lNEDON 121212010 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY J4NE S. SOLOMON PRESENT: Index Number : 402016/2010 SMITH, GWENDOLYN VS. NYC BOARD OF COLLECTIVE SEQUENCE NUMBER : 002 DISMISS -. - I1 lUotlce oTMotionl order to Show Caws - Affidavit8 - Exhibits ... Anrwerlng Affldsvltm - Exhibit8 hpiylng Aff idsvltm Cross-Motion: Yes h No Check one: @ FINAL DISPOSITION Check If approprlate: DO NOT POST n SUBMIT ORDER/ JUDG. .. PART g5 .kW.tiF- - INDEX NO. MOTION DATE /fl/> 7/10 MOTION 8EQ. NO. MOTION CAL. NO. - this motion tolfor I PAPERBNUMPrREO .-- ' 3 I I + n O,*NyFINAL DISPOSITION n REFERENCE 0 SETTLE ORDER/ JUDG. . . . . -. . . . .. . . . ,
GWENDOLYN SMITH , Index No, 402016/2010 Petitioner, -again8 t - NEW YORK CITY BOARD OF COLLECTIVE BARGAINING, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, and DISTRICT COUNCIL 37, LOCAL 983, Respondents. SOLOMON, Jm t Pro se petitioner, Gwendolyn Smith (Smith) challenges the determination of reegondent New Ymk City Board Of Collective Bargaining (Board) denying her reinstatement to her prior employment status with the Ci t y of New York as a City Seasonal Aide (CSA) wi t h respondent New York City Department of Parks and Recreation (DPR). DPR, Board and District Council 37, Local 983 (DC 37) independently move to dismiss the petition. DPR moves on the ground that Smith failed to serve it with process. The Board and DC 37 move on the procedural ground that the petition is time barred, and the substantive ground that the deciaion was not arbitrary or capricious. CSA employees are represented by DC 37. Smith was employed as a CSA by DPR from 2000 through July 2009. She patrolled a portion of Far Rockaway Beach to ensure that the beaches were not used after designated swimming hours.' On July 1, 2009, Smith was terminated for leaving her post. She appealed
Y ' k her termination, and was granted a "Step 31" hearing to review the circumstances of her termination, as allowed under the relevant collective bargaining agreement (Agreement). Notably, the Agreement does not allow CSAs to arbitrate employment disputes. A hearing was granted, and on July 16, 2009, the hearing officer ugheld Smith's termination. On October 16, 2009, Smith filed an improper practice petition against DC 37 and DCR. Tho Board heard the petition, and on April 6, 2010, upheld the termination, stating "the Union exercised every right Petitioner had under the Agreement," "her allegations of better treatment for 'similarly situated' employees are entirely conclusosy," and determined that the respondents' actions did not constitute an improper practice (Hearing Decision, attached to Petition, Ex. A, p. 9-10]. Smith filed this petition on July 29, 2010. Though article 78 challenges generally must be brought within four months, that limitations period may be shortened by law under CFLR 217 (Matter of Red Hook/Gowanus Chamber of Commerce v. NY Ci t y Board of Standards and Appeals, 5 NY3d 452, 460 [2005]). Section 12-308(a) of the New York City Collective Bargaining Law (NYCCBL) does this. It provides that "[alny order of the Board of Collective Bargaining . . shall be (1) reviewable under article seventy-eight of the civil practice law and rules upon petition filed by an aggrieved party wi t hi n thirty Bays after service by registered or certified mail of a copy of such order upon such party." The underlying decision, issued on 2
April 6, 2010, was received by Smith prior to April 23, 2010.’ Smith filed this petition over three months later. Accordingly, it is time barred. In light of this, DPR’s motion to dismiss for insufficient service of process is moot. Even were the petition timely, it is insufficient to overturn ,the Board’s determination. Smith argues only that *employer offered me my job back, however, based on Boards decision I: was not rehired . - . Court ehauld reverse decision because contract is double standard” (Petition, g. 1). Her claim that she was not given “the groper hearings” is belied by the documents she relies ugon and her claims that her employers failed to properly investigate her incident were raised and rejected in the underlying decision. In accordance.with the foregoing, it hereby is ORDERED that the motions to dismiss the petition are granted, a 7 d the petition is dismissed. I Enter FILED DEC 02 2010 JANE S, SOlOMON NEW YOHK AQIJNTY CLERKS OFFICE --.’-* ’ ‘ ‘ - I Respondents Bo not supply evidence of service of the Board’s decision, however, they provide a letter from Smith to the Office of Collective Bargaining, dated Agril.23, 2010, relating in part that she received the decision (Letter, attached to Wirenius Affirmation, Ex. A). 3
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