Saini v. Civil Service Commission

186 A.D.2d 436

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1992
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Milton L. Williams, J.), entered June 22, 1992, which, in a proceeding pursuant to CPLR article 78 to annul respondent’s determination affirming the Department of Transportation’s decision to terminate petitioner’s employment, granted respondent’s cross-motion to dismiss the petition for legal insufficiency, unanimously affirmed, without costs.

We agree with respondent that although the 1986 memorandum should have been removed from petitioner’s personnel file pursuant to the applicable collective bargaining agreement, and not considered by the Administrative Law Judge, the matter is nevertheless beyond judicial review since no issues are raised as to whether the Department of Transportation or respondent acted in excess of their authority or in violation of the Constitution or of any statutes or their own regulations (Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 324; Matter of Griffin v New York City Dept. of Correction, 179 AD2d 585). In any event, since the Administrative Law Judge did not review the petitioner’s file until after his determination on the charges and specifications, the error had no effect on the fact-finding process, and the passing reference to the memorandum was harmless (see, Matter of S. & J. Pharmacies v Axelrod, 91 AD2d 1131, 1132-1133). Concur — Sullivan, J. P., Wallach, Kupferman and Ross, JJ.