Matter of Erdey v City of New York

Matter of Erdey v City of New York 2015 NY Slip Op 05257 Decided on June 18, 2015 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 June 18, 2015
Gonzalez, P.J., Tom, Friedman, Kapnick, JJ.
15466 100170/13

[*1] In re Richard Erdey, Petitioner-Appellant,

v

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

The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 24, 2014, denying the petition, except for the second cause of action, on which relief was previously granted, inter alia, to compel respondents to expunge all materials placed in petitioner's personnel file related to a finding that he violated respondent Fire Department's (FDNY) Equal Employment Opportunity (EEO) policy or, in the alternative, to compel respondents to grant petitioner a full and fair opportunity to challenge the allegations that he violated the policy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner waived any rights to the relief he seeks, the expungement of the subject materials from his personnel file or an opportunity to be heard on the allegations, in a September 27, 2011 agreement with FDNY settling disciplinary charges against him (see Matter of Miller v Coughlin, 59 NY2d 490 [1983]; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450, 455 [1979], cert denied 444 US 845 [1979]). His reliance on Matter of D'Angelo v Scoppetta (19 NY3d 663 [2012]) is misplaced, since there was no waiver in that case. Petitioner's arguments that the waiver provisions of the settlement agreement are inapplicable to the instant case were improperly raised for the first time in his reply brief.

Petitioner's contention that the court should have awarded him attorneys' fees is not properly before us since it was raised for the first time in his reply brief.

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 18, 2015

CLERK