DECISION AND ORDER The facts of this matter are set forth in prior decisions of this Court and will not be repeated at length (70 Misc 3d 1221[A], 2021 NY Slip Op 50172[U]; 68 Misc 3d 1205[A], 2019 NY Slip Op 51057[U] [Sup Ct, Warren County 2109]). As relevant here, plaintiff was injured on August 9, 2010 in the course of his employment as a motor equipment operator with defendant’s Highway Department and was unable to return to work as a result. On July 11, 2011, Greg Brown — defendant’s Highway Superintendent — sent correspondence to plaintiff which stated, in pertinent part: “A meeting has been scheduled in my office for Tues. Aug. 9, 2011 at 9:00 AM. Your presence at the meeting is required and will afford you the opportunity to present proof of your ability to return to work without conditions and to perform all the essential duties of your job immediately. If you fail to attend this meeting or demonstrate your ability to return to work, I will consider your employment with the Town of Hartford Highway Dept. terminated as of Weds. Aug. 10, 2011.” This correspondence was sent pursuant to Civil Service Law §71, which provides as follows: “Where an employee has been separated from…service by reason of a disability resulting from occupational injury…, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position…. Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years. In the event that such person is reinstated to a position in a grade lower than that of his or her former position, his or her name shall be placed on the preferred eligible list for his or her former position or any similar position.” The meeting was held as scheduled on August 9, 2011 — with Brown finding that plaintiff failed to make the requisite demonstration — and plaintiff’s employment was terminated on August 10, 2011. Plaintiff commenced this action on April 2, 2012, alleging five causes of action: (1) that his employment was wrongfully terminated; (2) that defendant breached the collective bargaining agreement governing his employment; (3) that defendant owes him certain compensation and benefits under the terms of this collective bargaining agreement and its Employee Manual; (4) that defendant violated Civil Service Law §71; and (5) that defendant violated 42 USC §1983. Issue was joined with the filing of an answer on July 20, 2012. Discovery and depositions were subsequently completed, and, on August 31, 2018, plaintiff filed the note of issue and certificate of readiness. On October 25, 2018 plaintiff filed a motion for summary judgment on liability with respect to his first, fourth and fifth causes of action and, on November 16, 2018, defendant filed a motion for summary judgment seeking to dismiss the complaint. By Decision and Order dated June 20, 2019, plaintiff’s motion was denied in its entirety and defendant’s motion was granted to the extent that plaintiff’s second and third causes of action were dismissed, and the motion was otherwise denied (2019 NY Slip Op 51017[U], at *6). A nonjury trial began on February 20, 2020, with the trial to continue following the deposition of plaintiff’s treating physician. The COVID-19 pandemic struck weeks later, and the deposition was postponed. Plaintiff then filed a motion in limine seeking, inter alia, an Order precluding defendant from offering certain evidence at trial, and defendant filed a motion for leave to amend its answer to assert an affirmative statute of limitations defense. By Decision and Order dated March 5, 2021, plaintiff’s motion in limine was denied and defendant’s motion to amend was granted (2021 NY Slip Op 50172[U], at *4). In granting the motion to amend, the Court stated as follows: “[D]efendant is correct that a challenge to a determination under Civil Service Law §71 ‘must take the form of a CPLR article 78 petition’ (Lazzari v. Town of Eastchester, 20 NY3d 214, 219 [2012]). As such, there is no doubt as to the merit of the proposed amendment and as much was conceded by plaintiff during oral argument. That being said, defendant waited over eight years to amend its answer to assert this statute of limitations defense, with plaintiff contending that he will now suffer prejudice if the amendment is permitted. Specifically, plaintiff contends that ‘the parties are beyond the eve of trial,’ with each having invested substantial time and resources in the case. “While this argument is compelling, it is nonetheless problematic. In Disla v. Biggs (___ AD3d ___, 2021 NY Slip Op 00906 [2021]), the Appellate Division addressed a similar argument, stating as follows: ‘The motion court providently exercised its discretion in allowing the City to amend its answer to assert a statute of limitations defense with respect to [plaintiff's] conscious pain and suffering claim and in dismissing [the] claim on [that] basis. [Plaintiff] does not dispute that the defense has merit. Although [defendant] waited nearly six years after commencement of [the] action to move to amend its answer, this delay in seeking to amend a pleading is not dispositive, as plaintiff failed to establish prejudice resulting therefrom. Although the parties have already completed extensive discovery and litigated a summary judgment motion, they would have done so even if the statute of limitations defense had been raised earlier, as the defense affects only one of plaintiff’s claims (for conscious pain and suffering) and his remaining claim (for wrongful death) is based on the same underlying facts’ (id. at *2-3 [citations omitted]). “The same rationale applies here. Although the parties have completed discovery and litigated summary judgment motions, they would have done so even if the statute of limitations defense had been raised earlier, as the defense affects only plaintiff’s claims pursuant to Civil Service Law §71. Indeed, plaintiff’s second and third causes of action — which were dismissed in June 2019 — alleged breach of contract, and his fifth cause of action — which remains — alleges a violation of 42 USC §1983. All of these causes of action are based on the same underlying facts. Plaintiff has thus failed to establish the requisite prejudice” (see id. at *3; compare Cseh v. New York City Tr. Auth., 240 AD2d 270, 271-272 [1997])” (2021 NY Slip Op 50172, at *3). A conference was subsequently held on May 8, 2021, at which time defendant was granted permission to file a second dispositive motion. Presently before the Court is (1) defendant’s motion for dismissal of the remaining causes of action; and (2) plaintiff’s cross motion to convert the remaining causes of action to a CPLR article 78 proceeding. Turning first to the motion, defendant contends that the remaining causes of action — namely, the first, fourth, and fifth — are barred by the applicable statute of limitations and, as such, must be dismissed (see CPLR 3211 [a] [5]). More specifically, defendant contends that these causes of action had to be brought in the context of a CPLR article 78 proceeding, which has a four-month statute of limitations (see CPLR 217). According to defendant, because plaintiff’s employment was terminated on August 10, 2011, a proceeding had to be commenced by December 10, 2011 — approximately four months prior to commencement of the action. In opposition, plaintiff contends that the statute of limitations did not begin to run when his employment was terminated on August 10, 2011. More specifically, plaintiff contends that his counsel sent correspondence to defendant’s Town Supervisor on March 26, 2012 requesting a medical examination in accordance with Civil Service Law §71. Counsel for defendant then responded on April 16, 2012, stating as follows: “I write…relative to your most recent correspondence to [defendant] seeking an IME of [plaintiff.] While [defendant] would be happy to schedule the IME, as you may recall one of the issues with [plaintiff] was that [defendant] has been provided with relatively limited information concerning his injury and treatment. If you would kindly provide me with authorizations for all of [plaintiff's] treating physicians, including any IME doctors, we will then contact you to schedule the IME.” Counsel for plaintiff provided the requested authorizations on May 1, 2012 and, on December 19, 2012, counsel for defendant sent correspondence advising that his client “was willing to put [plaintiff] on the preferred list if [he] was cleared for full duty following an IME,” and inquired whether this resolution was of any interest to plaintiff. It clearly was not, as the parties have engaged in extensive litigation since that time. In any event, because a medical examination was never scheduled, plaintiff contends that the statute of limitations never began to run. At the outset, the Court finds that plaintiff’s first and fourth and causes of action — both of which allege violations of Civil Service Law §71 — should have been brought in the context of a CPLR article 78 proceeding (see Lazzari v. Town of Eastchester, 20 NY3d 214, 219 [2012]) and, as such, a four-month statute of limitations applies (see CPLR 217). Insofar as plaintiff’s fifth cause of action is concerned, “‘[r]egardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply’” (Doe v. State Univ. of N.Y., Binghamton Univ., 201 AD3d 1075, 1076 [2022], quoting Schulz v. Town Bd. of the Town of Queensbury, 178 AD3d 85, 89 [2019] [emphasis added; citations omitted], appeal dismissed 34 NY3d 1177 [2020], lv denied 35 NY3d 1080 [2020], cert denied 593 US —, 141 S Ct 2513 [2021]; see Lakeview Outlets Inc. v. Town of Malta, 166 AD3d 1445, 1447 [2018]; Thrun v. Cuomo, 112 AD3d 1038, 1040 [2013], lv denied 22 NY3d 865 [2014]). Here, there is no question that the 42 USC §1983 claim is based upon alleged violations of Civil Service Law §71. It could therefore have been addressed in the context of a CPLR article 78 proceeding and is also subject to a four-month statute of limitations (see Doe v. State Univ. of N.Y., Binghamton Univ., 201 AD3d at 1077). The Court further finds that the statute of limitations relative to the remaining causes of action began to run on August 10, 2011, when plaintiff’s employment was terminated. In this regard, “‘a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner’” (Smith v. State of New York, 201 AD3d 1225, 1228 [2022], quoting CPLR 217 [1]; see Matter of Sunco Holding Corp. v. Town of Vestal, 204 AD3d 1143, ___, 2022 NY Slip Op 02326, *2 [2022]). “To constitute a final and binding determination, the determination must have ‘impact upon the petitioner who is thereby aggrieved’” (Smith v. State of New York, 201 AD3d at 1228, quoting Matter of Edmead v. McGuire, 67 NY2d 714, 716 [1986] [internal quotation marks and citation omitted]; see Matter of 101CO, LLC v. New York State Dept. of Envtl. Conservation, 169 AD3d 1307, 1308-1309 [2019], lv dismissed 34 NY3d 1010 [2019]). “‘When making the determination as to whether an agency determination is final, courts must consider the completeness of the administrative action and make a pragmatic evaluation as to whether a position has been reached that inflicts an actual, concrete injury’” (Smith v. State of New York, 201 AD3d at 1228, quoting Matter of Capital Dist. Regional Off-Track Betting Corp. v. New York State Racing & Wagering Bd., 97 AD3d 1044, 1046 [2012] [citations omitted]). Here, the July 11, 2011 correspondence sent by Brown clearly states that — if plaintiff failed to demonstrate his ability to return to work immediately without conditions at the August 9, 2011 meeting — his “employment with the Town of Hartford Highway Dept. [would be] terminated as of Weds. Aug. 10, 2011.” Indeed, this is precisely what transpired. Plaintiff failed to make the requisite demonstration and his employment was terminated on August 10, 2011. Under the circumstances, there is no question that this decision was final and binding upon him on August 10, 2011. Insofar as plaintiff alleges that the statute of limitations was extended because of defendant’s failure to schedule a medical examination, the Court is not persuaded. The termination of plaintiff’s employment with the Town was final on August 10, 2011, regardless of whether he subsequently applied for a medical examination. Indeed, while this application could potentially have led to “reinstate[ment] to his…former position” (Civil Service Law §71), his employment was nonetheless terminated as of August 10. Moreover, as the Court previously found in its June 2019 Decision and Order, plaintiff failed to submit his application for a medical examination to the appropriate municipal commission. Civil Service Law’ 2 (4) defines a “municipal commission” as “the civil service commission of a city, of a county, or of a suburban town governed pursuant to [Town Law article 3-A] and having a population of at least fifty thousand…, or the personnel officer of a city, of a county, or of such a suburban town….” To the extent that defendant is not a suburban town, as referenced in Civil Service Law’ 2 (4), plaintiff=s application for a medical examination under Civil Service Law’ 71 had to be directed to the Washington County Personnel Officer (see Civil Service Law §2 [4]). Counsel for plaintiff, however, sent his March 26, 2012 request for an examination to defendant’s Town Supervisor (see Matter of Armetta v. Town of Bethel, 265 AD2d 789, 791 [1999]). Turning now to plaintiff’s cross motion, “[a]lthough courts generally possess the authority to convert a plenary action to a CPLR article 78 proceeding if jurisdiction of the parties has been obtained, conversion is not appropriate where the claims are barred by the four-month statute of limitations governing CPLR article 78 proceedings” (Meisner v. Hamilton, Fulton, Montgomery Bd. of Coop. Educ. Servs., 175 AD3d 1653, 1655 [2019] [citations omitted]; see Doe v. State Univ. of New York, Binghamton Univ., 201 AD3d 1075, 1077 [2022]). To the extent that plaintiff commenced this action more than four months after August 10, 2011, the remaining causes of action cannot be converted to a CPLR article 78 proceeding. These causes of action are time-barred and must be dismissed. Based upon the foregoing, defendant’s motion to dismiss plaintiff’s remaining causes of action is granted in its entirety and plaintiff’s cross motion is denied. Therefore, having considered the Affirmation of John D. Aspland, Jr., Esq. with exhibits attached thereto, dated July 8, 2021, submitted in support of the motion; Memorandum of Law of John D. Aspland, Esq., dated July 8, 2021, submitted in support of the motion; Affidavit of William J. White, Esq. with exhibits attached thereto, sworn to September 30, 2021, submitted in opposition to the motion and in support of the cross motion; Memorandum of Law of William J. White, Esq., dated September 30, 2021, submitted in opposition to the motion and in support of the cross motion; Affirmation of John D. Aspland, Jr., Esq., dated October 22, 2021, submitted in opposition to the cross motion and in further support of the motion; and Memorandum of Law of John D. Aspland, Esq., dated October 25, 2021, submitted in opposition to the cross motion and in further support of the motion, and oral argument having been held on May 23, 2022 with William J. White, Esq. appearing on behalf of plaintiff and John D. Aspland, Jr., Esq. appearing on behalf of defendant, it is hereby ORDERED that defendant’s motion to dismiss plaintiff’s remaining causes of action is granted; and it is further ORDERED that plaintiff’s cross motion to convert his remaining causes of action to a CPLR article 78 proceeding is denied. The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated July 8, 2021, the Notice of Cross Motion dated September 30, 2021, and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513. Dated: May 27, 2022
