Summary
refusing to consider arguments "improperly raised for the first time in reply brief
Summary of this case from Gedula 26, LLC v. Lightstone Acquisitions III LLCOpinion
15466, 100170/13
06-18-2015
In re Richard ERDEY, Petitioner–Appellant, v. The CITY OF NEW YORK, et al., Respondents–Respondents.
The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.
The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.
GONZALEZ, P.J., TOM, FRIEDMAN, KAPNICK, JJ.
Opinion Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 24, 2014, denying the petition, except for the second cause of action, on which relief was previously granted, inter alia, to compel respondents to expunge all materials placed in petitioner's personnel file related to a finding that he violated respondent Fire Department's (FDNY) Equal Employment Opportunity (EEO) policy or, in the alternative, to compel respondents to grant petitioner a full and fair opportunity to challenge the allegations that he violated the policy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner waived any rights to the relief he seeks, the expungement of the subject materials from his personnel file or an opportunity to be heard on the allegations, in a September 27, 2011 agreement with FDNY settling disciplinary charges against him (see Matter of Miller v. Coughlin, 59 N.Y.2d 490, 465 N.Y.S.2d 913, 452 N.E.2d 1241 [1983] ; Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450, 455, 414 N.Y.S.2d 109, 386 N.E.2d 1077 [1979], cert. denied 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58 [1979] ). His reliance on Matter of D'Angelo v. Scoppetta, 19 N.Y.3d 663, 954 N.Y.S.2d 772, 978 N.E.2d 1241 (2012) is misplaced, since there was no waiver in that case. Petitioner's arguments that the waiver provisions of the settlement agreement are inapplicable to the instant case were improperly raised for the first time in his reply brief.
Petitioner's contention that the court should have awarded him attorneys' fees is not properly before us since it was raised for the first time in his reply brief.
We have considered petitioner's remaining contentions and find them unavailing.