolishing the position of Assistant Physicist, dated October 2, 1991, the appeal is from a judgment of the Supreme Court, Queens County (Leviss, J.), dated January 29, 1993, which dismissed the proceeding as barred by the Statute of Limitations.

Ordered that the judgment is affirmed, with costs.

In this proceeding the petitioner is seeking to be reassigned to the Queens Hospital Center with back pay based upon allegations that he was wrongfully discharged. He claims he was discharged under the guise that his position was being abolished. Given that the respondent’s decision to abolish the petitioner’s position "due to budgetary restrictions” and to terminate his employment became final and binding in October 1991 (see, Matter of Village of Westbury v Department of Transp., 75 NY2d 62, 72), this proceeding, which was commenced in August 1992, is barred by the four-month Statute of Limitations (see, CPLR 217; see also, Matter of Lubin v Board of Educ., 60 NY2d 974, cert denied 469 US 823; Matter of De Milio v Borghard, 55 NY2d 216, 220).

The petitioner’s reliance upon Matter of Curtis v Board of Educ. (107 AD2d 445), is misplaced. There, the petitioner’s position as automotive mechanic crew leader was abolished at a time during which disciplinary proceedings were pending against him. He subsequently learned that the respondent [543]*543planned to recreate the position of automotive mechanic crew leader as soon as the preferred list on which he was named had expired. His demand to be rehired was denied, and he commenced a proceeding pursuant to CPLR article 78 within four months of that denial. Under those circumstances, the Appellate Division, Fourth Department, held that the proceeding was timely commenced. Here, in contrast, the petitioner never made an unsuccessful demand to be rehired after his discharge and was, in fact, rehired when the position which he previously held became available at another hospital. Thompson, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.

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208 A.D.2d 542, 617 N.Y.S.2d 36, 1994 N.Y. App. Div. LEXIS 9273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malloy-v-new-york-city-health-hospitals-corp-nyappdiv-1994.

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