John Tipaldo v Christopher Lynn

Tipaldo v Lynn 2004 NY Slip Op 04429 [8 AD3d 36] June 3, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

John Tipaldo, Appellant,
v
Christopher Lynn, as Commissioner of the Department of Transportation of the City of New York, et al., Respondents.

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Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered on or about May 22, 2003, which, in this "whistleblower" action commenced by plaintiff city employee pursuant to Civil Service Law § 75-b, inter alia, denied plaintiff's motion for leave to amend his complaint to assert a cause of action pursuant to 42 USC § 1983, unanimously affirmed, without costs.

In reviewing the denial of a prior similar motion to amend, we found that plaintiff had failed to make any showing that the city defendants had a policy or custom of retaliating against municipal employees for reporting perceived conduct violations by fellow employees (see Tipaldo v Lynn, 284 AD2d 142 [2001]). Indeed, we observed that the City's investigation of plaintiff's demotion, its attendant findings and resulting offer to compromise suggested that there was no official custom or practice of retaliatory conduct by the City (id.). Inasmuch as plaintiff's present motion to amend is affected by the same deficiency as its predecessor, we perceive no reason to reach a different conclusion as to its merit. Concur—Nardelli, J.P., Saxe, Williams, Friedman and Sweeny, JJ.