IN RE: LOCAL 621 (2026)

Judgment (denominated an order), Supreme Court, Bronx County (Kim Adair Wilson, J.), entered January 22, 2026, to the extent appealed from as limited by the briefs, granting the petition brought pursuant to CPLR article 78, denying the cross-motion to dismiss, and annulling the December 6, 2023 determination of respondent New York City Department of Correction (DOC) substantiating an EEO complaint against petitioner Jose Cortez as taken in violation of lawful procedure, awarded petitioners costs and attorneys' fees, and, to the extent cross-appealed from, denied so much of the petition that sought compensatory and punitive damages, unanimously modified, on the law, to deny petitioners' request for costs and attorneys' fees, and otherwise affirmed, without costs.  Appeal from order, same court and Justice, entered May 27, 2026, which, upon considering the merits of the DOC's motion for leave to reargue the award of costs and attorneys' fees, adhered to the prior determination, unanimously dismissed, without costs, as academic.

Supreme Court properly denied compensatory and punitive damages, which are not incidental to the relief sought under the circumstances (CPLR 7806;  see Metropolitan Taxicab Bd. of Trade v New York City Taxi & Limousine Commn., 115 AD3d 521, 522 [1st Dept 2014], lv denied 24 NY3d 911 [2014] ).  Petitioners' argument on appeal that Supreme Court found, summarily, a violation of federal due process under 42 USC § 1983 is belied by the record.  Petitioners' CPLR article 78 petition alleged that the DOC failed to provide a hearing as required by Civil Service Law § 75(1), that the determination was arbitrary and capricious, and that Cortez suffered reputational harm, lost opportunities, and emotional distress.

That separate rules of procedure apply in a hybrid action is of no moment (see Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 231 AD3d 549, 550 [1st Dept 2024] ), because the petition did not clearly assert any plenary causes of action (cf. Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78, 80–83 [1st Dept 2019], lv dismissed 35 NY3d 1106 [2020] [the petitioners separately pleaded City and State HRL claims] ).  Additionally, petitioners' submissions before Supreme Court, including their opposition to the DOC's cross-motion to dismiss, requested full summary disposition without allowing the DOC to submit an answer (see CPLR 7804[f] ).  This is precisely what happened, as Supreme Court found a violation of the Civil Service Law and entered judgment accordingly.  Therefore, contrary to petitioners' contention, Supreme Court did not “employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages” (Matter of Alltow, Inc. v Village of Wappingers Falls, 94 AD3d 879, 882 [2d Dept 2012] ).

Supreme Court, however, improperly granted costs and attorneys' fees, which are not authorized by agreement, statute, or court rule (see Matter of Dechbery v Cassano, 157 AD3d 499, 500 [1st Dept 2018];  CPLR 7806).  Petitioners' reliance on 42 USC § 1988 is misplaced, as they did not assert a substantial federal constitutional claim (see Matter of Dechberry, 157 AD3d at 500), let alone satisfy their “obligation to pursue [any] federal constitutional claims and, at the very least, put those claims before the court” (Jiggets v Dowling, 3 AD3d 326, 329 [1st Dept 2004], lv denied 3 NY3d 603 [2004] ).  Instead, petitioners raised the federal statutes only in opposition to the DOC's motion to reargue.

We have considered the remaining contentions and find them unavailing.