Santella v. Hoberman

29 A.D.2d 655, 286 N.Y.S.2d 647, 1968 N.Y. App. Div. LEXIS 4926

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1968
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review the respondent Authority’s dismissal of petitioner from his position of “ Maintainer’s Helper (A) ” and the respondent commission’s affirmance of the dismissal, order of the Supreme Court, Kings County, dated March 23, 1967, which denied the motion of the Authority, in which the commission joined, to dismiss the proceeding, affirmed, without costs. The time within which appellants may answer the petition is extended until 10 days after service of the order to be entered hereon, with notice of entry. Although it is provided in subdivision 3 of section 76 of the Civil Service Law that a determination on appeal of an allegedly aggrieved employee shall not be subject to court review, there remains for court determination the question of a disposition by the commission which is “ purely arbitrary” (Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127, 136; Matter of Taylor V. New York City Tr. Auth., 25 A D 2d 682, affd. 19 N Y 2d 724). The petition on its face sufficiently alleges arbitrariness. Inasmuch as petitioner sought review herein of the determination of the commission within four months after it was rendered, the proceeding is timely within the purview of CPLR 217. Beldock, P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.