Shah v. State

• Decision Date: 09 February 1995
• Docket Number: No. 76165,76165
• Citation: 622 N.Y.S.2d 365,212 A.D.2d 876
• Parties: Bhupendra K. SHAH, Appellant, v. STATE of New York, Respondent. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 365

622 N.Y.S.2d 365

212 A.D.2d 876

Bhupendra K. SHAH, Appellant, v. STATE of New York, Respondent. (Claim No. 76165.)

Supreme Court, Appellate Division,

Third Department.

Feb. 9, 1995.

William A. Gerard, Palisades, for appellant.

Dennis C. Vacco, Atty. Gen. (Andrea Oser, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, WHITE, CASEY and YESAWICH, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the Court of Claims (Lyons, J.), entered August 4, 1993, which dismissed the claim.

The instant matter had its genesis in claimant's loss of his job at the Nathan Kline Institute for Psychiatric Research, a facility of the State's Office of Mental Health, in 1983 when his position as a research scientist V, grade 31, with a specialty in biometrics was abolished. A number of unsuccessful legal maneuvers by both claimant and his union ensued.

The instant action was commenced in 1987 with claimant alleging that the State violated the terms of the collective bargaining agreement negotiated with claimant's union in terminating him by failing to lay off scientists in order of seniority regardless of level or specialty. Claimant also alleged that the union breached its duty of fair representation in connection with processing his grievance. The matter was ultimately dismissed on the State's cross motion for summary judgment. The Court of Claims, in a written decision and order dated September 30, 1992, determined that claimant failed to show that the State violated the bargaining agreement as a matter of law and failed to identify any dispute of material fact that would necessitate a trial. Notice thereof was mailed to claimant's counsel on October 26, 1992, which order was never appealed from. Instead, in March 1993, claimant's counsel moved for an order directing the entry of a separate judgment. That motion was granted and, on August 4, 1993, a judgment was entered. It is from the judgment that claimant appeals.

The September 30, 1992 order granting the State's cross motion for summary judgment and dismissing the claim was the final appealable paper in the action. Claimant had 30 days plus five days for mailing to file a notice of appeal from that order (see, CPLR 2103[b][2]; 5513[a]. His failure to file a notice of appeal from that order precludes review of that order on this appeal. A final order may not be reviewed on appeal from a later judgment (see, Crystal v. Manes, 130 A.D.2d 979, 516 N.Y.S.2d 823; Matter of Burke v. Axelrod, 90 A.D.2d 577, 456 N.Y.S.2d 135).

Were we to address the merits, we would also conclude that claimant's lawsuit is without vitality. The Court of Claims correctly determined that the term "title" in the collective bargaining agreement was to be defined by reference to the nature of work, level/grade and specialty, and rejected claimant's unsupported contention that the...