Kliegerman & Joseph, LLP, New York, NY (Ronald E.
Kliegerman and Michael P. Joseph of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Susan
Greenberg and Emma Grunberg of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Commissioner of the New York City
Department of Correction dated February 7, 2014, which
summarily terminated the petitioner's employment as a
correction officer pursuant to Public Officers Law §
30(1)(e) on the basis of his misdemeanor conviction of
falsifying business records in the second degree, the
petitioner appeals from an order and judgment (one paper) of
the Supreme Court, Queens County (Weiss, J.), entered June 9,
2015, which granted the respondents' motion pursuant to
CPLR 3211(a) and 7804(f) to dismiss the petition, and
dismissed the proceeding.
that the order and judgment is affirmed, with costs.
March 2009, the petitioner, a correction officer employed by
the respondent New York City Department of Correction
(hereinafter the DOC), was served with disciplinary charges
alleging that in January 2009, he left his assigned post
without permission or authority and entered a different area
of the prison, where he carried on "an undue
relationship" with an inmate. Additionally, the
petitioner was charged with making "false entries in
the... enhanced security post logbook." In October 2009,
the petitioner was indicted on several charges, including
falsifying business records in the second degree and
attempted assault in the third degree. In 2013, the
petitioner was convicted of falsifying business records in
the second degree (Penal Law § 175.05).
February 2014, the DOC mailed a letter to the
petitioner's last known address on file with the DOC
advising him that his employment was terminated pursuant to
Public Officers Law § 30(1)(e). In August 2014, the
petitioner commenced this CPLR article 78 proceeding against
the DOC and the Commissioner of the DOC (hereinafter together
the respondents), alleging, among other things, that the
termination of his employment was arbitrary and capricious.
The respondents moved pursuant to CPLR 3211(a) and 7804(f) to
dismiss the petition on the grounds that the petition failed
to state a cause of action and that the proceeding was
time-barred. In an order and judgment entered June 9, 2015,
the Supreme Court granted the motion on the ground that the
proceeding was time-barred, and dismissed the proceeding. We
affirm, albeit on a different ground than that relied upon by
the Supreme Court.
to the Supreme Court's determination, the four-month
statute of limitations did not begin to run when the
petitioner was personally served with a copy of the
respondents' letter notifying him that his employment had
been terminated. At that time, the respondents were on notice
that the petitioner had retained counsel to represent him in
connection with the disciplinary charges. " [B]asic
procedural dictates and... fundamental policy
considerations... require that once counsel has appeared in a
matter a Statute of Limitations or time requirement cannot
begin to run unless that counsel is served with the
determination or the order or judgment sought to be
reviewed'" (Matter of Odunbaku v Odunbaku,
28 N.Y.3d 223, 227-228, quoting Matter of Bianca v
Frank, 43 N.Y.2d 168, 173). Under the circumstances of
this case, the respondents were required to serve a copy of
the letter on the petitioner's counsel in order for the
statute of limitations to commence running (see Matter of
Bianca v Frank, 43 N.Y.2d at 173; Matter of
Sutherland v New York State Dept. of Envtl.
Conservation, 122 A.D.3d 759, 761; Thompson v
Poughkeepsie School Dist., 133 A.D.2d 752, 753-754).
Accordingly, the court erred in dismissing the proceeding on
the ground that it was time-barred.
the respondents' motion also sought dismissal on the
ground that the petition failed to state a cause of action,
and that issue was argued before the Supreme Court and has
been briefed by the parties on appeal, we address it in the
interest of judicial economy (see Barone v Barone,
130 A.D.3d 765, 767). "On a motion pursuant to CPLR
3211(a)(7) and 7804(f), only the petition is considered, all
of its allegations are deemed true, and the petitioner is
accorded the benefit of every possible inference"
(Matter of Brown v Foster, 73 A.D.3d 917, 918;
see Matter of Johnson v County of Orange, 138 A.D.3d
850, 850-851). "In determining such a motion, the sole
criterion is whether the petition sets forth allegations
sufficient to make out a claim that the determination sought
to be reviewed was made in violation of lawful procedure, was
affected by an error of law or was arbitrary and capricious
or an abuse of discretion'" (Matter of Kunik v
New York City Dept. of Educ., 142 A.D.3d 616, 617,
quoting CPLR 7803).
to Public Officers Law § 30(1)(e), an office is deemed
vacant upon an officer's "conviction of a felony, or
a crime involving a violation of his [or her] oath of
office" (Public Officers Law § 30[e]; see
Matter of Feola v Carroll, 10 N.Y.3d 569, 572;
Matter of Duffy v Ward, 81 N.Y.2d 127, 131).
"Summary dismissal is... justified in circumstances
where [a] misdemeanor for which the officer is convicted
demonstrat[es] a lack of moral integrity, ' namely, one
that involves a willful deceit or a calculated disregard for
honest dealings'" (Matter of Feola v
Carroll, 10 N.Y.3d at 573, quoting Matter of Duffy v
Ward, 81 N.Y.2d at 135). Here, the petitioner's
conviction of falsifying business records in the second
degree (Penal Law § 175.05), a class A misdemeanor,
was an offense involving willful deceit, and resulted in
automatic vacatur of his position pursuant to Public Officers
Law § 30(1)(e) (see Matter of Depamphilis v
Kelly, 107 A.D.3d 611, 611; Matter of Holt v
Marinelli, 45 A.D.3d 1317, 1318; see also Matter of
Feola v Carroll, 10 N.Y.3d at 573). Under the
circumstances of this case, the petition failed to set forth
allegations sufficient to make out a claim that the
termination of the petitioner's employment was "made
in violation of lawful procedure, was affected by an error of
law or was arbitrary and capricious or an abuse of
discretion" (CPLR 7803).
petitioner's remaining contentions either are without
merit or need not be ...