Matter of Yohay v City of New York

Matter of Yohay v City of New York 2020 NY Slip Op 01443 Decided on March 3, 2020 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 March 3, 2020
Acosta, P.J., Friedman, Mazzarelli, Webber, JJ.
11181 100469/18

[*1] In re Paul Yohay, Petitioner-Appellant,

v

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

Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for appellant.

Georgia M. Pestana, Acting Corporation Counsel, New York (Barbara Graves-Poller of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered December 27, 2018, which granted the cross motion of respondents City of New York and New York City Administration for Children's Services (ACS) to dismiss the petition brought pursuant to CPLR article 78 to annul ACS's determination, dated December 28, 2017, denying petitioner's request for advanced and extended sick leave, and to direct respondents to approve such request, unanimously affirmed, without costs.

Supreme Court providently determined that petitioner was barred from compelling ACS to grant his leave request in this proceeding. The regulations governing petitioner's application for additional and extended leave gave the ACS agency head discretion in the matter and "mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial" (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]). Accordingly, ACS's decision was not subject to article 78 review and the petition was properly dismissed.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2020

CLERK