Opinion
135 Index No. 300073/19 Case No. 2022–04135
04-27-2023
Andrew Heath SEDGWICK, Plaintiff–Appellant, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Respondent.
Andrew Sedgwick, appellant pro se. Sylvia O. Hinds–Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondent.
Andrew Sedgwick, appellant pro se.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondent.
Webber, J.P., Moulton, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about July 15, 2022, which granted defendant's motion to dismiss plaintiff pro se's first amended complaint, unanimously affirmed, without costs.
We affirm, but for reasons different from those provided by the motion court. Plaintiff's claim, which he filed in June 2017, was untimely filed and dismissal was appropriate on that basis alone. Plaintiff styles his claim as a Labor Law § 198 claim concerning the underpayment of wages and seeking the primary relief of monetary damages, which would be subject to a six-year limitations period ( CPLR 213[6] ). However, the direct claim that plaintiff seeks to assert here is, in fact, a challenge to the administrative determination by defendant the New York City Department of Education (DOE) in April 2014 not to issue an enhanced starting salary retroactive to 2010, plaintiff's initial date of DOE employment, but rather, to make the enhanced salary retroactive only to April 1, 2014. Thus, plaintiff's claim should have been raised in an article 78 proceeding, which is subject to a four-month limitation period (see e.g. Hughey v. Metropolitan Transp. Auth., 159 A.D.3d 596, 597, 74 N.Y.S.3d 16 [1st Dept. 2018] ).