Opinion
November 20, 1967
In a proceeding pursuant to CPLR article 78 to review "the determination of the respondent and the City Civil Service Commission removing Petitioner from his position as Railroad Porter" and for related relief, petitioner appeals from a judgment of the Supreme Court, Kings County, dated November 3, 1966, which dismissed the petition for insufficiency as a matter of law. Judgment affirmed, without costs. In May, 1963, petitioner was convicted of a violation of the Universal Military Training and Service Act (62 Stat. 622; U.S. Code, tit. 50, App., § 462, subd. [a]), on his plea of guilty, and was sentenced to a prison term of two years. The violation was that petitioner, who had been classified as a conscientious objector, refused an order to perform certain civilian work on the ground that he was a minister of Jehovah's Witnesses and that his religion forbade him to do such work. While incarcerated he was dismissed from his position by the Authority. However, after his release he was given a hearing, following which the dismissal was ratified by the Authority on April 14, 1965, effective as of the date of the original dismissal, February 26, 1964. It is stated in the report of respondent's Hearing Referee, which was approved by respondent, that petitioner "was not dismissed from the service because of refusal to serve his country "but" because, as a result of an act of his own volition, the Transit Authority was deprived of his services during the extended period of his imprisonment." Petitioner appealed from the 1965 order of discharge to the Civil Service Commission of the City of New York, as permitted by section 76 Civ. Serv. of the Civil Service Law, and on April 26, 1966 the commission affirmed the dismissal. This proceeding, against the Transit Authority only, was commenced on July 22, 1966. The petition was dismissed on respondent's motion, the court at Special Term holding that (1) the proceeding was barred under CPLR 217 because more than four months had elapsed from the date respondent's determination became effective to the date of the commencement of the proceeding; (2) the proceeding was also barred under section 76 Civ. Serv. of the Civil Service Law because petitioner had elected to appeal from respondent's determination to the Civil Service Commission; and (3) the commission was not a party to the proceeding and therefore its determination could not be reviewed. We agree with the holding that petitioner, by appealing to the Civil Service Commission, elected his remedy and was foreclosed from seeking judicial review, since his dismissal was not "purely arbitrary" ( Matter of Taylor v. New York City Tr. Auth., 25 A.D.2d 682, affd. 19 N.Y.2d 724). We pass upon no other question. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.