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Raymond H. Card, Respondent, the v. City of New York

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 12, 2011

RAYMOND H. CARD, RESPONDENT, THE
v.
CITY OF NEW YORK,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered March 18, 2009. The order, insofar as appealed from, denied defendant's motion to dismiss the complaint to the extent that the complaint asserted a breach of contract cause of action.

Card v City of New York

Decided on May 12, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

Plaintiff, a former New York City corrections officer, commenced this action to recover compensation for 75 days, which he maintains should have been classified as sick leave, rather than as suspensions without pay for sick-leave violations. Defendant moved to dismiss the complaint for lack of subject matter jurisdiction (CPLR 3211 [a] [2]) and as time-barred (CPLR 3211 [a] [5]). Plaintiff opposed the motion.

By order entered March 18, 2009, the Civil Court granted defendant's motion to dismiss the complaint for lack of subject matter jurisdiction to the extent that it asserted a claim which should have been brought as a CPLR article 78 proceeding. The order dismissed the complaint to the extent that the claim "c[ould] be construed as a demand for relief based on the assertion that the DOC's [Department of Correction's] decision not to credit [plaintiff] for the sick days constituted a violation of law or was arbitrary and capricious" and denied the motion to the extent that the complaint alleged a breach of contract action. This appeal by defendant ensued.

While plaintiff argues that defendant had a contractual obligation to pay him for sick leave, his primary argument is that the decisions by the DOC to suspend him without pay were "capricious" and undertaken for impermissible purposes. As the substance of plaintiff's claim does not seek to vindicate a contractual right but instead challenges the propriety of certain administrative decisions, the proper form for this action was a CPLR article 78 proceeding and the proper forum, the Supreme Court (see CPLR 7801, 7803 [3]; 7804 [b]; Abiele Contr. v New York City School Contr. Auth., 91 NY2d 1, 7-8 [1997]; Advanced Refractory Tech. v Power Auth. of State of NY, 81 NY2d 670, 678-679 [1993]; see also Matter of Seckler v County of Nassau, 7 AD3d 720 [2004]; Anderson v Dutchess County, 12 Misc 3d 94 [App Term, 9th & 10th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint for lack of subject matter jurisdiction is granted.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: May 12, 2011

20110512

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