Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Bargaining

Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Bargaining 2011 NY Slip Op 08807 Decided on December 6, 2011 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 December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
6232 104695/08

[*1]In re Lillian Roberts, etc., Petitioner-Appellant,

v

The Board of Collective Bargaining of the Office of Collective Bargaining, et al., Respondents-Respondents.




Law Offices of Leonard A. Shrier, New York (Leonard A.
Shrier of counsel), for appellant.
John F. Wirenius, New York, for the Board of Collective
Bargaining and Marlene A. Gold, respondents.
Michael A. Cardozo, Corporation Counsel, New York (Scott
Shorr of counsel), for Robert Doar, Roberto Velez, James F.
Hanley and the City of New York, respondents.

Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered February 16, 2010, which, in this article 78 proceeding, granted respondent the Board of Collective Bargaining's motion to dismiss the petition, unanimously affirmed, without costs.

The motion court properly dismissed the petition because petitioner, Executive Director of District Council 37, AFSCME, AFL-CIO, cannot challenge the penalty of dismissal, imposed on union member, Zinovy Levitant, in this proceeding. Levitant's termination from his position with the Human Resources Administration (HRA) was preceded by a February 2, 2007 Office of Administrative Trials and Hearings' recommendation and report. Levitant's appeal of HRA's penalty was dismissed by the Civil Service Commission, and Levitant failed to commence an article 78 proceeding challenging that determination. "The express provisions of Civil Service Law §§ 75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission" (City of New York v MacDonald, 239 AD2d 274 [1997]).

The motion court also properly found that the challenged January 23, 2008 decision by the Board of Collective Bargaining was not arbitrary and capricious insofar as it failed to order the rescission and expungement of Levitant's termination (see CPLR 7803[3]). The challenged determination only related to the improper charge of misuse of confidential information. Levitant's termination was based on a number of sustained charges which were not found to be the product of improper anti-union practices. Thus, the Board reasonably concluded that there was no basis to order the rescission and expungement of Levitant's termination. Reinstatement of an employee in the context of an improper practice petition before the Board is only warranted where anti-union animus was the "substantially motivating cause of his dismissal and not merely one of the reasons therefor" (Matter of City of Albany v Public Empl. Relations Bd., 57 AD2d
374, 376 [1977]), affd 43 NY2d 954 [1978]; see also Matter of County of Nassau v State of N.Y. [*2]Pub. Empl. Relations Bd., 103 AD2d 274, 279 [1984]).

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

ENTERED: DECEMBER 6, 2011

CLERK