Opinion
12751 Index No. 400163/11 Case No. 2018-21713
01-05-2021
In the Matter of Theresa D. GONZALES, Petitioner-Appellant, v. N.Y.C. DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES et al., Respondents-Respondents.
Theresa D. Gonzales, appellant pro se. James E. Johnson, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondents.
Theresa D. Gonzales, appellant pro se.
James E. Johnson, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondents.
Renwick, J.P., Gische, Kern, Oing, Mendez, JJ.
Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about January 9, 2018, in this proceeding brought pursuant to CPLR article 78, to the extent it denied petitioner's motions to set aside the verdict, unanimously affirmed, without costs, and to the extent, upon respondents' motions, it imposed sanctions on petitioner's counsel, appeal therefrom unanimously dismissed, without costs.
The court properly denied petitioner's first motion to set aside the verdict, as the jury's finding in favor of respondents could have been reached on a fair interpretation of the evidence (see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ; KBL, LLP v. Community Counseling & Mediation Servs., 123 A.D.3d 488, 489, 999 N.Y.S.2d 18 [1st Dept. 2014] ). There was ample evidence from which the jury could reasonably conclude that petitioner had not been appointed for, and served, a probationary period, as provided in the Civil Service Law (see Education Law § 2573[4] ). At least two witnesses testified that petitioner was not appointed to any position that would have involved a probationary period, and documentary evidence established that even after petitioner claimed that she had completed her probationary period, she was still listed as a provisional employee.
The court properly denied petitioner's second motion to set aside the verdict, because successive motions are not permitted under CPLR 4406 (see Spathis v. Dulimof–Spathis, 103 A.D.3d 599, 602, 960 N.Y.S.2d 384 [1st Dept. 2013], lv dismissed in part, denied in part 22 N.Y.3d 913, 975 N.Y.S.2d 733, 998 N.E.2d 397 [2013], cert denied 574 U.S. 856, 135 S.Ct. 140, 190 L.Ed.2d 105 [2014] ). Were we to consider her argument, we would find that the jury reasonably concluded that petitioner was not a permanent noncompetitive class employee when the transfer of functions occurred in 1998 (see Civil Service Law § 70[2] ). Two witnesses testified that the positions to which petitioner had been assigned were competitive and that a code entry in the payroll management system indicating that petitioner had been assigned to a noncompetitive position was the result of a clerical error. Petitioner failed to raise Civil Service Law § 50(4) or request that the jury be charged concerning the application of that statute before the jury rendered its verdict. Accordingly, petitioner's argument that she was entitled to a directed verdict, or that the verdict should have been set aside, based on Civil Service Law § 50(4) is unpreserved (see CPLR 4110–b ; Peguero v. 601 Realty Corp., 58 A.D.3d 556, 559, 873 N.Y.S.2d 17 [1st Dept. 2009] ; see also Schaefer v. New York City Tr. Auth., 96 A.D.3d 485, 485–86, 946 N.Y.S.2d 154 [1st Dept. 2012] ).
The appeal from the part of the order that imposed sanctions on nonparty petitioner's counsel is dismissed, as petitioner is not aggrieved by that part of the order ( Scopelliti v. Town of New Castle, 92 N.Y.2d 944, 681 N.Y.S.2d 472, 704 N.E.2d 226 [1998] ; see Tartaglione v. Tiffany, 275 A.D.2d 319, 712 N.Y.S.2d 403 [2d Dept. 2000] ).
We have considered petitioner's remaining arguments and find them unavailing.