Matter of John Schroeder v New York State Insurance Fund

Matter of Schroeder v New York State Ins. Fund 2005 NY Slip Op 09647 [24 AD3d 247] December 15, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of John Schroeder, Respondent,
v
New York State Insurance Fund et al., Appellants.

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Order, Supreme Court, New York County (Charles J. Tejada, J.), entered June 23, 2004, which denied respondents' motion to dismiss the petition, unanimously affirmed, without costs.

Petitioner was dismissed from his position of employment at respondent New York State Insurance Fund, purportedly for violating a condition of his continued employment set forth in an arbitration award, requiring his attendance and regular participation in a rehabilitation program. Inasmuch as petitioner, in this proceeding, challenges the determination terminating his employment and not the arbitrator's award, the proceeding was properly brought pursuant to CPLR article 78, and not under CPLR article 75 (see Matter of Watson v Shew, 282 AD2d 467 [2001]; cf. Matter of Plummer v Klepak, 48 NY2d 486 [1979], cert denied 445 US 952 [1980]). Accordingly, the proceeding is not subject to dismissal as time-barred under CPLR 7511. Concur—Tom, J.P., Marlow, Williams, Gonzalez and Malone, JJ.