Preview
iD: OUN NK DV INDEX NO. 61138/2023
NYSCEF BOC. NO. 70 RECEIVED NYSCEF: 01/05/2024
BD: AB OUN US
au INDEX NO. 61138/2023
NYSCEF DOE. NO. 20 RECEIVED NYSCEF: 04/05/2024
INDEX NO. 63138/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/05/2024
Supreme Court of the State of Pew Bork
Appellate Division? Second Judicial Bepartment
D69555
Y/htr
AD3d. Argued - March 10, 2022
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
PAUL WOOTEN, JJ.
2019-03102 DECISION & ORDER
In the Matter of Civil Service Employees Association,
Inc., Local 100, AFSCME, AFL-CIO, et al., appellants,
v City of Mount Vernon, et al., respondents.
(Index No. 663787/18) 63791 -1F
Charny & Wheeler P.C., Rhinebeck, NY (Nathaniel K. Charny of counsel), for
appellants.
Bond, Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry
O’Neil of counsel), for respondents City of Mount Vernon and Municipal Civil
Service Commission City of Mount Vernon.
Bank, Sheer, Seymour & Hashmall, White Plains, NY (Jay B, Hashmall of counsel),
for respondent Deborah Reynolds.
In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus
to compel the respondents to reinstate the petitioner Jillian Rizo-Brewington to her prior position
of employment, the petitioners appeal from a judgment of the Supreme Court, Westchester County
(Susan Cacace, J.), dated February 19, 2019. The judgment denied the petition and dismissed the
proceeding.
ORDERED that the judgment is affirmed, with one bill of costs.
On or about June 25, 2014, the petitioner Jillian Rizo-Brewington commenced her
employment with the City of Mount Vernon in the position of Account Clerk in the Comptroller’s
Office and, on February 24, 2016, she was permanently appointed to the position of Account Clerk
subject to a six-month probationary period. In 2017, Rizo-Brewington was promoted to the position
of Senior Account Clerk and, on May 3, 2018, she was terminated from that position for
insubordination. On August 31, 2018, Rizo-Brewington and the petitioner Civil Service Employees
June 22, 2022 Page 1.
MATTER OF CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000,
AFSCME, AFL-CIO v CITY OF MOUNT VERNON
1 of 2
INDEX NO. 62138/2023
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/05/2024
Association, Inc., Local 1000, AFSCME, AFL-CIO commenced the instant proceeding pursuant to
CPLR article 78 against the respondents, City of Mount Vernon, Municipal Civil Service
Commission City of Mount Vernon, and Deborah Reynolds, seeking, inter alia, that Rizo-
Brewington be reinstated to employment at her prior position of Account Clerk. The City and
Municipal Civil Service Commission City of Mount Vernon interposed an answer and opposed the
petition. Reynolds also interposed an answer and opposed the petition. In a judgment dated
February 19, 2019, the Supreme Court denied the petition and dismissed the proceeding. The
petitioners appeal. We affirm.
The challenge to the respondents’ actions is not ripe for judicial review.
Administrative determinations may be challenged in a CPLR article 78 proceeding only after the
determination is final (see CPLR 7801(1]; Matter of Greenberg v Assessor of Town of Scarsdale,
121 AD3d 986, 989). At the time of the commencement of this proceeding, Rizo-Brewington had
not made a request to the respondents to be reinstated to her prior position of Account Clerk and they
had not determined that she should not be reinstated. As no determination had been rendered as of
the date of the commencement of this proceeding, the controversy is not ripe for judicial review (see
Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481; Matter of Ranco Sand & Stone
Corp. v Vecchio, 124 AD3d 73, 86-87, affd 27 NY3d 92; Matter of Greenberg v Assessor of Town
of Scarsdale, 121 AD3d at 989).
Further, since Rizo-Brewington failed to file a written notice requesting to exercise
her retreat rights to her prior position under Municipal Civil Service Commission of the City of
Mount Vernon Rule XVI(2)(b), she was not entitled to reinstatement to her prior position of Account
Clerk. Mount Vernon Municipal Civil Service Commission Rule (hereinafter Rule) XVI (2)(b)
provides that a “provisional, temporary or contingent permanent appointee may return to his/her
permanent position at any time by providing written notice to the appointing authority requesting to
be returned to such permanent position. The appointing authority shall return such appointee to
his/her permanent position within fifteen days of receipt of such written notice.” Rizo-Brewington
was a provisional employee who possessed retreat rights to her prior position of Account Clerk.
However, Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights
under Rule XVI(2)(b). Accordingly, since she did not comply with her obligations pursuant to Rule
XVI(2)(b), the Supreme Court correctly determined that the respondents were not required to
reinstate Rizo-Brewington to her prior position.
The parties’ remaining contentions either are without merit or need not be reached
in light of our determination.
CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.
su IPREME COURT, STATE OF NEW DEPT YORK
APPELLAT! E DIVISION SECOND
|, MARIA T FASULO, Clerk of the Appellate Division
of ENTER:
whee Court, Sec ani id Judicial } Department, do hereby cert
copy with the original fled in my office on
and that tis copy is a correct
in jon of said original.
N932002
ESS. WHEREOF | have hereunto sel my hand and
the seal of this Court on JU Maria T. Fasulo
Clerk of the Court
Mania 7 Prauber
June 22, 2022 Page 2.
MATTER OF CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000,
AFSCME, AFL-CIO v CITY OF MOUNT VERNON
2 of 2
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iD: OUN NK DV INDEX NO. 61138/2023 NYSCEF BOC. NO. 70 RECEIVED NYSCEF: 01/05/2024 BD: AB OUN US au INDEX NO. 61138/2023 NYSCEF DOE. NO. 20 RECEIVED NYSCEF: 04/05/2024 INDEX NO. 63138/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/05/2024 Supreme Court of the State of Pew Bork Appellate Division? Second Judicial Bepartment D69555 Y/htr AD3d. Argued - March 10, 2022 FRANCESCA E. CONNOLLY, J.P. REINALDO E. RIVERA ROBERT J. MILLER PAUL WOOTEN, JJ. 2019-03102 DECISION & ORDER In the Matter of Civil Service Employees Association, Inc., Local 100, AFSCME, AFL-CIO, et al., appellants, v City of Mount Vernon, et al., respondents. (Index No. 663787/18) 63791 -1F Charny & Wheeler P.C., Rhinebeck, NY (Nathaniel K. Charny of counsel), for appellants. Bond, Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O’Neil of counsel), for respondents City of Mount Vernon and Municipal Civil Service Commission City of Mount Vernon. Bank, Sheer, Seymour & Hashmall, White Plains, NY (Jay B, Hashmall of counsel), for respondent Deborah Reynolds. In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents to reinstate the petitioner Jillian Rizo-Brewington to her prior position of employment, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated February 19, 2019. The judgment denied the petition and dismissed the proceeding. ORDERED that the judgment is affirmed, with one bill of costs. On or about June 25, 2014, the petitioner Jillian Rizo-Brewington commenced her employment with the City of Mount Vernon in the position of Account Clerk in the Comptroller’s Office and, on February 24, 2016, she was permanently appointed to the position of Account Clerk subject to a six-month probationary period. In 2017, Rizo-Brewington was promoted to the position of Senior Account Clerk and, on May 3, 2018, she was terminated from that position for insubordination. On August 31, 2018, Rizo-Brewington and the petitioner Civil Service Employees June 22, 2022 Page 1. MATTER OF CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO v CITY OF MOUNT VERNON 1 of 2 INDEX NO. 62138/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/05/2024 Association, Inc., Local 1000, AFSCME, AFL-CIO commenced the instant proceeding pursuant to CPLR article 78 against the respondents, City of Mount Vernon, Municipal Civil Service Commission City of Mount Vernon, and Deborah Reynolds, seeking, inter alia, that Rizo- Brewington be reinstated to employment at her prior position of Account Clerk. The City and Municipal Civil Service Commission City of Mount Vernon interposed an answer and opposed the petition. Reynolds also interposed an answer and opposed the petition. In a judgment dated February 19, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm. The challenge to the respondents’ actions is not ripe for judicial review. Administrative determinations may be challenged in a CPLR article 78 proceeding only after the determination is final (see CPLR 7801(1]; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989). At the time of the commencement of this proceeding, Rizo-Brewington had not made a request to the respondents to be reinstated to her prior position of Account Clerk and they had not determined that she should not be reinstated. As no determination had been rendered as of the date of the commencement of this proceeding, the controversy is not ripe for judicial review (see Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481; Matter of Ranco Sand & Stone Corp. v Vecchio, 124 AD3d 73, 86-87, affd 27 NY3d 92; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d at 989). Further, since Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights to her prior position under Municipal Civil Service Commission of the City of Mount Vernon Rule XVI(2)(b), she was not entitled to reinstatement to her prior position of Account Clerk. Mount Vernon Municipal Civil Service Commission Rule (hereinafter Rule) XVI (2)(b) provides that a “provisional, temporary or contingent permanent appointee may return to his/her permanent position at any time by providing written notice to the appointing authority requesting to be returned to such permanent position. The appointing authority shall return such appointee to his/her permanent position within fifteen days of receipt of such written notice.” Rizo-Brewington was a provisional employee who possessed retreat rights to her prior position of Account Clerk. However, Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights under Rule XVI(2)(b). Accordingly, since she did not comply with her obligations pursuant to Rule XVI(2)(b), the Supreme Court correctly determined that the respondents were not required to reinstate Rizo-Brewington to her prior position. The parties’ remaining contentions either are without merit or need not be reached in light of our determination. CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur. su IPREME COURT, STATE OF NEW DEPT YORK APPELLAT! E DIVISION SECOND |, MARIA T FASULO, Clerk of the Appellate Division of ENTER: whee Court, Sec ani id Judicial } Department, do hereby cert copy with the original fled in my office on and that tis copy is a correct in jon of said original. N932002 ESS. WHEREOF | have hereunto sel my hand and the seal of this Court on JU Maria T. Fasulo Clerk of the Court Mania 7 Prauber June 22, 2022 Page 2. MATTER OF CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO v CITY OF MOUNT VERNON 2 of 2