Summary
In DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989), the Appellate Division affirmed the Supreme Court decision to annul and vacate a determination terminating petitioner's employment.
Summary of this case from In Matter of DiPillo v. JacknisOpinion
June 5, 1989
Appeal from the Supreme Court, Kings County (Duberstein, J.).
Ordered that on the court's own motion the appellant's notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Sullivan, and leave to appeal is granted by Justice Sullivan (CPLR 5701 [b]); and it is further,
Ordered that the order is affirmed, with costs.
Contrary to the appellant's contentions, the instant proceeding was timely commenced within four months (CPLR 217) of the determination dated July 10, 1986. The denial of a request to reconsider a determination barred by the four-month Statute of Limitations will not revive the statutory period within which to commence a proceeding to review the original determination (see, Matter of De Milio v. Borghard, 55 N.Y.2d 216; Matter of Calvert v Westchester County Personnel Off., 128 A.D.2d 523). However, where, as here, the governmental agency agrees to hold a new hearing at which new testimony is taken, new evidence is proffered and new matters are considered, a party aggrieved by the new determination may seek review in a proceeding pursuant to CPLR article 78 commenced within four months of the new determination (see, Civil Service Law § 76; Matter of Camperlengo v. State Liq. Auth., 16 A.D.2d 342; Matter of Feller v Wagner, 7 A.D.2d 126; Matter of Francisco v. O'Connell, 33 Misc.2d 555; Matter of Buffalo Audio Center Arrolite Co. v. Union Free School Dist. No. 1, 29 Misc.2d 871, affd 15 A.D.2d 991). Thus, the appellant's Statute of Limitations defense is without merit.
The Supreme Court correctly annulled the determination dated July 10, 1986, and vacated the determination dated July 10, 1985. The determination dated July 10, 1985, terminated the petitioner's employment after a hearing conducted in absentia. All notices of the hearing were sent to an address from which the petitioner had moved. All were unopened and returned by the United States Postal Service to the New York City Transit Authority marked "moved-left no address". It is uncontroverted that the petitioner was never apprised of the hearing. He was aware that the appellant could not notify him at the address it had on record. However, the appellant undertook no other steps to notify the petitioner of the pending charges (Civil Service Law § 75). Clearly, mailing the notice to the petitioner's last known address was not "notice reasonably calculated, under all the circumstances, to apprise [the petitioner] of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections" (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314). Rather, the appellant regarded the failure of the petitioner to receive notice of the hearing and charges as "his problem". Clearly, it conducted itself in an arbitrary and capricious manner. Rubin, J.P., Sullivan, Harwood and Balletta, JJ., concur.