CARSON v. NEW YORK CITY DEPARTMENT OF SANITATION

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

Calvin CARSON, Plaintiff-Appellant, v. The NEW YORK CITY DEPARTMENT OF SANITATION, et al., Defendants-Respondents.

Decided: April 27, 2000

MAZZARELLI, J.P., ELLERIN, LERNER, RUBIN and ANDRIAS, JJ. Nathaniel B. Smith, for Plaintiff-Appellant. Helen P. Brown, for Defendants-Respondents.

Order, Supreme Court, New York County (Barry Cozier, J.), entered September 23, 1998, which, to the extent appealed from, granted defendant-respondent's motion to convert petitioner's breach of contract action into an article 78 proceeding, and order, same court (Beverly Cohen, J.), entered March 16, 1999, which dismissed the ensuing CPLR article 78 petition seeking to, inter alia, annul respondent's determination terminating petitioner from his position as a New York City Department of Sanitation (DOS) employee, unanimously affirmed, without costs.

 Petitioner's action for breach of contract and promissory estoppel was properly converted into a proceeding pursuant to CPLR article 78, since the complaint filed by petitioner effectively sought petitioner's reinstatement to his former position as a DOS employee, and respondents had the statutory and regulatory authority to issue a final and binding determination with respect to this employment (cf., Abiele Contr., Inc. v. New York City School Constr. Auth., 91 N.Y.2d 1, 666 N.Y.S.2d 970, 689 N.E.2d 864).   Also proper was the ensuing dismissal of petitioner's application pursuant to CPLR article 78.   In this connection, petitioner's claim of promissory estoppel is without merit, for even if a DOS employee had promised petitioner reinstatement upon his completion of a drug treatment program, the promise was unauthorized and DOS was not bound by it (Granada Bldgs., Inc. v. City of Kingston, 58 N.Y.2d 705, 708, 458 N.Y.S.2d 906, 444 N.E.2d 1325), particularly in light of petitioner's prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee.   Finally, we note that, even if the instant petition possessed merit, it would have been properly dismissed as time-barred since it was filed more than four months subsequent to issuance of the challenged determination (see, CPLR 217[1] ).

MEMORANDUM DECISION.