In the Matter
of the Application of Winsley Watts, Petitioner,
against
New York City Transit Authority and THOMAS F.
PENDERGRAST, as President of the New York City Transit Authority,
Respondents.
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100697/14
For petitioner
Lichten & Bright, P.C.
By: Stuart Lichten, Esq.
474 Park Ave South 17th Floor
New York NY 10014
(646) 588-4872
For respondents
Lewis S. Finkelman, Esq., Vice President & General Counsel
NYCTA
By: Mariel A. Thompson, Esq.
New York City Transit Authority
130 Livingston St 12th Floor
Brooklyn NY 11201
(718) 694-3893
Michael D. Stallman, J.
Petitioner brings this Article 78 proceeding to challenge a determination of
respondent New York City Transit Authority (NYCTA) to deny petitioner back pay after
the NYCTA terminated petitioner's employment pursuant to Civil Service Law §
73, and after the NYCTA reinstated petitioner to employment. Petitioner seeks an
order:
declaring that respondents' discharge of petitioner was arbitrary, capricious,
and violated [*2]petitioner's rights secured by Civil
Service Law § 73; and
directing respondents to provide back pay and all other benefits to petitioner
for the period between his discharge and his reinstatement, and in all other ways to make
petitioner whole. BACKGROUND
The NYCTA permanently
appointed petitioner Winsley Watts to the competitive civil service title of conductor on
January 10, 1994. (See Answer Ex. B.) On April 18, 2012, petitioner took unpaid
medical leave as a result of injuries from a motor vehicle accident unrelated to his
employment on April 16, 2012. (See Answer Ex. C.) By letter dated June 20,
2012, the NYCTA advised petitioner that pursuant to Civil Service Law § 73, the
NYCTA would seek termination of his employment after one year, or on the date his
disability was deemed permanent (whichever occurred first), and to contact the NYCTA
Employee Availability Unit should his medical condition change. (See id.)
By letter dated February 28, 2013, the NYCTA notified petitioner that his absence
from work due to the non-employment related injury was approaching one year and
pursuant to Civil Service Law, he would be terminated effective April 18, 2013, unless
he returned to work by that date. (See Answer Ex. D.)
Respondents allege that petitioner did not respond to the February 28, 2013 letter or
request to return to work. (See Answer ¶ 22.) Therefore, by letter dated
April 23, 2013, the NYCTA notified petitioner that his employment was terminated
effective April 18, 2013, subject to an application for reinstatement under the conditions
set forth in Civil Service Law § 73. (See Answer Ex. F.)
In an application for leave of absence due to illness dated April 11, 2013,
petitioner's physician indicated that petitioner could return to work on April 17, 2013.
(See Reply Ex A.) The form includes a date stamp from NYCTA
Operations Support with the date April 17, 2013. (See Reply Ex A.)
By letter dated July 25, 2013, petitioner requested reinstatement to his
former title of conductor with the NYCTA and provided documentation in support of his
request. (See Answer Ex. G.) By letter dated September 13, 2013, the NYCTA
approved petitioner's request for reinstatement and requested that he report to the
NYCTA Employment Center for reinstatement processing on September 18, 2013.
(See Answer Ex. H.) By letter dated September 23, 2013, the NYCTA reinstated
petitioner effective September 30, 2013. (See Answer Ex. I.)
Petitioner allegedly made numerous requests to the NYCTA for back pay for
the period of April 17, 2013 to September 30, 2013, most recently on May 30, 2014 and
received no response. (Petition ¶ 8.) Petitioner retired from the NYCTA on
February 28, 2014. (See Answer Ex. B.)
Petitioner commenced the instant Article 78 proceeding on July 9,
2014.
Respondents argue that the petition should be dismissed because the proceeding is
time-barred and the determination to terminate petitioner pursuant to Civil Service Law
§ 73 was not arbitrary and capricious.
DISCUSSION
An Article 78
proceeding must be brought within four months from when an administrative
determination becomes final and binding upon a petitioner. (CPLR 217.) "An
administrative decision becomes final and binding when a petitioner seeking review has
been [*3]aggrieved by it." (Matter of Yarborough v
Franco, 95 NY2d 342 [2000]; see also Matter of Schwartz v Handy, 2014
Slip Op 07570 [1st Dept 2014].) The NYCTA terminated petitioner on April 18, 2013
and reinstated petitioner on September 30, 2013. Petitioner did not receive back pay for
the period of April 17, 2013 to September 30, 2013 upon his reinstatement; therefore he
was aggrieved by that determination as of September 30, 2013 and had four months
following that date, up to January 30, 2014, to commence an Article 78 proceeding.
Petitioner did not commence this proceeding until July 9, 2014; therefore it is
time-barred.
That petitioner allegedly made numerous requests to the NYCTA for back
pay, the most recent purportedly on May 30, 2014, is not relevant. "In circumstances
where a party would expect to receive notification of a determination, but has not, the
Statute of Limitations begins to run when the party knows, or should have known, that it
was aggrieved by the determination." (90-92 Wadsworth Avenue Tenants Association
v City of New York Department of Housing Preservation & Development, 227
AD2d 331 [1st Dept 1996].) Petitioner did not receive back pay on September 30, 2013
when he was reinstated and knew at that time that he was aggrieved by this
determination. Petitioner's only legal recourse would have been a timely Article 78
proceeding, as there were no other administrative remedies to exhaust once he was
reinstated on September 30, 2013. An attempt to negotiate with an agency, after a final
administrative determination, does not toll or extend the period of limitation. (See
Matter of Lubin v Board of Educ. Of City of NY, 60 NY2d 974, 976 [1983]; Goonewardena v Hunter Coll.,
40 AD3d 443, 443 [1st Dept 2007].)
Petitioner argues that he is not challenging the NYCTA's determination to
terminate his employment or subsequent reinstatement to employment but is seeking to
overturn the NYCTA's "implicit decision, never expressly conveyed to [petitioner], not to
pay him back from April 17 to September 30, 2013." (Reply MOL at 2.) This argument is
anomalous; the notice of petition and petition both state that petitioner is seeking an
order, "[d]eclaring that respondents' discharge of petitioner was arbitrary, capricious, and
violated petitioner's rights secured by New York Civil Service Law § 73. . . ."
Moreover, petitioner's argument lacks merit. Petitioner has no right to back pay until he
first establishes his contention that he was wrongfully terminated and / or refused
reinstatement before September 30, 2013. Petitioner cannot do so, because any
proceeding to establish this contention was time barred before this proceeding was
commenced. (See Matter of Michalak v State of New York Dept. of Labor, 88
AD2d 762, 763 [1st Dept 1982] [finding that Article 78 proceeding was time-barred
where petitioner voluntary reinstated by respondent after leave of absence due to illness
failed to seek back pay within four months of alleged wrongful termination.) The Court
also notes that petitioner was paid for work that he did from September 30, 2013 until his
retirement on February 24, 2014, but he was not paid for work that he did not do from
April 18, 2013 to September 30, 2013. CONCLUSION
Accordingly, it is
hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.
Dated: November 7, 2014
[*4]New York, New York
ENTER:
/s/
J.S.C.