Walsh v. New York State Thruway Authority
| Decision Date | 27 December 2005 |
| Docket Number | 2004-11177. |
| Citation | 24 A.D.3d 755,808 N.Y.S.2d 710,2005 NY Slip Op 10117 |
| Parties | DAVID WALSH, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is denied, the cross motion is granted, the action is converted into a CPLR article 78 proceeding, the complaint is converted into a petition, and the proceeding is dismissed.
The plaintiff, David Walsh, was employed by the defendant, New York State Thruway Authority (hereinafter the Authority) in December 2003 when he was charged with numerous disciplinary violations. In settlement of those charges, he entered into a stipulation wherein he agreed to a one-year period of probation, during which the Authority would have the discretion to discharge him for any similar misconduct, in the manner provided for probationary terminations under the Civil Service Law. In February 2004 the plaintiff was charged with similar violations and was discharged without a hearing pursuant to the stipulation. The plaintiff then commenced this action against the Authority in the Supreme Court, inter alia, to recover damages for breach of contract and to reinstate him to his former position as an employee of the Authority with back pay. The Supreme Court granted the Authority's motion to dismiss pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction and denied the plaintiff's cross motion to convert the action to a proceeding pursuant to CPLR article 78.
The Supreme Court erred in declining to convert the plaintiff's action to a CPLR article 78 proceeding. "[T]he courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, making whatever order is necessary for its prosecution" (Matter of First Natl. City Bank v. City of N.Y. Fin. Admin., 36 NY2d 87, 94 [1975]; see Town of Fishkill v. Royal Dutchess Props., 231 AD2d 511 [1996]; CPLR 103 [c]). Here, the plaintiff alleged in his complaint that he was terminated without a hearing in violation of his rights under the Civil Service Law and sought reinstatement to his former position with back pay. Moreover, it is undisputed that the Authority had the statutory authority to issue a final and binding determination with respect to his employment (see Carson v. New York City Dept. of Sanitation, 271 AD2d 380 [2000]). Thus, this case is clearly within the purview of a CPLR article 78 proceeding, the proper procedural vehicle for reviewing such a termination and, as the necessary parties are before the court, we convert the action to a CPLR article 78 proceeding pursuant to CPLR 103 (c) (see Di Lorenzo v. Carey, 62 AD2d 583, 590 [1978], cert denied 440 US 914 [1979]; cf. Gomez v. Bobker...
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