STEVENSON v. CITY OF ROME (1997)

 Although Supreme Court properly granted defendants' motion to dismiss the complaint, it should have done so pursuant to CPLR 3211(c), rather than CPLR 3211(a)(7).   Defendants established that the City of Rome had withdrawn its decision to reduce the position held by plaintiff to part-time and to enforce a residency requirement against plaintiff some five months before this action was commenced, and plaintiff failed to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Because plaintiff has not prevailed in an action or proceeding to enforce a provision of 42 U.S.C. § 1983, he is not entitled to an award of attorney's fees pursuant to 42 U.S.C. § 1988 (see, Johnson v. Blum, 58 N.Y.2d 454, 461 N.Y.S.2d 782, 448 N.E.2d 449;  Matter of Kilafofski v. Blackburne, 201 A.D.2d 564, 565, 609 N.Y.S.2d 819).

 There is no merit to plaintiff's contention that the court lacked power or authority to dismiss the complaint from the bench without the benefit of a transcript and without issuing a written decision.   Oral argument of a motion is not a “proceeding[ ] in [a] cause tried or heard” within the meaning of Judiciary Law § 295.   Thus, no stenographic notes of the argument on the motion were required in the absence of a specific request by counsel.

Plaintiff's remaining arguments are based upon matters dehors the record and are therefore not properly before us (see, Fisk v. Slye, 234 A.D.2d 983, 651 N.Y.S.2d 820;  Block v. Nelson, 71 A.D.2d 509, 511, 423 N.Y.S.2d 34).

Order unanimously affirmed without costs.

MEMORANDUM: