Pasieka v. New York City Transit Authority

Jul 25, 2006
Versions:31 A.D.3d 769
818 N.Y.S.2d 493

In the Matter of ROBERT PASIEKA, Respondent, v NEW YORK CITY TRANSIT AUTHORITY, Appellant. [818 NYS2d 493]

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority dated March 6, 2002, which, after a hearing, demoted the petitioner from the position of Maintenance Supervisor Level I, to the position of Maintainer, which was affirmed by a decision of the New York City Civil Service Commission dated May 17, 2004, the New York City Transit Authority appeals from (1) a decision of the Supreme Court, Kings County (Douglass, J.), dated March 3, 2005, and (2) an order and judgment (one paper) of the same court dated March 31, 2005, which, upon the decision, in effect, granted the petition and annulled the determination, and denied its cross motion to dismiss the petition.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order and judgment is reversed, on the law, the cross motion is granted, the petition is denied, and the proceeding is dismissed; and it is further,

Ordered that one bill of costs is awarded to the appellant.

Because the petitioner opted to pursue an administrative appeal of the determination of the New York City Transit Authority (hereinafter the TA) to the New York City Civil Service Commission (hereinafter the CSC), the proceeding against the TA was barred by Civil Service Law § 76 (see Civil Service Law § 76 [1], [3]; Matter of Turner v New York City Tr. Auth., 252 AD2d 558 [1998]; Matter of Wood v Cosgrove, 237 AD2d 616 [1997]).

Furthermore, the Supreme Court erred in determining that the TA and the CSC were “mutual agents” of each other, and that the proceeding was therefore timely commenced. In any event, the petitioner failed to establish that the CSC‘s decision was in excess of its authority or in violation of the Constitution or the laws of this State (see Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 324 [1991]; Matter of Turner v New York City Tr. Auth., supra).

In view of the foregoing, we do not reach the parties’ remaining contentions. Krausman, J.P., Mastro, Spolzino and Covello, JJ., concur.