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Index Number: 10126512014 DONAS, HARRY
CITY OF NEW YORK SeqU~flCB Number: 002 QISMISS — - — ibo 4ilowtnq pspøta, nmytbomd I~W~r~a~U ~)1 this m~t~oii tM~w_________
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PE7IOION OOI~D
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
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PRESENT:
PAUL WOOTi~N J.s~i
JustIce
In the Matter of the Application of HARRY DONAS, Petitionoi~ For a Judgement Pursuant to the Provisions or. Article 78 of the New Yoric Civil Practice Law and Rules~ against. CITY OF NEW YORK, NEW YORK CITY OFFICE OF COLLECTIVE BARGAINING, and NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondentz
PART
INDEX NO.
OC1 222015
7
1O~265Ii4_
~3ENERAL CLEPJCS 01W!cE LNY~y
The foflowing papers, numbored I to., were road on this motion for --Notice of WlotionlOrder to Show Cause .~-. Affidavits — ExhIb~ ~ No(s). _______________ Answering Affidavits— Exhibits r ~FL1 E1) ~Na(s). Reptyin9 Affidavits — Exhibits nr~”r ,. ~ ~ni~ U No(s). ~ 4~J ~Uh~ Cross..Motlon: Yes Q ~ COUNTY CLERK’S OFFiCE NEWYORK Motion sequence numbers 001 and 002 are hereby consolidated for disposition.
Harry Donas (petitioner) commenced this proceeding, pursuant to Article 78 of the Civil Practice Law arid Rules, on or about October 30, 2014, agaInst the New York City Department of Environmental Protection (DEP), City of New York (collectively, city respondents), and the New York City Office of Collective Bargaining (OCB) seeking to challenge and reverse the Decision and Order of the OCB, dated June 24, 2014 (June Decision), which denied In part petitioner’s Improper practice petitions
(motion sequence 001). Specifically, petitioner is challenging the portion of the determination that the DEP did not violate sections 1~-3O6(a)(1) arid (3) of$he New York City Collective Bargaining Law (NYC
CBL) when it failed to appoint petitià’nert~ the CivIl Service title of Chemical Engineer, and when it conditioned petitioner’s grant of two days per week release time upon the relinquishment of his Page lof3
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compressed work schedule. Petitioner contends that the June Decision was arbitrary and capricious and should be overturned because the evidence presented was inadequate and Insufficient to support the decision. The city respondents cr~ss-rnove to dismiss t?~e petition on the grounds that this proceeding is ,1 time-barred due to petitioner’s failure to comply with the applicable statute of limitations, and that this
Court lacks personal jurisdiction over the city respondents due to petitioner’s failure to timely serve the petition within fifteen days of the expiration of the statute of limitations. Also before theCourt Is a motion by OCB to dismiss the petition on the grounds that it is time-barred as petitioner failed to file the herein petition within 30 days of service of a copy of the June Decision (motion sequence 002). Moreover4 OCB contends that separate and apart from the procedural grounds for dismissal, the petition should be dismissed on the merits because petitioner cannot establish that the Board of Collective Bargaining of the City of New York (Board) acted In an arbitrary and capricious manner in rendering its determination.’ DISCUSSION CPLR 217(a) provides th3t~[ujnlessa shorter time Is provided In the law authorizing the proceeding, a proceeding agaInst a&dy)~r officer m~ist be commenced within four months after the determination to be reviewed becc~mes final and binding upon the petitioner.~ NYC CBL § 12-308 provides in relevant part: a, Any order of the board of collective bargaining or the board of certification shall be (1) revlewable under article seventy-eight of the civil practice law and rules upon petition flied by an aggrieved party within thirty days after service by registered or certified mail of a copy of such order upon such party. A final arid binding determination was made by OCB regarding petitioner’s improper practice petitions on Juno 24, 2014, a copy of which was sent by certified mail to petitioner’s counsel of record
The Court notes that~ the Board was not named as a respondent in this proceeding, however, it is OCB’s contention that petitioner is seeking a judgment reversing in part a determlnaUon of the Board, which also rendered theJune DecisIon. Page 2 of 3
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P0171011 DENIED
on June 26, 2014. The signed certified mail receipt establishes that it was received by counsel on June 27, 2014. However, petitioner failed to commence the instant proceeding until on or about October 30, 2014, which is approximately three months alter the statute of limitations to chaflenge the June DecisIon had expired. Moreover, petitioner concedes that he received a copy of the June Decision via email from his counsel on July 241 2014, but does not explain the reason for the delay in commencing the herein action. Thus1 this proceeding is untimely and must be dismissed (Matter of Uniformed Firefighters Assn. of Greater N.Y. v New York City Off of Collective Bargaining, Bci. of Collective BargainIng, 163 AD2d 2.~1 ~1 st Dept 1990]). As such, the Court need not address the parties’ remaining contentions, CONCLUSION Accordingly it is hereby, ORDERED that the petition is denied and this proceeding brought by petitioner against the respondents is dismissed, without costs or disbursements to the respondents (motion sequence 001); and it is further, ORDERED that the cross-motion by the city respondents Is granted; and it is further, ORDERED that the motion to dismiss brought by OCB is granted (motion sequence 002); and it is further1 ORDERED couhsal for the city respondents shall 0 of this Order, with Notice of Entry, upon all pandas and upon the Cler the Court, who is directed to ant udgment accordingly. Dated: ioj ~ OCT 23 Z015 PAUL WOOTEN COUNTY CLER~QS OFFICE L~wYORK 1. Check une ~ CASE DISPOSED El NON~FlNAL DlSPOS~T10N 2. Check If appropriate:...., MOTION IS~ El GRANTED DENiED El GRANTED IN PART El om~ 3. Check If appraprlate:.......... El SETTLE ORDER El SUBMIT ORDER El DO NOT POST El FIDUCIARY APPOINTMENT El REFERENCE
Page 3 of 3
PiNE~4t 10001201 S
AFFIDAVIT OF SERVICE ON ATTORNEY BY MAIL
STATE OF NEW YORK, COUNTY OF NEW YORK, SS:
I, Erin Andrews-Chirila the undersigned, being duly sworn, deposes and say: on the 27th day of October 2015 she served the annexed Notice of Entry and Order upon: Special ilagan Law office of Special Hagan, Esq. Herein by depositing a copy of the same, enclosed in a prepaid properly addressed wrapper, in a post office/official depository, under the exclusive care and custody of the United states Postal Service, within the State of New York, directed by said attorney at, 196-04 Hollis Avenue, St. Albans, New York 11412 being the address designated by said attorney for that purpose.
Sworn to before me this 27th day, of October 2
ERIN ANDREWS-CHIRILA
RAMON 6 8ARREIRQ TARY PUBLIC STATE OF NEW YORK
BRONX COUNTY LIC. #01BA6047302 COMM. EXR 8/28/2Q~
PLEASE TAKE of which the within is a the office of the Clerk of the York County on the 23th
By
To:
NOTICE copy, was Supreme day of October 2015.
ZACHARY W. CARTER Corporation Counsel Attorneyfor Respondents iVew York, New York Dated: October 27, 2015
that an Order duly entered in Court, New
St~phe:i Pi~cUl Assistant t~rporaflufl Counsel
Special Hagan Law Office of Special Hagan, Esq. I 96-04 HoIlis Avenue St. Albans, New York 11412 (917) 337-24.~..~
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Index NO. 101265/2014 SUPREME
COURT OF COUNTY
In the Matter of Application HARRY
DONAS,
For an Order Civil Practice
THE STATE OF NEW
of
OF YORK
Petitioner,
and Judgment Pursuant to Law
and
Rules
-against
CITY OF NEW COLLECTIVE BARGAINiNG, and DEPARTMENT
Due and hereby
New
NEW
Article
YORK, NEW YORK CITY NEW OF ENVIRONMENTAL
Respondents.
NOTICE OF ENTRY & ZACHARY W. CARTER Corpomtion Counsel Stephen Pisehi, ACC Attorney for Respondents 100 Church Street, 2-142 New York, N.Y. 10007
timely admitted.
York;NY
Attorneyfor
(2 12) 356-2429 Matter No. 2014-044294 service of a copy of the
78
YO
of
t
OFFICE OF YORK CITY PROTECTION,
ORDER
within
Notice ,2015 Esq.
ofE