Matter of DeMartino v City of New York

Matter of Matter of DeMartino v City of New York 2012 NY Slip Op 01136 Decided on February 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012
Tom, J.P., Andrias, Catterson, Richter, Abdus-Salaam, JJ.
6816 105059/08

[*1]In re Gene DeMartino, etc., Petitioner-Respondent,

v

City of New York, et al., Respondents-Appellants.




Michael A. Cardozo, Corporation Counsel, New York (Tahirih
M. Sadrieh of counsel), for appellants.
Lichten & Bright, P.C., New York (Stuart Lichten of counsel),
for respondent.

Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered August 10, 2010, annulling and vacating respondents' determination refusing to pay Anthony Mezzacappa and Orrett (Lennie) Haughton (collectively, the grievants) at the Supervisor Highway Repair (SHR) rates fixed by the New York City Comptroller, and awarding Mezzacappa the total sum of $137,481 and Haughton the total sum of $13,790, unanimously reversed, on the law, without costs, the judgment vacated, the petition denied and the proceeding brought pursuant to CPLR articles 75 and 78 dismissed.

Petitioner commenced this hybrid proceeding on April 4, 2008, to confirm a May 24, 2005 arbitration award and to annul respondents' determination refusing to pay the grievants at the SHR rates fixed by the city comptroller. The limitations period for actions upon arbitration awards is one year (CPLR 215[5]). Thus, the proceeding is untimely to the extent it is brought under article 75. We reject petitioner's argument that respondents are barred by the doctrine of equitable estoppel from asserting the defense of the statute of limitations.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK