Smith v. New York State Department of Labor , 760 N.Y.S.2d 370 ( 2003 )

—Spain, J.

Appeal from a judgment of the Supreme Court (Canfield, J.), entered May 2, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

In May 2001, pursuant to Civil Service Law § 72 (5), petitioner was placed on involuntary leave by her employer respondent Department of Labor (hereinafter the Department). In December 2001, petitioner commenced this CPLR article 78 proceeding alleging that she has been denied a hearing and seeking reinstatement to the payroll, together with restoration of back pay and benefits lost as the result of her involuntary leave. Respondents moved to dismiss the petition on the basis that, among other things, petitioner failed to exhaust her administrative remedies. Supreme Court granted respondents’ motion to dismiss on the ground that petitioner’s request for a Civil Service Law § 72 (1) hearing was untimely. Petitioner appeals.

While this appeal was pending, the Attorney General informed this Court that the Department has reconsidered its position and agreed to provide petitioner with a hearing pursuant to Civil Service Law § 72 (1) and (5), to be scheduled as soon as possible. The claimed procedural infirmity cited by petitioner having been cured, this proceeding is moot. Thus, we will not address the merits of Supreme Court’s decision. Petitioner’s requests for reinstatement and restoration of back pay and benefits are premature as her administrative remedies have not been exhausted (see Matter of House v New York State Off. of Mental Health, 262 AD2d 929, 929-930 [1999]). Petitioner is not entitled to this additional relief in advance of a final determination that she was not unfit to perform her duties during the period of her involuntary leave (see Civil Service Law § 72 [1], [5]; Matter of Lamb v New York State Off. of Mental Health, 162 AD2d 758, 759-670 [1990]; see also Matter of House v New York State Off. of Mental Health, supra at 929-930; Matter of Gaines v New York State Div. for Youth, 213 AD2d 894, 896-897 [1995], lv denied 86 NY2d 708 [1995]).

Cardona, P.J., Mercure, Rose and Kane, JJ. Ordered that the appeal is dismissed, as moot, without costs. [See 191 Misc 2d 195.]