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Raymond v. Walsh

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 12, 2009
63 A.D.3d 1715 (N.Y. App. Div. 2009)

Summary

In Raymond, the Fourth Department found the express terms of the CBA at issue waived the union member's right to a hearing prior to the termination of GML § 207-c benefits.

Summary of this case from Zervos v. City of Binghamton

Opinion

No. 870 CA 08-00553.

June 12, 2009.

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered December 11, 2007 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

COTE, LIMPERT VAN DYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PETITIONER-APPELLANT.

COUGHLIN GERHART, LLP, BINGHAMTON (LARS P. MEAD OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

Present: Scud-der, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.


It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination terminating his General Municipal Law § 207-c benefits. According to petitioner, the collective bargaining agreement (CBA) between respondents and the union representing petitioner required that a hearing be conducted before those benefits were terminated. We reject that contention. Although the CBA provides that union members have the right to a hearing to contest a determination to terminate benefits pursuant to section 207-c, it does not afford a union member the right to a hearing prior to the termination of such benefits. Indeed, we conclude that petitioner, by entering into the CBA through his union, waived his right to a pretermination hearing ( see Antinore v State of New York, 49 AD2d 6, 10, affd 40 NY2d 921; Matter of Fortune v State of NY, Div. of State Police, 293 AD2d 154, 158; see generally Police Benevo-lent Assn. of NY State Troopers, Inc. v Division of NY State Police, 11 NY3d 96, 103). Because the petition was in the nature of mandamus to review rather than mandamus to compel the performance of a ministerial act required by law ( cf. Matter of Heck v Keane, 6 AD3d 95, 98-99), the four-month statute of limitations pursuant to CPLR 217 began to run on the date on which petitioner received notice of the termination of his General Municipal Law § 207-c benefits. The record establishes that petitioner was notified of the termination of his section 207-c benefits on December 2, 1999 and that he was notified of the termination of his hardship benefits on July 26, 2005. The petition was not filed until August 17, 2007 and thus, using either date, the proceeding is time-barred.


Summaries of

Raymond v. Walsh

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 12, 2009
63 A.D.3d 1715 (N.Y. App. Div. 2009)

In Raymond, the Fourth Department found the express terms of the CBA at issue waived the union member's right to a hearing prior to the termination of GML § 207-c benefits.

Summary of this case from Zervos v. City of Binghamton
Case details for

Raymond v. Walsh

Case Details

Full title:In the Matter of JOSEPH D. RAYMOND, SR., Appellant, v. KEVIN E. WALSH…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 12, 2009

Citations

63 A.D.3d 1715 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 4832
880 N.Y.S.2d 597

Citing Cases

Zervos v. City of Binghamton

The court finds that neither the CBA or Guidelines afforded petitioner the right to a hearing prior to the…

Zervos v. City of Binghamton

Additionally, the court finds that it misapprehended the application ofMatter of Raymond v Walsh, 63 AD3d…