IN RE GIOIA v. N.Y. CITY DEPT., ENV. PROT

Full title: In re Application of ANTHONY GIOIA, Petitioner-Appellant, For a Judgment…

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

Date published: Dec 21, 1999

267 A.D.2d 145 (N.Y. App. Div. 1999)

700 N.Y.S.2d 183

Opinion

December 21, 1999

Judgment, Supreme Court, New York County (Barbara Kapnick, J.), entered June 19, 1998, which dismissed as time-barred the petition pursuant to CPLR article 78 seeking petitioner's reinstatement to his former position with respondent, unanimously affirmed, without costs.

Thomas F. Bello for Petitioner-Appellant.

Ellen B. Fishman for Respondent-Respondent.

NARDELLI, J.P., WILLIAMS, MAZZARELLI, WALLACH, LERNER, JJ.

The IAS court correctly determined that this proceeding seeking petitioner's reinstatement to his former probationary position as construction laborer with respondent was time-barred, since petitioner failed to commence the proceeding within four months of his termination (Matter of De Milio v. Borghard, 55 N.Y.2d 216). In any case, petitioner, as a probationary employee, was terminable without a hearing at the discretion of respondent absent a showing that he was dismissed in violation of statutory or decisional law, or for unconstitutional reasons (Matter of York v. McGuire, 63 N.Y.2d 760, 761), and no such showing has been made here.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.