1 No. 125
In the Matter of Edward P. Johnson,
Respondent,
v.
Triborough Bridge & Tunnel Authority,
Respondent, and New York City Civil Service Commission,
Appellant.
_________________________________________________________________
2001 NY Int. 111
October 23, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Julian L. Kalkstein, for appellant.
Ronald J. Stone, for individual respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs,
and the petition dismissed.
Petitioner began working for defendant Triborough Bridge & Tunnel
Authority (TBTA) in January 1984 and, one year later, became a
permanent employee. On January 15, 1989, petitioner was involved in an
after-hours altercation during which his service revolver discharged,
resulting in disciplinary charges against him.
On April 12, 1989, petitioner agreed to a settlement of the charges by
signing a "Waiver of Section 75 Hearing and Acceptance of Recommended
Penalty" in which he (1) waived his right to a disciplinary hearing
and appeal authorized by sections 75 and 76 of the Civil Service Law;
and, (2) agreed to a probationary period of 12 months "exclud(ing) all
time during which he was not on duty." During the probationary period,
the TBTA, in its sole discretion, could dismiss petitioner for any new
violation of its rules or regulations. These provisions would be
automatically abrogated following the 12-month probationary period.
Five months after commencement of the probationary period, petitioner
was injured while on duty and was absent from work from August 19,
1989 until October 1996. In June 1997, following allegations that he
had abandoned his post without authorization, petitioner was dismissed
SNIPPETS:
In the Matter of Edward P. Johnson, Respondent, v. Triborough Bridge & Tunnel Authority,
This memorandum is uncorrected and subject to revision before publication in the New York
Julian L. Kalkstein, for appellant.
Petitioner began working for defendant Triborough Bridge & Tunnel Authority (TBTA) in January
On January 15, 1989, petitioner was involved in an after-hours altercation during which his
On April 12, 1989, petitioner agreed to a settlement of the charges by signing a "Waiver of
During the probationary period, the TBTA, in its sole discretion, could dismiss petitioner
Five months after commencement of the probationary period, petitioner was injured while on
Instead, in July 1997, he appealed his termination to the Civil Service Commissioner, arguing
Petitioner argued that his probationary period should be calculated in calendar days while
The TBTA further contended that the Commission lacked jurisdiction to hear the appeal because
Petitioner commenced this proceeding pursuant to CPLR article 78.
Supreme Court vacated the determination of the Commission and remanded the matter to the
We now reverse.
Section 76 of the Civil Service Law solely authorizes the Commission to hear appeals from
Here, there was no such proceeding and the Commission therefore had no jurisdiction to hear
He cannot reassert his contentions by appealing to the Commission because its jurisdiction is
CPLR 7803 authorizes a review of an agency determination that was "made in violation of
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