GOREY v. BOARD OF EDUCATION OF CITY OF BUFFALO (1997)

 Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   The record establishes that plaintiff served a summons and complaint on defendants more than three years after the effective date of the resolution of defendant Municipal Civil Service Commission of the City of Buffalo (Commission) that designated his position as “confidential or policy influencing” pursuant to Civil Service Law § 42(2-a).   Plaintiff alleges that the reclassification of his position was unlawful because defendants failed to provide him with notice of the proposed “reclassification”;  he seeks to annul that reclassification and to mandate defendants to reinstate him.   The complaint is time-barred because that relief could have been sought in a CPLR article 78 proceeding, and this action was not brought within the four-month Statute of Limitations applicable to CPLR article 78 proceedings (see, CPLR 217[1];  Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 202-203, 518 N.Y.S.2d 943, 512 N.E.2d 526;  Solnick v. Whalen, 49 N.Y.2d 224, 229-233, 425 N.Y.S.2d 68, 401 N.E.2d 190).   In any event, plaintiff was not entitled to prior notice of the proposed resolution because the Commission did not reclassify his position (see, Civil Service Law § 20;  Classified Rules of Civil Service Commission, Rule 7).

We further conclude that plaintiff has failed to establish that he had a constitutionally protected property right to continued employment that required defendants to afford him procedural due process before termination (see, Bykofsky v. Hess, 107 A.D.2d 779, 781-782, 484 N.Y.S.2d 839, affd.65 N.Y.2d 730, 492 N.Y.S.2d 29, 481 N.E.2d 569, cert. denied 474 U.S. 995, 106 S.Ct. 408, 88 L.Ed.2d 358;  Matter of Carter v. Murphy, 80 A.D.2d 960, 437 N.Y.S.2d 344).

We have reviewed plaintiff's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed without costs.

MEMORANDUM: