Matter of Giardina v. New York City Health & Hosps. Corp. ( 2016 )

Matter of Giardina v New York City Health & Hosps. Corp. (2016 NY Slip Op 01402)

Matter of Giardina v New York City Health & Hosps. Corp.

2016 NY Slip Op 01402

Decided on February 25, 2016

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 February 25, 2016
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

319 100201/14

[*1]In re Antonio Giardina, Petitioner-Appellant,

v

New York City Health & Hospitals Corp., et al., Respondents-Respondents.

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 16, 2014, denying the petition to annul respondents' determination, dated July 7, 2011, which abolished petitioner's City Laborer position effective July 8, 2011, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination was rationally based in the record and not arbitrary and capricious (see Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425 [1st Dept 2007], affd 11 NY3d 859 [2008]). Following his layoff, petitioner's union challenged the way respondents calculated the retention date of City Laborers, including petitioner. On behalf of affected Laborers, including petitioner, the union entered into a stipulation of settlement, which petitioner personally ratified, that advanced his retention date by more than nine years and moved him from No. 49 to No. 23 on the preferred list, i.e., the list of laid-off Laborers, in order of seniority, that determined the order of any reinstatements. During petitioner's time on the list, only two vacancies occurred, and they were filled by Laborers senior to him. Petitioner does not identify any Laborer who should have been displaced by him on the list or any vacancy that occurred that he could have filled.

To the extent petitioner seeks in this proceeding to revisit the terms of the settlement agreement, his challenge is untimely under the applicable four-month limitations period (see CPLR 217[1]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 25, 2016

CLERK