Opinion
533076
01-13-2022
In the Matter of Jeffrey BRIERE, Appellant, v. CITY OF SCHENECTADY, Respondent.
The Tuttle Law Firm, Clifton Park (James B. Tuttle of counsel), for appellant. Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for respondent.
The Tuttle Law Firm, Clifton Park (James B. Tuttle of counsel), for appellant.
Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Pritzker, J. Appeal from an order of the Supreme Court (Buchanan, J.), entered December 1, 2020 in Schenectady County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to strike petitioner's note of issue and demand for a jury trial.
In 2018, petitioner was provisionally appointed to the position of code enforcement officer. However, after failing the civil service exam for that position, petitioner was terminated. Thereafter, petitioner commenced this CPLR article 78 proceeding to, among other things, review the determination terminating his employment and restore him to his provisional position as a code enforcement officer or to his prior position as a housing inspector, together with back pay. Respondent answered petitioner's application and Supreme Court ordered a trial on several factual issues. Petitioner subsequently requested a jury trial while respondent requested a bench trial. Respondent opposed petitioner's request and petitioner filed a note of issue demanding a trial by jury. Respondent moved to strike this note of issue, which petitioner opposed. Supreme Court granted respondent's motion to strike the note of issue. Petitioner appeals.
Initially, no appeal as of right lies from this nonfinal order issued in a CPLR article 78 proceeding (see CPLR 5701[b][1] ; Matter of Robinson v. DiNapoli, 172 A.D.3d 1513, 1515 n., 100 N.Y.S.3d 392 [2019], lv dismissed and denied 34 N.Y.3d 1144, 119 N.Y.S.3d 426, 142 N.E.3d 109 [2020] ; Matter of Micklas v. Town of Halfmoon Planning Bd., 170 A.D.3d 1483, 1484–1485, 97 N.Y.S.3d 339 [2019] ). However, "in the interest of judicial economy, we treat the notice of appeal as a request for permission to appeal and grant the request" ( Matter of Aron Law PLLC v. Town of Fallsburg, 199 A.D.3d 1286, 1289, 158 N.Y.S.3d 349 [2021] ; see CPLR 5701[c] ), and then reach the merits of this fully briefed issue.
Here, because petitioner was a provisional employee when he was terminated and was not entitled to a hearing regarding his termination, "any attempt to challenge his discharge as a governmental employee is in the nature of mandamus to review" thus entitling him to a jury trial ( Matter of Preddice v. Callanan, 96 A.D.2d 613, 614, 464 N.Y.S.2d 598 [1983] ; see Matter of Green v. Commissioner of Envtl. Conservation of State of N.Y., 94 A.D.2d 872, 872–873, 463 N.Y.S.2d 574 [1983] ). However, petitioner has joined legal and equitable claims arising out of his termination, therefore waiving his right to a jury trial (see Margesson v. Bank of N.Y., 291 A.D.2d 694, 698, 738 N.Y.S.2d 411 [2002] ; see also Zutrau v. ICE Sys., Inc., 128 A.D.3d 1058, 1059, 10 N.Y.S.3d 539 [2015], lv denied 26 N.Y.3d 907, 2015 WL 5553533 [2015] ; Ayromlooi v. Staten Is. Univ. Hosp., 7 A.D.3d 475, 475–476, 776 N.Y.S.2d 305 [2004] ; Matter of Schapira v. Grunberg, 12 Misc.3d 1195[A], 2006 N.Y. Slip Op. 51585[U], *5, 2006 WL 2353194 [Sup. Ct., Bronx County 2006] ). Accordingly, we discern no error in Supreme Court granting respondent's motion to strike petitioner's note of issue.
Although both cases cited by petitioner, Matter of Green v. Commissioner of Envtl. Conservation of State of N.Y. (supra ) and Matter of Preddice v. Callanan (supra ), support petitioner's general right to a jury trial on the mandamus to review claim, neither decision carves out an exception as to waiver.
Egan Jr., J.P., Clark and Colangelo, JJ., concur.
ORDERED that the order is affirmed, without costs.