IN RE: Application of Cedric T. ROBERSON (2000)

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered on or about December 30, 1999, dismissing, as untimely, a CPLR article 78 proceeding to annul respondents' termination of petitioner's employment as a police officer, unanimously affirmed, without costs.

In the instant proceeding, brought in 1999, 11 years after petitioner's 1988 automatic termination as a police officer upon his misdemeanor conviction of menacing in the third degree, petitioner claims that he was entitled to a pretermination hearing as announced in Matter of Foley v. Bratton, 92 N.Y.2d 781, 686 N.Y.S.2d 359, 709 N.E.2d 100 (1999).   The proceeding is barred by laches (see, Austin v. Board of Higher Educ., 5 N.Y.2d 430, 442, 186 N.Y.S.2d 1, 158 N.E.2d 681).   Accepting petitioner's assertion that in the years following his conviction the Police Department did not respond to his numerous inquiries to confirm or deny his termination, he admittedly discovered the “Final Order of Dismissal” by happenstance in 1991 or 1992, at which point he could no longer reasonably continue to doubt his terminated status with the Police Department.   It is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur.   Thus, some three years of inexcusable delay passed before the Fire Department, in 1995, rejected petitioner's employment application upon a report from the Police Department indicating different criminal “charges” as the reason for petitioner's termination, thereby creating confusion.   However, once again, petitioner did nothing, until 1997, when he brought a Freedom of Information Law proceeding seeking production of the order of termination, a two-year delay that was also unreasonable.

MEMORANDUM DECISION.