668 N.Y.S.2d 831 | N.Y. App. Div. | 1998
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition in this CPLR article 78 proceeding as time-barred. Petitioners commenced this proceeding to challenge respondent’s failure to comply with Civil Service Law § 75 in discharging petitioner Sandra Mungari from her employment in respondent’s bus garage. Petitioners argue that the Statute of Limitations was tolled by a pending arbitration proceeding on the issue whether Mungari was represented by Teamster Local 182 (Teamster) or by the Service Employees International Union Local 200-B (SEIU). Petitioners argue that, if Mungari were deemed to be represented by SEIU, she had a right to pursue her grievance in arbitration, bypassing judicial review, whereas if she were deemed to be represented by Teamster, she would have to seek judicial review in a CPLR article 78 proceeding. Petitioners
Petitioners contend for the first time on appeal that this proceeding was timely commenced because it was in the nature of a writ of mandamus to compel, and such an action did not accrue until the date on which Mungari’s demand for reinstatement was refused. Because that contention is raised for the first time on appeal, we do not consider it (see, Gonzalez v New York State Dept, of Correctional Servs., 181 AD2d 1011, 1012, lv denied 80 NY2d 754; see also, Antone v General Motors Corp., 64 NY2d 20, 31). (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — CPLR art 78.)