Rubino v City of New York

Rubino v City of New York 2007 NY Slip Op 07992 [44 AD3d 537] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

John Rubino, Appellant,
v
City of New York et al., Respondents.

—[*1] Eric Nelson, Staten Island, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson of counsel), for respondents.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 19, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly deemed this action a CPLR article 78 proceeding and dismissed it based on the four-month statute of limitations in CPLR 217 (1) (see e.g. Foster v City of New York, 157 AD2d 516 [1990]). Contrary to plaintiff's claim, there was an administrative determination that he could challenge in an article 78 proceeding, namely, defendants' notification, shortly before April 13, 2004, that plaintiff was not entitled to a hearing because his resignation had been found. However, plaintiff did not bring this action until March 2005.

Plaintiff's argument for a factual hearing as to when he ceased to be a New York State resident is unavailing. The verified complaint states that "at all times hereinafter mentioned the Plaintiff resides" in New Jersey (emphasis added). His office was thus vacated (Public Officers Law § 30 [1] [d]). Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.