IN RE: Application of Robert C. HUNDERTMARK (1997)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Robert C. HUNDERTMARK, Jr., Petitioner-Appellant, For a Judgment, etc., v. MTA TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, et al., Respondents-Respondents.

Decided: March 11, 1997

Before ELLERIN, J.P., and WALLACH, WILLIAMS and MAZZARELLI, JJ.

Eileen H. Persky, for Petitioner-Appellant. Kevin Nathaniel Fox, and Joseph I. Lauer, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered January 9, 1996, which denied petitioner's application pursuant to CPLR article 78 petition to annul respondents' denial of his request for reinstatement to his former position with respondent MTA and dismissed the petition, unanimously affirmed, without costs.

No triable issue of fact exists that would warrant a hearing pursuant to CPLR 7804(h). The unrefuted documentary evidence establishes excessive and unauthorized absences during petitioner's tenure with the MTA, many of which predated his leave of absence pursuant to the Federal Family and Medical Leave Act and supports respondents' refusal to reinstate him after his voluntary resignation (see, Matter of Frederick v. Civil Service Comm., 175 A.D.2d 428, 429, 572 N.Y.S.2d 116; Matter of Watts v. New York City Tr. Auth., 213 A.D.2d 253, 624 N.Y.S.2d 124).

MEMORANDUM DECISION.

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