Opinion
06-17-2016
In the Matter of Kenneth M. BUTKOWSKI, Petitioner–Appellant, v. Brendan J. KIEFER, as Chief of Village of Kenmore Fire Department, and Village of Kenmore, Respondents–Respondents.
Law Offices of W. James Schwan, Buffalo (W. James Schwan of Counsel), for Petitioner–Appellant. Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Respondents–Respondents.
Law Offices of W. James Schwan, Buffalo (W. James Schwan of Counsel), for Petitioner–Appellant.
Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Respondents–Respondents.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM: On March 5, 2014, petitioner commenced this proceeding seeking an order directing respondents to reinstate him to his part-time firefighter position with the Village of Kenmore Fire Department, together with back pay and benefits. By letter dated November 13, 2013, respondent Village of Kenmore advised petitioner that his employment was terminated, effective that day, because his certification as a first responder or as an emergency medical technician had expired. Pursuant to CPLR 7804(f), respondents moved to dismiss the amended petition on various grounds, and Supreme Court granted the motion on the ground that the proceeding was time-barred. That was error.
We agree with petitioner that this proceeding was in the nature of mandamus to compel inasmuch as he was entitled to a hearing pursuant to Civil Service Law § 75(1)(c), but no such hearing was held (see generally Matter of De Milio v. Borghard, 55 N.Y.2d 216, 219, 448 N.Y.S.2d 441, 433 N.E.2d 506 ). Respondents contend that no hearing was required because petitioner lacked a qualification for his employment, which is “separate and distinct from an act of misconduct by a municipal employee in the performance of his or her work” (Matter of Felix v. New York City Dept. of Citywide Admin. Servs., 3 N.Y.3d 498, 505, 788 N.Y.S.2d 631, 821 N.E.2d 935 ; see Matter of New York State Off. of Children & Family Servs. v. Lanterman, 14 N.Y.3d 275, 282–283, 899 N.Y.S.2d 726, 926 N.E.2d 233 ). In Felix and other cases relied upon by respondents, however, there was a local law, ordinance, or regulation setting forth the employment requirement (see Felix, 3 N.Y.3d at 501–502, 788 N.Y.S.2d 631, 821 N.E.2d 935 [local law]; Matter of Stolzman v. New York State Dept. of Transp., 68 A.D.3d 1331, 1332, 890 N.Y.S.2d 181 [civil service classification standard], lv. denied 14 N.Y.3d 708, 2010 WL 1709187 ; Mandelkern v. City of Buffalo, 64 A.D.2d 279, 280, 409 N.Y.S.2d 881 [ordinance] ). Similarly, in Lanterman, the collective bargaining agreement set forth the credentials required of the employee (id. at 282–283, 899 N.Y.S.2d 726, 926 N.E.2d 233 ). Here, respondents did not rely on any rule, ordinance, or regulation, but rather relied on a collective bargaining agreement that applied only to full-time firefighters, not to part-time firefighters such as petitioner. “[B]oth due process and fundamental fairness require that a qualification or requirement of employment be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee” (Matter of Lutz v. Krokoff, 102 A.D.3d 146, 149–150, 954 N.Y.S.2d 658, lv. denied 20 N.Y.3d 860, 2013 WL 538052 ).
In a proceeding in the nature of mandamus to compel, the statute of limitations runs from the date the petitioner's demand for reinstatement is refused (see De Milio, 55 N.Y.2d at 220, 448 N.Y.S.2d 441, 433 N.E.2d 506 ). Petitioner's commencement of this CPLR article 78 proceeding constitutes such a demand (see Matter of Speis v. Penfield Cent. Schs., 114 A.D.3d 1181, 1182–1183, 980 N.Y.S.2d 642 ; Matter of Thomas v. Stone, 284 A.D.2d 627, 628, 725 N.Y.S.2d 749, lv. dismissed 96 N.Y.2d 935, 733 N.Y.S.2d 370, 759 N.E.2d 369, lv. denied 97 N.Y.2d 608, 739 N.Y.S.2d 98, 765 N.E.2d 301, cert. denied 536 U.S. 960, 122 S.Ct. 2664, 153 L.Ed.2d 839 ), and therefore this proceeding is not barred by the statute of limitations. We reject respondents' alternative ground for affirmance (see Matter of Harnischfeger v. Moore, 56 A.D.3d 1131, 1131–1132, 867 N.Y.S.2d 314 ; see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ), i.e., that service of the petition and notice of petition was untimely pursuant to CPLR 306–b. We construe respondents' motion to dismiss as a refusal of petitioner's demand for reinstatement (see generally Thomas, 284 A.D.2d at 628, 725 N.Y.S.2d 749 ), which began the running of the statute of limitations. Thus, at the time respondents made their motion, petitioner still had time to serve his pleadings within the time limits of CPLR 306–b. We reject respondents' further alternative ground for affirmance that this proceeding is barred by the doctrine of laches. A petitioner may not unreasonably delay in making a demand or the proceeding will be barred by laches (see Speis, 114 A.D.3d at 1182, 980 N.Y.S.2d 642 ; Matter of Densmore v. Altmar–Parish–Williamstown Cent. Sch. Dist., 265 A.D.2d 838, 839, 695 N.Y.S.2d 828 ). Inasmuch as petitioner commenced this proceeding less than four months after he was terminated and the right to make the demand for reinstatement arose, we conclude that respondents' contention is without merit (cf. Thomas, 284 A.D.2d at 628, 725 N.Y.S.2d 749 ; Densmore, 265 A.D.2d at 839, 695 N.Y.S.2d 828 ).
Finally, respondents contend as another alternative ground for affirmance that the amended petition should be dismissed because the determination to terminate petitioner was not arbitrary and capricious or contrary to law. We reject that contention, and we conclude that the termination of petitioner without a hearing is arbitrary and capricious (see Lutz, 102 A.D.3d at 150, 954 N.Y.S.2d 658 ). Ordinarily, when a motion to dismiss is denied, “the court shall permit the respondent to answer, upon such terms as may be just” (CPLR 7804[f] ). Where, however, the “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer,” a remittal to allow the respondent to file an answer is not necessary (Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 102, 480 N.Y.S.2d 190, 469 N.E.2d 511 ; see Matter of Kickertz v. New York Univ., 25 N.Y.3d 942, 944, 6 N.Y.S.3d 546, 29 N.E.3d 893 ). Upon examining the submissions of the parties, we conclude that there exists no issue “ ‘which might be raised by answer concerning the merits of the petitioner's application’ ” (Matter of Julicher v. Town of Tonawanda, 34 A.D.3d 1217, 1217, 824 N.Y.S.2d 522 ; see Matter of Kuzma v. City of Buffalo, 45 A.D.3d 1308, 1310–1311, 845 N.Y.S.2d 880 ; cf. Matter of Timmons v. Green, 57 A.D.3d 1393, 1394–1395, 871 N.Y.S.2d 562 ). Indeed, counsel for respondents indicated during oral argument of this appeal that it would be appropriate for this Court to render a decision on the merits if we disagreed with their contentions raised on the appeal, and counsel did not request an opportunity to submit an answer. We therefore reverse the judgment and grant the amended petition seeking reinstatement, as well as back pay and benefits, to the date of the commencement of this proceeding (see Matter of Diggins v. Honeoye Falls–Lima Cent. Sch. Dist., 50 A.D.3d 1473, 1474, 856 N.Y.S.2d 396 ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, the amended petition is reinstated, and the amended petition is granted.