Carson v. NEW YORK CITY DEPARTMENT OF SANITATION

• Decision Date: 27 April 2000
• Citation: 271 A.D.2d 380,707 N.Y.S.2d 93
• Parties: CALVIN CARSON, Appellant,<BR>v.<BR>NEW YORK CITY DEPARTMENT OF SANITATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 380

707 N.Y.S.2d 93

CALVIN CARSON, Appellant,

v.NEW YORK CITY DEPARTMENT OF SANITATION et al., Respondents.

Decided April 27, 2000.

Concur — Mazzarelli, J. P., Ellerin, Lerner, Rubin and Andrias, JJ.

Petitioner's action for breach of contract and promissory estoppel was properly converted into a proceeding pursuant to CPLR article 78, since the complaint filed by petitioner effectively sought petitioner's reinstatement to his former position as a DOS employee, and respondents had the statutory and regulatory authority to issue a final and binding determination with respect to this employment (cf., Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1). Also proper was the ensuing dismissal of petitioner's application pursuant to CPLR article 78. In this connection, petitioner's claim of promissory estoppel is without merit, for even if a DOS employee had promised petitioner reinstatement upon his completion of a drug treatment program, the promise was unauthorized and DOS was not bound by it (Granada Bldgs. v City of Kingston, 58 NY2d 705, 708), particularly in light of petitioner's prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee. Finally, we note that, even if the instant petition possessed merit, it would have been properly dismissed as time-barred since it was filed more than four months subsequent to issuance of the challenged determination (see, CPLR 217 [1]).