Matter of Gilliam v New York City Dept. of Sanitation

[*1] Matter of Gilliam v New York City Dept. of Sanitation 2008 NY Slip Op 50396(U) [18 Misc 3d 1141(A)] Decided on March 3, 2008 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2008
Supreme Court, Kings County

In the Matter of the Application of Charles Gilliam, Petitioner,

against

New York City Department of Sanitation, et. al., Respondents.



1664/08



Appearances:

Petitioner:

Charles Gilliam, pro se

Brooklyn NY

Respondent:

Michael Cardozo

Corp Counsel

NY NY

by Jamie M Zinaman, Esq.

Arthur M. Schack, J.

Petitioner Charles Gilliam moves, by order to show cause, to withdraw his resignation from respondent New York City (the City) Department of Sanitation (DSNY), and to correct the inaction of DSNY "to protect evaluate screen and monitor World Trade Center Workers [sic]." [*2]The New York City Corporation Counsel, on behalf of all respondents, served a cross-motion to dismiss Mr. Gilliam's petition at the commencement of the January 25, 2008 hearing on the instant order to show cause. The service of a cross-motion at a hearing on an order to show cause violates the service provisions for a cross-motion. (CPLR Rule 2215). Therefore, I told both petitioner and respondents' attorney that I would accept the Corporation Counsel's papers as opposition only.

Background

Mr. Gilliam, while a uniformed Sanitation Worker, submitted to a random drug test on June 11, 2007. He tested positive for cocaine metabolites [exhibit 2 of opposition papers]. Petitioner was suspended for 21 days, from June 14 to July 5, 2007, and then went to a rehabilitation center, from July 6 to July 29, 2007. Respondents arranged for Mr. Gilliam's rehabilitation program.

Petitioner, before returning to duty, submitted to another drug test on August 6, 2007. He again failed. His urine tested positive once more for cocaine metabolites [exhibit 3 of opposition papers]. DSNY presented petitioner a third and final opportunity to test drug-free, with the "Last Chance Agreement," dated August 28, 2007 [p. 15 of petition and exhibit 1 of opposition papers]. This was an offer for petitioner to accept a plea bargain to resolve all departmental charges against him for drug abuse and other infractions.

The Last Chance Agreement states, in relevant part:

I acknowledge that upon a subsequent positive drug test . . .

or refusal to test . . . the Department Advocate, at her sole discretion

may submit my resignation that I have signed today . . . Said resignation

to be effective immediately upon submission.

I hereby WAIVE any hearing or right to be heard for the purpose

of contesting the laboratory findings or the circumstances surrounding

a charge of refusing to test. I understand that the Department can move

for the termination of my employment at this time. My attorney has

explained the consequences of this plea and I fully understand its

conditions and agree to all of its terms.

This agreement will stay in effect for a period of 24 months

from the date of the Commissioner's approval . . . This agreement

together with the Plea to the Docket is the total agreement and no oral

Representations have been made which modify the terms of this

agreement, as any modifications must be in writing. [Emphasis added]

Petitioner, his attorney, and Rita R. Brackeen, DSNY's Department Advocate, all signed the Last Chance Agreement.

Mr. Gilliam, at p. 11 of his petition, claims that he was "coerced" to sign the Last Chance Agreement. However, he failed to explain how he was allegedly "coerced" to sign the Last Chance Agreement. Further, he claims, at p. 11, "I was falsely denied treatment under the World Trade Center Protocols after I asked for help." The "protocols" referred to are excerpts taken by Mr. Gilliam from the Report and Recommendations to Mayor Michael Bloomberg, entitled Addressing the Health Impacts of 9-11. Petitioner does not demonstrate that the Addressing the Health Impacts of 9-11 Report and Recommendations were enacted into either law or City policy. Petitioner refers to the portion of the Addressing the Health Impacts of 9-11 Report and [*3]Recommendations dealing with post-traumatic stress disorder (PTSD) for World Trade Center (WTC) workers. Despite Mr. Gilliam's claim that his cocaine addiction is a result of PTSD as a WTC worker, his petition and order to show cause do not mention his work assignment on either September 11, 2001 or subsequent to that tragic date. Also, Mr. Gilliam claims, at p. 11, that he didn't read the written Plea to the Docket because "there was no termination as part of the penalty listed, as I was told by my lawyer [sic]." Petitioner admitted that he was using drugs when he signed the Last Chance Agreement, by stating, at p. 11, "I was partying at the time of the hearing." As part of the Last Chance Agreement, Ms. Brackeen prepared Mr. Gilliam's application for resignation, if it had to be submitted [p. 14 of petition].

In Mr. Gilliam's August 28, 2007 Plea to the Docket [p. 35 of petititon], which satisfied numerous Departmental charges against him, Mr. Gilliam acknowledged "receipt of the complaint(s)" against him and his right to a disciplinary hearing with an appeal of an adverse decision to either the Supreme Court of the State of New York or the Civil Service Commission. Further, it states:

I am aware that this Plea to the Docket is subject to the approval

of the Commissioner of Sanitation. As a condition of the Commissioner's

acceptance, I hereby waive any and all rights granted to me under the New

York City Administrative Code and any other applicable statute, regulation

or agreement which pertains to disciplinary action against New York City

employees and acknowledge that this acceptance is the same as a finding

of guilt after a hearing.

I am fully aware that this waiver of my right to a hearing and the

rights specified above is final and irrevocable . . .

I have fully discussed this matter with my representative and have

been advised that the penalty for the charges filed against me is as agreed

herein . . . [Emphasis added]

Mr. Gilliam, his attorney, and Ms. Brackeen signed the Plea to the Docket, which referred to the Last Chance Agreement as the penalty. John Doherty, DSNY Commissioner, approved the Plea to the Docket on August 20, 2007.

Additionally, petitioner, his attorney and Ms. Brackeen signed an "Agreement to Participate" [p. 35 of petition] dealing with Mr. Gilliam's participation in a rehabilitation program and testing. Commissioner Doherty approved the Agreement to Participate on August 30, 2008. It states, in relevant part:

Based upon Respondent's [Mr. Gilliam] plea of guilty to these

charges and demonstrated desire to obtain rehabilitative treatment, and

after a conference by and between the undersigned Department Advocate

and Respondent's Representative, the following disposition was agreed

to: . . .

6.In the event Respondent does NOT SUCCESSFULLY complete

the rehabilitation program, ceases to cooperate with EAU [Employee

Assistance Unit], abuses drugs or alcohol, or otherwise demonstrates

unsatisfactory progress, the penalty in these matters will be pretrial

suspension and resignation. [Emphasis added] [*4]

Pursuant to these agreements, Mr. Gilliam was sent for another urine test on November 29, 2007. The test found that his urine sample was "substituted" [exhibit 4 of opposition papers]. The liquid Mr. Gilliam submitted was not urine. Creatinine, which is present at some level in everyone's urine, was not detected in his sample. As a result of these laboratory findings, petitioner's resignation, as required by the Last Chance Agreement, was submitted, effective January 19, 2008.

Mr. Gilliam's petition does not dispute that: he tested positive for cocaine on June 11 and August 6, 2007; he entered into the Last Chance Agreement, the Plea to the Docket, and the Agreement to Participate with DSNY; he has a substance abuse and alcohol problem; and that his resignation is in accordance with his Last Chance Agreement. In his disjointed petition, Mr. Gilliam claims that the City and DSNY,

should have treated him for a line of duty injury because of his PTSD, and implemented what he refers to as "protocols" for treating WTC workers, rather than "coercing" him to sign the Last Chance Agreement. At p.11 of the petition, in challenging his resignation, Mr. Gilliam states that "I have since almost succeeded stopped using drugs and I attend AA meetings. I am set to go back to Rehab next week [sic]." Despite his plea bargain with DSNY which gave him a third chance to prove he was not a substance abuser, Mr. Gilliam believes that the City and DSNY should continue to aid him, because "DSNY had not done anything to help me or give me help when I relapsed after attending and completing a Rehab which they had arranged for me in July [sic] [p. 11 of petition]."

Petitioner has failed to present the Court any documentation of his working at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. The Court has no way to ascertain what Mr. Gilliam's work assignments were in reference to 9/11 and its aftermath. Further, while the Court is sympathetic to Mr. Gilliam's cry for help, he has been given ample opportunity by respondents to solve his self-admitted drug and alcohol problems. Respondents, in an attempt to help petitioner, entered into a plea agreement, last August, with petitioner and his counsel. In return for his Last Chance Agreement, Plea to the Docket, and Agreement to Participate, petitioner waived numerous legal rights to challenge subsequent drug testing findings and the ultimate submission of his resignation for violation of the August 28, 2007 Last Chance Agreement. Therefore, respondents had the right to file Mr. Gilliam's resignation and terminate his employment with DSNY.

Timeliness of instant petition

Respondents, in opposing petitioner's order to show cause, claim that the four-month statute of limitations (CPLR § 217) bars petitioner from going forward. The City claims that since the Last Chance Agreement was entered into on August 28, 2007, and the instant petition and order to show cause were signed on January 16, 2008, the instant petition is time-barred. However, Mr. Gilliam is challenging his termination, effective on January 19, 2008, not the August 29, 2007 Last Chance Agreement. The Court of Appeals (Armstrong v Centerville Fire Co., 83 NY2d 937, 939 [1994]) held that "[t]he four-month period of limitations governing mandamus to review starts to run when the determination becomes final and binding." In Armstrong, a case dealing with the expulsion of a volunteer firefighter from his company, the Court ruled that the statute of limitations started to run on the effective date of Armstrong's expulsion, not the date when he was expelled. Citing Armstrong, the Appellate Division, Second Department (Mawn v [*5]County of Nassau, 17 AD3d 467, 468 [2005]) held that when "an employee is not entitled to a hearing in connection with the termination of his employment, the determination to terminate his employment becomes final and binding on the date the termination becomes effective." "A challenged determination is final and binding when it has its impact' upon the petitioner who is thereby aggrieved." (Edmead v McGuire, 67 NY2d 714, 716 [1986]). (See Simon v New York City Transit Authority, 34 AD3d 823 [2d Dept 2006]; Drake v Reuter, 27 AD3d 736, 737 [2d Dept 2006]). Therefore, petitioner is not time-barred in the instant Article 78 proceeding. January 19, 2008 is the date upon which Mr. Gilliam's termination is "final and binding." However, if petitioner had challenged the Last Chance Agreement he would have been time-barred.

Petitioner's voluntary waiver of rights

The Last Chance Agreement is valid if petitioner's waiver of his right to challenge his dismissal was "freely, knowingly and openly arrived at, without taint of coercion or duress." (Abramovich v Board of Ed. of Central School Dist. No. 1 of Towns of Brookhaven and Smithtown, 46 NY2d 450, 455 [1979]). A public employee may waive permanent employment status to settle a disciplinary proceeding if the public employee is aware of the consequences of executing a waiver of rights. In Whitehead v State, Department of Mental Hygiene, 71 AD2d 653, 654 [2d Dept 1979], the Court instructed that:

it is clear that by means of a settlement an employee who enjoys

permanent status may, if voluntarily and knowingly done, waive

statutory and contractual rights to a hearing before dismissal, where

such waiver serves as the consideration for the curtailment of pending

disciplinary proceedings. Such waiver does not contravene the public

policy of this State (Matter of Abramovich v Board of Educ., 46 NY2d

450, mot for rearg den 46 NY2d 1076).

Recently, the Appellate Division, First Department (Newman v Fire Dept. of City of New York, 47 AD3d 444, [January 10, 2008]) affirmed a decision of Supreme Court, New York County, dismissing the Article 78 petition of a New York City Firefighter, who challenged his dismissal for failing a urine test for alcohol, pursuant to an agreement to extend his one-year probationary period to eighteen months. The Newman Court found that the agreement was unambiguous and the "waiver of rights was knowingly and freely made." In the instant action, petitioner acknowledged that his attorney was present and advised him of his rights. Mr. Gilliam's plea bargain was made as the consideration for the curtailment of pending disciplinary proceedings. Further, with Mr. Gilliam's failure to present a shred of evidence of his alleged coercion, the Last Chance Agreement was entered into "freely, knowingly and openly arrived at, without taint of coercion or duress." (Abramovich at 455).

Judicial review in an Article 78 proceeding

It is axiomatic that in an Article 78 proceeding the function of the court is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see Pell v Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974] ). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." (Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a [*6]reasonable [person], of all the facts necessary to be proved in order to authorize the determination"' (Ador Realty, LLC v Division of Housing and Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005], quoting Pell at 231).

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law (see Pell at 231; Matter of Brockport Cent. School Dist. v New York State & Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion." (Featherstone v Franco, 95 NY2d 550, 554 [2000]). Further, the Court of Appeals (Featherstone at 554) instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Citing Featherstone, the Court of Appeals, in Kelly v Safir (96 NY2d 32, 38 [2001]), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general (Pell, supra at 234)." In Monahan v Doherty (34 AD3d 346, 347 [1st Dept 2006]), the Court in upholding the dismissal of a Sanitation Worker for misconduct, which included negligently operating a department truck, violating sick leave and lateness regulations, and being insubordinate to a supervisor, held that "[t]he penalty of dismissal was not disproportionate to the offenses and does not shock the conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001])." In Ballentine v Commissioner of the New York City Dept. of Sanitation (304 AD2d 348, 348 [1st Dept 2003]), petitioner violated DSNY sick leave policy. The Court held that "[t]he penalty imposed for the proven misconduct is not so disproportionate as to shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38)." Similarly, in Wallace v Department of Sanitation of City of New York (303 AD2d 295, 296 [1st Dept 2003]), the Court upheld the dismissal of a Sanitation Worker for being absent without leave, failing to report to a Department clinic and failing to respond to telephone calls, holding that "[t]he penalty of dismissal was not disproportionate to the offenses and does not shock the conscience."

Both McCoy v Gunn (153 AD2d 863 [2d Dept 1989] and Phifer v Gunn (143 AD2d992 [2d Dept 1988]) were Article 78 proceedings to review the dismissal by the New York City Transit Authority of bus drivers for substance abuse. The driver in McCoy twice tested positive for marihuana. The Court, at 865, citing Pell, held that "the penalty of dismissal, when considered in the light of the petitioner's conduct, was not so disproportionate to the offense as to be shocking to one's sense of fairness. In Phifer, at 992, the driver was found to have "used a controlled substance without authorization in violation of respondents' regulations." Also citing Pell, the Court held, at 992, that "[t]he penalty of dismissal is not so disproportionate to the nature of petitioner's misconduct."

The fact pattern in Blount v Bratton (216 AD2d 6 [1st Dept 1995]), is similar to that in the instant proceeding. New York City Police Officer Blount challenged his dismissal, in an Article 78 proceeding, for submitting in a drug test a urine sample with yellow food dye, not urine. The Court confirmed the Police Commissioner's dismissal of petitioner Blount, holding that "we do not find the penalty of dismissal disproportionate to the offense or shocking to one's sense of [*7]fairness." Earlier this month, in Chaplin v New York City Board of Education (___ AD3d ___, 2008 NY Slip Op 01012 [1st Dept Feb. 5, 2008]), the Court held that "[a]cts of moral turpitude committed in the course of public employment are an appropriate ground for termination of even long standing employees with good work histories (see Matter of Kelly v Safir, 96 NY2d 32 [2001])."

Petitioner not coerced into plea agreement

In the instant case, it is clear the Mr. Gilliam voluntarily entered into his Last Chance Agreement to avoid discharge. In Wolfe v Jurcznski (241 AD2d 88 [3d Dept 1998]), a Schenectady police lieutenant was threatened with disciplinary charges for an off-duty incident while intoxicated. Lieutenant Wolfe entered into a written agreement to avoid formal charges if he would enter an alcohol treatment program and abide by other conditions. The agreement provided, in ¶ 11, for the lieutenant's "immediate dismissal without a hearing" by the Chief of Police for "failure to comply or satisfactorily complete" any of the conditions. Subsequently, Lieutenant Wolfe failed to enter an alcohol treatment program and engaged in alcohol related misconduct. After a departmental investigation, the lieutenant was offered an opportunity to resign. After conferring with union representatives, he resigned. He then commenced an Article 78 proceeding to challenge his resignation, arguing that it was not voluntary, but came about due to "duress, coercion and undue influence." The Court, at 90-91, upheld the resignation, holding that:

Petitioner's resignation cannot be considered involuntary merely

because he was offered the unpalatable choice of resigning or being

discharged unless respondents had no right to terminate his employment . . .

Here, the settlement agreement, which petitioner voluntarily executed

after consultation with his union representative, expressly allows for

petitioner's termination, without a hearing, if he has not complied with its terms "to the satisfaction of . . . the Chief of Police." Given petitioner's considerable delay in entering a rehabilitative program, during which

time he admittedly continued to drink and engaged in misconduct similar

to that which gave rise to the initial charges, the Chief's finding that

petitioner had failed to satisfactorily carry out his obligations under

the agreement was in no respect arbitrary or unreasonable, nor is there

any basis for concluding that it was the product of bad faith . . .

Inasmuch as respondents were entitled to discharge petitioner pursuant

to paragraph 11 of the agreement, their request for his resignation

cannot be deemed improperly coercive. Just as Lieutenant Wolfe voluntarily accepted an agreement that allowed for his resignation to avoid termination, petitioner Gilliam voluntarily entered into his Last Chance Agreement, after [*8]consulting his counsel.

Petitioner's argument that his resignation was coerced must fail. A threat to do that which one has a legal right to do does not, as a matter of law, constitute duress or coercion. DSNY had a right to terminate petitioner for his failure to comply with his Last Chance Agreement. (See Wolfe v Jurcznski, supra; Manel v Mosca, 216 AD2d 468 [2d Dept 1995]; Rychlick v Coughlin, 99 AD2d 863 [3d Dept 1984]; De Marco v Mclaughlin, 69 AD2d 882 [2d Dept 1979]).

Petitioner's good faith termination

It is well-settled that a public employer may terminate a probationary employee for

any reason, as long as the termination is not in "bad faith," which would be for a constitutionally impermissible reason or a violation of statutory or case law. Petitioner reverted to probationary status with his voluntary acceptance of the Last Chance Agreement. In Swinton v Safir (93 NY2d 758 [1999]), a discharged New York City probationary police officer challenged NYPD's right to dismiss him without a hearing. The Court, at 762-763, instructed:

Petitioner's grounds for annulling the Police Department's

termination are without merit. He was a probationary police officer

at the time of his dismissal. While in that status, he "may be dismissed for almost any reason, or for no reason at all" (Matter of Venes v

Community School Bd. of Dist. 26, 43 NY2d 520, 525 [1978]).

As a probationary employee, petitioner had no right to challenge the

termination by way of a hearing or otherwise, absent a showing that

he was dismissed in bad faith or for an improper or impermissible

reason (see, Matter of York v McGuire, 63 NY2d 760, 761 [1984]; Matter of Anonymous v Codd, 40 NY2d 860 [1976]). Petitioner failed

to demonstrate either.

(See Johnson v Katz, 68 NY2d 649, 650 [1986]; Talamo v Murphy, 38 NY2d 637, 639 [1976]; Browne v City of New York, 45 AD3d 590 [2d Dept 2007]; Johnson v City of New York, 34 AD3d 484, 485 [2d Dept 2006]; Robinson v Health and Hospitals Corp., 29 AD3d 807, 809 [2d Dept 2006]; Walsh v New York State Thruway Authority, 24 AD3d 755, 757 [2d Dept 2005]).

The termination of a tenured employee placed on disciplinary probation is subject to the same judicial standard of review as the termination of a probationary employee. In Wilson v Bratton (266 AD2d 140 [1st Dept 1999]), New York City Police Officer Wilson, a thirteen-year veteran of the force was placed on dismissal probation because of chronic lateness and being intoxicated on duty. She agreed to dismissal probation acknowledging that "during this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings." While on dismissal probation she received at least five command disciplines for lateness and ultimately made a false time entry when ordered to visit an NYPD doctor at the Psychological Services Unit. She was summarily dismissed after her captain recommended dismissal. In her Article 78 proceeding to challenge her dismissal, the Court found that NYPD had sufficient grounds for termination. Further, at 141-142, the Court held, "[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason . . . as petitioner acknowledged when she signed the agreement to dismissal probation in 1993." The Court concluded, at 142. "[h]aving failed to fulfill her responsibilities after being given [*9]numerous chances by respondents, she has no basis to argue that she was terminated in bad faith." (See Dillon v Safir, 270 AD2d 116 (1st Dept [2000]).

Petitioner Gilliam, as with any other probationary employees, bears the burden of proving that his termination was in bad faith. "The petitioner bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation." (Rossetti-Boerner v Hampton Bays Union Free School District, 1 AD3d 367 [2d Dept 2003]). (See Rivera v Department of Educ., City of New York, 25 AD3d 559 [2d Dept 2006]; Walsh v New York State Thruway Authority at 757; Santoro v County of Suffolk, 20 AD3d 429, 430 [2d Dept 2005]; Witherspoon v Horn, 19 AD3d 250, 251 [1st Dept 2005]; Soto v Koehler, 171 AD2d 567 [1st Dept 1991]). The Court's determination in the discharge of a probationary employee "is limited to an inquiry as to whether the termination was made in bad faith." (Johnson v Katz, 68 NY2d 650 [1986]). In reviewing Article 78 administrative determinations the function of the Court "should not be to second guess' . . . [but] is simply to determine if petitioner has shown bad faith on the part of the respondent." (Soto v Koehler at 569).

In the instant proceeding, petitioner tested positive for cocaine in June 2007. He was suspended and sent for rehabilitation. After his return from a rehabilitation program, in August 2007, he again failed a drug test for cocaine. After his two failed drug tests and his attempt at rehabilitation, DSNY gave petitioner a third chance with the Last Chance Agreement. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was on notice that a third drug test failure would result in termination of employment. In November 2007 he failed a drug test for the third time, with his substitution of some other liquid for urine. Petitioner does not allege that any of the laboratory tests were incorrect. It is clear to the Court that three failed drug tests in less than six months is a good faith basis to terminate petitioner. Mr. Gilliam entered into a plea bargain to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse. For his failure to abide by his plea agreement, petitioner must accept responsibility for his actions.

In Riddick v City of New York (4 AD3d 242 [1st Dept 2004]), an NYPD detective, represented by counsel, negotiated a plea agreement with NYPD for various disciplinary infractions, including an alcohol problem, that allowed the Police Commissioner to terminate him at any time for a violation fo the agreement. After Detective Riddick violated the agreement he was terminated. Detective Riddick then commenced an Article 78 proceeding against the City, claiming discrimination because of his alcohol dependency. Detective Riddick had a substance problem that he was unsuccessful in solving by rehabilitation. Similarly, petitioner in the instant case was unable to resolve his substance abuse problem. The Riddick Court, at 246, found that "the City did not engage in unlawful employment practices by terminating him after giving him repeated opportunities to rehabilitate himself." The Court in Riddick, at 247, just as in Wolfe v Jurcznski at 90-91, upheld the enforcement of the plea agreement between petitioner and his municipal employer, stating, "[s]ince plaintiff agreed to dispose of the pending departmental charges and specifications pursuant to a negotiated plea, plaintiffin all fairness to himself, his fellow officers, the Department and the publicshould be bound by those terms." Similarly, petitioner Gilliam was bound by his plea agreement, which gave DSNY the unilateral right to terminate his employment without a hearing.

CPLR § 3017 relief appropriate to the proof

In this Article 78 proceeding, the relief demanded by petitioner in both the instant order to show cause and the petition is similar, namely the withdrawal of petitioner's resignation and the implementation of WTC "protocols." Petitioner did not seek summary judgment, and respondents were late in serving a cross-motion for dismissal. However, my denial of the instant order to show cause will not dispose of the petition. It will compel the City to move for summary judgment and dismissal of the petition. This prospective and superfluous motion practice will consume scarce judicial resources. Therefore, the procedural posture of the instant Article 78 proceeding allows the Court in the interest of judicial economy to invoke CPLR § 3017 (a) and dismiss the underlying petition, as well as the instant order to show cause. CPLR § 3017 (a) states, in relevant part, "the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as are just."

In Kaminsky v Kahn, 23 AD2d 231, 236 [2d Dept 1965], the Court instructed:

The Supreme Court in this State is a court of general original jurisdiction

in law and equity (see NY Const., art. VI, § 7, subd. a.) and, in

conformity with its all inclusive powers, the court is authorized in any

action to render such judgment as is appropriate to the proofs received

in conformity with the allegations of the pleadings, irrespective of the

nature of the relief demanded, subject, of course, in a proper case,

to the imposition of such terms as may be necessary to protect the rights

of any party. (See CPLR 3017, subd. [a]). The court, within the

framework of the pleadings in any case, may draw upon its broad

reservoir of powers established by law or formulated under the

principles of equity, and utilize any of them to afford complete relief

to a party. (Cf. Susquehanna S.S. Co. v Andrson & Co., 239 NY 285,

294 [1925]). [Emphasis added]

Citing Kaminsky v Kahn, the Court in Leader v Durst (26 AD2d 705, 706 [2d Dept 1966]), held that "[i]n conformity with its all inclusive powers the Supreme Court may

. . . utilize its broad powers to afford the parties complete relief within the framework of the pleadings." (See Nowak v Wereszynski, 21 Ad2d, [4th Dept 1964]).

Judge Bellacosa commented about the Supreme Court invoking its "broad reservoir of powers," pursuant to CPLR § 3017 (a), in a unanimous 7-0 Court of Appeals decision, State v Barone, 74 NY2d 332, 336 (1989). He called this "our peerless feature of Anglo-American jurisprudence." Further, at the same page, he warned that "the limitations on the variety, flexibility and sweep of its potential application must be reflected in a proportionate, prudential discretion by the initial equity trial court."

The instant proceeding calls for the use of CPLR § 3017 (a) "in a proportionate, prudential discretion" by this Court. Therefore, in the interest of judicial economy and to deter [*10]wasteful motion practice in this Article 78 proceeding, I find it appropriate, from the proof offered, to not only deny petitioner's order to show cause, but also to grant summary judgment to respondents and dismissal of the instant petition.

The proof presented by respondents makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). It is clear, pursuant to CPLR Rule 3212 (b), that in the instant petition "the cause of action . . . has no merit" as a matter of law. Petitioner is unable to bear the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, supra at 562; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [2d Dept 1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [2d Dept 1991]). The evidence presented requires the Court to grant summary judgment to respondents. There are no triable issues of material fact. The instant petition is dismissed. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979])

Conclusion

Accordingly, it is

ORDERED, that petitioner CHARLES GILLIAM's order to show cause is denied; and it is further

ORDERED, that pursuant to CPLR § 3017 (a), it is appropriate to the proof in this special proceeding to grant respondents, NEW YORK CITY DEPARTMENT OF SANITATION, et. al., summary judgment and dismissal of the instant petition.

This constitutes the Decision and Order of the Court.

ENTER

_______________________________

HON. ARTHUR M. SCHACK

J. S.C.