Roman v. New York City Housing Authority

172 A.D.2d 432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1991
• Status: Published

Opinion

Order of the Supreme Court, Bronx County (Bertram Katz, J.), entered on September 11, 1989, which, inter alia, dismissed the petition as untimely, unanimously modified, on the law, the petition reinstated, and the matter remanded for a hearing to determine whether petitioner is a permanent, tenured employee, without costs.

After working for the New York City Housing Authority for thirteen years, petitioner was promoted to the position of probationary plasterer. By letter dated August 9, 1988, in the final month of the one year probationary period, petitioner was terminated from his new position. The transfer card completed by respondent upon petitioner’s promotion does not indicate whether petitioner’s permanent tenured status was preserved.

The Motion Court dismissed the petition as untimely. CPLR 217 requires that this CPLR article 78 petition be commenced within four months of a final determination. The Motion Court measured the limitations period from the date of the initial termination, August 19, 1988, and held that the request by respondent for reinstatement on March 15, 1989, did not toll the limitations period. The article 78 proceeding was commenced on July 14, 1989, within four months of the request for reinstatement.

On this record the timeliness of the petition cannot be determined because petitioner’s status is unclear. A hearing is necessary to determine whether petitioner’s thirteen year tenure as a caretaker confers upon him the status of a tenured, permanent employee entitled as of right to seek reinstatement. (See, Matter of Hicks v Fogg, 79 AD2d 258.) Concur—Murphy, P. J., Rosenberger, Wallach and Smith, JJ.