Rodriguez v. City of Yonkers

Appellate Division of the Supreme Court of New York

Rodriguez v. City of Yonkers

279 A.D.2d 632, 719 N.Y.S.2d 872, 2001 N.Y. App. Div. LEXIS 860

Appellate Division of the Supreme Court of the State of New York·Decided January 29, 2001·Published·Cited by 1 cases

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent City of Yonkers terminating the petitioner’s employment as an environmental maintenance worker due to excessive absences, effective March 16, 1999, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Fredman, J.), entered June 6, 2000, which denied the petition and dismissed the proceeding as time-barred.

Ordered that the judgment is affirmed, with costs.

“[T]he gravamen of the [petitioner’s] claim, that he was fired by the city without notice of the charges, a hearing, or other due process, presents the classic formulation of an article 78 proceeding and ‘whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary, capricious or an abuse of discretion’ (CPLR 7803 [3])” (Foster v City of New York, 157 AD2d 516, 518). Since this proceeding was commenced more than four months after the determination was rendered and finalized, it is time-barred and must be dismissed (see, Kowalczyk v Ricci, 269 AD2d 865; Broderick v Board of Educ., 253 AD2d 836; Vanmaenen v Hewlett-Woodmere Pub. Schools, 226 AD2d 151).

The petitioner’s remaining contentions are without merit. Krausman, J. P., S. Miller, Luciano and Feuerstein, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the respondent City of Yonkers terminating the petitioner’s employment as an environmental maintenance worker due to excessive absences, effective March 16, 1999, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Fredman, J.), entered June 6, 2000, which denied the petition and dismissed the proceeding as time-barred.

Ordered that the judgment is affirmed, with costs.

“[T]he gravamen of the [petitioner’s] claim, that he was fired by the city without notice of the charges, a hearing, or other due process, presents the classic formulation of an article 78 proceeding and ‘whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary, capricious or an abuse of discretion’ (CPLR 7803 [3])” (Foster v City of New York, 157 AD2d 516, 518). Since this proceeding was commenced more than four months after the determination was rendered and finalized, it is time-barred and must be dismissed (see, Kowalczyk v Ricci, 269 AD2d 865; Broderick v Board of Educ., 253 AD2d 836; Vanmaenen v Hewlett-Woodmere Pub. Schools, 226 AD2d 151).

The petitioner’s remaining contentions are without merit. Krausman, J. P., S. Miller, Luciano and Feuerstein, JJ., concur.

Rodriguez v. City of Yonkers, 279 A.D.2d 632, 719 N.Y.S.2d 872, 2001 N.Y. App. Div. LEXIS 860 (N.Y. Ct. App. 2001).

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279 A.D.2d 632 (Rodriguez v. City of Yonkers) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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