Opinion
No. 100697/14.
11-07-2014
In the Matter of the Application of Winsley WATTS, Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY and Thomas F. Pendergrast, as President of the New York City Transit Authority, Respondents.
Lichten & Bright, P.C. by Stuart Lichten, Esq., New York, for petitioner. Lewis S. Finkelman, Esq., Vice President & General Counsel NYCTA by Mariel A. Thompson, Esq., Brooklyn, for respondents.
Lichten & Bright, P.C. by Stuart Lichten, Esq., New York, for petitioner.
Lewis S. Finkelman, Esq., Vice President & General Counsel NYCTA by Mariel A. Thompson, Esq., Brooklyn, for respondents.
Opinion
MICHAEL D. STALLMAN, J.
Petitioner brings this Article 78 proceeding to challenge a determination of respondent New York City Transit Authority (N.Y.CTA) to deny petitioner back pay after the NYCTA terminated petitioner's employment pursuant to Civil Service Law § 73, and after the NYCTA reinstated petitioner to employment. Petitioner seeks an order:
declaring that respondents' discharge of petitioner was arbitrary, capricious, and violated petitioner's rights secured by Civil Service Law § 73 ; and directing respondents to provide back pay and all other benefits to petitioner for the period between his discharge and his reinstatement, and in all other ways to make petitioner whole.
BACKGROUND
The NYCTA permanently appointed petitioner Winsley Watts to the competitive civil service title of conductor on January 10, 1994. (See Answer Ex. B.) On April 18, 2012, petitioner took unpaid medical leave as a result of injuries from a motor vehicle accident unrelated to his employment on April 16, 2012. (See Answer Ex. C.) By letter dated June 20, 2012, the NYCTA advised petitioner that pursuant to Civil Service Law § 73, the NYCTA would seek termination of his employment after one year, or on the date his disability was deemed permanent (whichever occurred first), and to contact the NYCTA Employee Availability Unit should his medical condition change. (See id. )
By letter dated February 28, 2013, the NYCTA notified petitioner that his absence from work due to the non-employment related injury was approaching one year and pursuant to Civil Service Law, he would be terminated effective April 18, 2013, unless he returned to work by that date. (See Answer Ex. D.)
Respondents allege that petitioner did not respond to the February 28, 2013 letter or request to return to work. (See Answer ¶ 22.) Therefore, by letter dated April 23, 2013, the NYCTA notified petitioner that his employment was terminated effective April 18, 2013, subject to an application for reinstatement under the conditions set forth in Civil Service Law § 73. (See Answer Ex. F.)
In an application for leave of absence due to illness dated April 11, 2013, petitioner's physician indicated that petitioner could return to work on April 17, 2013. (See Reply Ex A.) The form includes a date stamp from NYCTA Operations Support with the date April 17, 2013. (See Reply Ex A.)
By letter dated July 25, 2013, petitioner requested reinstatement to his former title of conductor with the NYCTA and provided documentation in support of his request. (See Answer Ex. G.) By letter dated September 13, 2013, the NYCTA approved petitioner's request for reinstatement and requested that he report to the NYCTA Employment Center for reinstatement processing on September 18, 2013. (See Answer Ex. H.) By letter dated September 23, 2013, the NYCTA reinstated petitioner effective September 30, 2013. (See Answer Ex. I.)
Petitioner allegedly made numerous requests to the NYCTA for back pay for the period of April 17, 2013 to September 30, 2013, most recently on May 30, 2014 and received no response. (Petition ¶ 8.) Petitioner retired from the NYCTA on February 28, 2014. (See Answer Ex. B.)
Petitioner commenced the instant Article 78 proceeding on July 9, 2014.
Respondents argue that the petition should be dismissed because the proceeding is time-barred and the determination to terminate petitioner pursuant to Civil Service Law § 73 was not arbitrary and capricious.
DISCUSSION
An Article 78 proceeding must be brought within four months from when an administrative determination becomes final and binding upon a petitioner. (CPLR 217.) “An administrative decision becomes final and binding when a petitioner seeking review has been aggrieved by it.” (Matter of Yarborough v. Franco, 95 N.Y.2d 342 [2000] ; see also Matter of Schwartz v. Handy, 2014 Slip Op 07570 [1st Dept 2014].) The NYCTA terminated petitioner on April 18, 2013 and reinstated petitioner on September 30, 2013. Petitioner did not receive back pay for the period of April 17, 2013 to September 30, 2013 upon his reinstatement; therefore he was aggrieved by that determination as of September 30, 2013 and had four months following that date, up to January 30, 2014, to commence an Article 78 proceeding. Petitioner did not commence this proceeding until July 9, 2014; therefore it is time-barred.
That petitioner allegedly made numerous requests to the NYCTA for back pay, the most recent purportedly on May 30, 2014, is not relevant. “In circumstances where a party would expect to receive notification of a determination, but has not, the Statute of Limitations begins to run when the party knows, or should have known, that it was aggrieved by the determination.” (90–92 Wadsworth Avenue Tenants Association v. City of New York Department of Housing Preservation & Development, 227 A.D.2d 331 [1st Dept 1996].) Petitioner did not receive back pay on September 30, 2013 when he was reinstated and knew at that time that he was aggrieved by this determination. Petitioner's only legal recourse would have been a timely Article 78 proceeding, as there were no other administrative remedies to exhaust once he was reinstated on September 30, 2013. An attempt to negotiate with an agency, after a final administrative determination, does not toll or extend the period of limitation. (See Matter of Lubin v. Board of Educ. Of City of NY, 60 N.Y.2d 974, 976 [1983] ; Goonewardena v. Hunter Coll ., 40 AD3d 443, 443 [1st Dept 2007].)
Petitioner argues that he is not challenging the NYCTA's determination to terminate his employment or subsequent reinstatement to employment but is seeking to overturn the NYCTA's “implicit decision, never expressly conveyed to [petitioner], not to pay him back from April 17 to September 30, 2013.” (Reply MOL at 2.) This argument is anomalous; the notice of petition and petition both state that petitioner is seeking an order, “[d]eclaring that respondents' discharge of petitioner was arbitrary, capricious, and violated petitioner's rights secured by New York Civil Service Law § 73....” Moreover, petitioner's argument lacks merit. Petitioner has no right to back pay until he first establishes his contention that he was wrongfully terminated and/or refused reinstatement before September 30, 2013. Petitioner cannot do so, because any proceeding to establish this contention was time barred before this proceeding was commenced. (See Matter of Michalak v. State of New York Dept. of Labor, 88 A.D.2d 762, 763 [1st Dept 1982] [finding that Article 78 proceeding was time-barred where petitioner voluntary reinstated by respondent after leave of absence due to illness failed to seek back pay within four months of alleged wrongful termination.) The Court also notes that petitioner was paid for work that he did from September 30, 2013 until his retirement on February 24, 2014, but he was not paid for work that he did not do from April 18, 2013 to September 30, 2013.
CONCLUSION
Accordingly, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.