Opinion
2014-03-18
In re Orlando CENTENO, Petitioner–Appellant, v. The CITY OF NEW YORK, et al., Respondents–Respondents.
Rosenthal Law Firm, Spring Valley (Douglas Rosenthal of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Pamela Seider Dolgow of counsel), for respondents.
Rosenthal Law Firm, Spring Valley (Douglas Rosenthal of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Pamela Seider Dolgow of counsel), for respondents.
Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered on or about October 18, 2012, granting respondents' cross motion to deny the petition seeking to annul a decision of New York City Civil Service Commission (CSC), dated November 30, 2011, which affirmed a determination by the New York City Department of Sanitation terminating petitioner's employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner concededly failed to timely serve CSC, which was a necessary party because it was the agency that made the decision challenged by the petition ( see Johnson v. Scholastic Inc., 52 A.D.3d 375, 860 N.Y.S.2d 83 [1st Dept.2008] ). This failure to serve a necessary party required the dismissal of the proceeding ( see Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 A.D.3d 318, 814 N.Y.S.2d 151 [1st Dept.2006],lv. denied 7 N.Y.3d 710, 822 N.Y.S.2d 758, 855 N.E.2d 1173 [2006] ). The court properly declined to grant an extension of time, notwithstanding the apparent absence of prejudice, due to the petition's lack of merit ( see Pecker Iron Works, Inc. v. Namasco Corp., 37 A.D.3d 367, 830 N.Y.S.2d 548 [1st Dept.2007] ). Were we to reach the merits, under the extremely narrow scope of review applicable, as petitioner administratively appealed to CSC, we would find that petitioner fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction ( see Matter of New York City Dept. of Envtl. Protection v. New York City Civ. Serv. Commn., 78 N.Y.2d 318, 323–324, 574 N.Y.S.2d 664, 579 N.E.2d 1385 [1991];see also Civil Service Law § 76[3] ). MAZZARELLI, J.P., SWEENY, ANDRIAS, DeGRASSE, RICHTER, JJ., concur.