Taylor v. New York City Transit Authority

25 A.D.2d 682, 269 N.Y.S.2d 75, 1966 N.Y. App. Div. LEXIS 4675

Opinion

In a proceeding pursuant to article 78 of the CPLR to review and annul a determination of respondent New York City Transit Authority dismissing petitioner from its employ, petitioner appeals, as limited by his briefs, from so much of a judgment of the Supreme Court, Kings County, entered January 13, 1965, as dismissed his petition and confirmed the determination. Judgment affirmed, insofar as appealed from, without costs. We agree with the holding at Special Term that petitioner, by appealing from his dismissal to the respondent Civil Service Commission, elected his remedy and was foreclosed from seeking judicial review, since his dismissal was not “ purely arbitrary.” Thus, although we disapprove of the participation of the former counsel to the Transit Authority in the Authority’s determination in his role as a Commissioner, we can not disturb the decision of the Civil Service Commission. We additionally find that petitioner knew, or should have known, at the time of his appeal to the Civil Service Commission, that Commissioner Scannell had taken part as a member of the Authority in the adoption of the recommendations of the hearing referee. Therefore, in addition to the reason stated by Special Term, we affirm on the grounds of the expiration of the four-month Statute of Limitations (CPLR 217) and laches. (Austin v. Board of Higher Educ. of City of N. Y., 5 N Y 2d 430.)

Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.