Rubino v. City of New York

Appellate Division of the Supreme Court of New York

Rubino v. City of New York

44 A.D.3d 537, 843 N.Y.S.2d 506

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

DecidedOctober 25, 2007

StatusPublished

This text of 44 A.D.3d 537 (Rubino v. City of New York) 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.

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Rubino v. City of New York, 44 A.D.3d 537, 843 N.Y.S.2d 506 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 19, 2006, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly deemed this action a CPLR article 78 proceeding and dismissed it based on the four-month statute of limitations in CPLR 217 (1) (see e.g. Foster v City of New York, 157 AD2d 516 [1990]). Contrary to plaintiffs claim, there was an administrative determination that he could challenge in an article 78 proceeding, namely, defendants’ notification, shortly before April 13, 2004, that plaintiff was not entitled to a hearing because his resignation had been found. However, plaintiff did not bring this action until March 2005.

Plaintiff’s argument for a factual hearing as to when he ceased to be a New York State resident is unavailing. The verified complaint states that “at all times hereinafter mentioned the Plaintiff resides” in New Jersey (emphasis added). His office was thus vacated (Public Officers Law § 30 [1] [d]). Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.

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Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 19, 2006, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly deemed this action a CPLR article 78 proceeding and dismissed it based on the four-month statute of limitations in CPLR 217 (1) (see e.g. Foster v City of New York, 157 AD2d 516 [1990]). Contrary to plaintiffs claim, there was an administrative determination that he could challenge in an article 78 proceeding, namely, defendants’ notification, shortly before April 13, 2004, that plaintiff was not entitled to a hearing because his resignation had been found. However, plaintiff did not bring this action until March 2005.

Plaintiff’s argument for a factual hearing as to when he ceased to be a New York State resident is unavailing. The verified complaint states that “at all times hereinafter mentioned the Plaintiff resides” in New Jersey (emphasis added). His office was thus vacated (Public Officers Law § 30 [1] [d]). Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.

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Bluebook (online)

44 A.D.3d 537, 843 N.Y.S.2d 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubino-v-city-of-new-york-nyappdiv-2007.

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