Spillers v. City of New York

Mark K. Spillers, Appellant, against City of New York and Health and Hospital Corp., Respondents. Mark K. Spillers, appellant pro se. Corporation Counsel of the City of New York (Jeremy W. Shweder, Esq.), for respondents. Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered December 17, 2015. The order granted defendants' motion to dismiss the complaint. ORDERED that the order is affirmed, without costs. Plaintiff, a former New York City Health and Hospitals employee who worked at Kings County Hospital Center as a senior rehabilitation counselor, commenced this action to recover compensation for approximately 40 days, which he maintains should have been classified as paid leave rather than unpaid absences. Defendants moved to dismiss the complaint for, among other things, lack of subject matter jurisdiction (CPLR 3211 [a] [2]). Plaintiff opposed defendants' motion. By order entered December 17, 2015, the Civil Court granted defendants' motion, finding that "[t]his Court lacks subject matter jurisdiction." It is well settled that proceedings that compel action by a government agency or challenge the reasonableness or legality of an administrative decision must be brought in Supreme Court as an article 78 proceeding (see Walsh v New York State Thruway Auth., 24 AD3d 755, 756 [2005]; Housing & Dev. Admin. of City of NY v Community Hous. Improvement Program, 90 Misc 2d 813 [1977], affd 59 AD2d 773 [1977]). As plaintiff seeks to challenge the propriety of certain administrative decisions which he maintains improperly classified his absences from his job as unpaid leave rather than paid leave, the proper form for this action was a CPLR article 78 proceeding and the proper forum, the Supreme Court (see CPLR 7801, 7804 [b]; Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 7-8 [1997]; Advanced Refractory Tech. v Power Auth. of State of NY, 81 NY2d 670, 678-679 [1993]; Card v City of New York, 31 Misc 3d 143[A], 2011 NY Slip Op 50872[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Boss Prop. Group, LP v Con Edison, 31 Misc 3d 128[A], 2011 NY Slip Op 50455[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Fuca v City of New York, 15 Misc 3d 86, 87 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Consequently, the Civil Court properly granted defendants' motion to dismiss the complaint for lack of subject matter jurisdiction (see [*2]Walsh v New York State Thruway Auth., 24 AD3d at 756; Card v City of New York, 31 Misc 3d 143[A], 2011 NY Slip Op 50872[U]). Accordingly, the order is affirmed. ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: January 19, 2018