BELLI v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION (2021)

Order, Supreme Court, New York County (Laurence L. Love, J.), entered on or about January 31, 2020, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint fails to state a cause of action for declaratory judgment, as there is no justiciable controversy (CPLR 3001;  see James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401 [1931]).  Plaintiff no longer works for defendant New York City Department of Transportation (DOT), and in any event, he was already granted a conditional leave of absence and reinstatement by defendant New York City Human Resources Administration (HRA).  Further, the declaratory judgment cause of action does not involve present prejudice to plaintiff, but only “hypothetical, contingent[,] or remote” prejudice, since plaintiff does not allege that he was penalized for engaging in actions permitted by HRA policy, or that he is likely to face disciplinary charges for any of those actions (American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, 487 N.Y.S.2d 311, 476 N.E.2d 637 [1985], cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 [1985];  see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]).

The cause of action alleging that DOT unlawfully terminated plaintiff's probationary employment – a decision made by administrative determination – is time-barred.  Plaintiff was fired almost 15 months before bringing this action, and a challenge to an administrative determination on the ground that it is contrary to law is subject to a four-month statute of limitations (see CPLR 217[1], 7803[3]).  Nor does the complaint state a cause of action for unlawful termination, as the allegations themselves demonstrate a good-faith basis for termination due to lateness (see Matter of Duncan v. Kelly, 9 N.Y.3d 1024, 1025, 853 N.Y.S.2d 260, 882 N.E.2d 872 [2008];  Matter of Adelana v. New York City Dept. of Educ., 194 A.D.3d 463, 464, 143 N.Y.S.3d 540 [1st Dept. 2021]).

The cause of action alleging failure of immediate reinstatement by HRA is also time-barred, since plaintiff did not seek a writ of mandamus to compel reinstatement within four months after HRA expressly stated that its decision was delayed, or within four months of reinstatement (see CPLR 217[1], 7803[1];  Matter of Adelana, 194 A.D.3d at 464, 143 N.Y.S.3d 540).  In any event, the claim is moot because plaintiff was reinstated (see Matter of Hearst Corp., 50 N.Y.2d at 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876).

The complaint fails to state a cause of action based on whistleblower retaliation statutes, as it does not identify adverse employment actions caused by plaintiff's alleged complaints about HRA's failure to have a master plumber on staff, or its lack of an exposure prevention plan.  Instead, the complaint identifies disciplinary charges arising from unrelated conduct that resulted in plaintiff agreeing to serve a suspension (see Civil Service Law § 75–b[2][a], [4];  Labor Law § 740[1][e], [2];  Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013]).  Furthermore, plaintiff's settlement of the disciplinary charges “demonstrate[s] an independent basis” for the adverse actions complained of, requiring dismissal of the Civil Service Law claim (see Civil Service Law § 75–b[4];  Matter of Tenenbein v. New York City Dept. of Educ., 178 A.D.3d 510, 510–511, 111 N.Y.S.3d 844 [1st Dept. 2019]).

Plaintiff has abandoned his remaining claims concerning retaliation for union activities and failure to accommodate his disability by failing to brief them on appeal (see e.g. Van Damme v. Gelber, 104 A.D.3d 534, 535, 961 N.Y.S.2d 391 [1st Dept. 2013], lv dismissed 22 N.Y.3d 952, 977 N.Y.S.2d 181, 999 N.E.2d 545 [2013]).

We have considered plaintiff's remaining contentions and find them unavailing.