RAYKOWSKI v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION (1999)

Order, Supreme Court, New York County (Robert Lippmann, J.), entered July 22, 1998, which dismissed this proceeding for article 78 and other relief, unanimously modified, on the law and as a matter of discretion, to convert petitioner's civil rights claim, originally asserted within the proceeding pursuant to CPLR article 78, into a plenary action and to remand it as such for further proceedings, and otherwise affirmed, without costs.

 To the extent that the petition asserted claims for relief obtainable pursuant to CPLR article 78, it was properly dismissed as time-barred.   Petitioner's request for reconsideration of the administrative determination terminating his employment did not extend the applicable four-month limitation period (Matter of DeMilio v. Borghard, 55 N.Y.2d 216, 220, 448 N.Y.S.2d 441, 433 N.E.2d 506;  Matter of Bonar v. Shaffer, 140 A.D.2d 153, 156, 527 N.Y.S.2d 412, lv. denied 73 N.Y.2d 702, 537 N.Y.S.2d 490, 534 N.E.2d 328).   Nor did the meeting held in December 1997, eight months after petitioner's termination, constitute the sort of “fresh, complete and unlimited examination on the merits” (Matter of Camperlengo v. State Liquor Auth., 16 A.D.2d 342, 344, 228 N.Y.S.2d 115) as would suffice to revive the Statute of Limitations (see, Matter of Davis v. Kingsbury, 30 A.D.2d 944, 945, 293 N.Y.S.2d 997, affd. 27 N.Y.2d 567, 313 N.Y.S.2d 390, 261 N.E.2d 393).

 Petitioner's claim for a declaratory judgment was also properly dismissed as barred by the four-month limitation period since the underlying dispute-whether an employee who is terminated for failing to maintain a city residence is entitled to the procedural protections of the Civil Service Law-may be resolved through an article 78 proceeding (see, Solnick v. Whalen, 49 N.Y.2d 224, 425 N.Y.S.2d 68, 401 N.E.2d 190).

 However, since, as the parties agree, petitioner's remaining claim, for violation of his civil rights (42 U.S.C. § 1983), is not properly disposed of as an incident (see, CPLR 7806) of his article 78 claims, and the claim is not precluded by the existence of a State statutory remedy for the asserted wrong (see, 423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474, 487, 510 N.Y.S.2d 507, 503 N.E.2d 63, cert. denied and appeal dismissed 481 U.S. 1008, 107 S.Ct. 1880, 95 L.Ed.2d 488), the claim should not have been dismissed, but should have been permitted, albeit in the form of a plenary action, and we modify accordingly (see, CPLR 103[c];  People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194).

MEMORANDUM DECISION.