Hibbert v. New York City Transit Authority
| Decision Date | 20 November 1967 |
| Citation | 28 A.D.2d 1139,284 N.Y.S.2d 717 |
| Parties | In the Matter of Lally B. HIBBERT, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before BRENNAN, Acting P.J., and RABIN, HOPKINS, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review 'the determination of the respondent and the City Civil Service Commission removing Petitioner from his position as Railroad Porter' and for related relief, petitioner appeals from a judgment of the Supreme Court, Kings County, dated November 3, 1966, which dismissed the petition for insufficiency as a matter of law.
Judgment affirmed, without costs.
In May 1963, petitioner was convicted of a violation of the Universal Military Training and Service Act (62 Stat. 622; U.S.C.A., tit. 50 App., § 462, subd. (a)), on his plea of guilty, and was sentenced to a prison term of two years. The violation was that petitioner, who had been classified as a conscientious objector, refused an order to perform certain civilian work on the ground that he was a minister of Jehovah's Witnesses and that his religion forbade him to do such work. While incarcerated he was dismissed from his position by the Authority. However, after his release he was given a hearing, following which the dismissal was ratified by the Authority on April 14, 1965, effective as of the date of the original dismissal, February 26, 1964. It is stated in the report of respondent's Hearing Referee, which was approved by respondent, that petitioner 'was not dismissed from the service because of refusal to serve his country' but 'because, as a result of an act of his own volition, the Transit Authority was deprived of his services during the extended period of his imprisonment.' Petitioner appealed from the 1965 order of discharge to the Civil Service Commission of the City of New York, as permitted by section 76 of the Civil Service Law, and on April 26, 1966 the Commission affirmed the dismissal. This proceeding, against the Transit Authority only, was commenced on July 22, 1966.
The petition was dismissed on respondent's motion, the court at Special Term holding that (1) the proceeding was barred under CPLR 217 because more than four months had elapsed from the date respondent's determination became effective to the date of the commencement of the proceeding; (2) the proceeding was also barred under section 76 of the Civil Service Law becau...
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