SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

130 

CA 14-01234 

PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF NEW YORK STATE NURSES ASSOCIATION, 

DENNIS ROBINSON, INDIVIDUALLY AND AS CHAIRPERSON 

OF NEW YORK STATE NURSES ASSOCIATION LOCAL 

BARGAINING UNIT, NATHAN SULL, INDIVIDUALLY AND 

AS MEMBERSHIP CHAIRPERSON OF NEW YORK STATE MEMORANDUM AND ORDER

NURSES ASSOCIATION LOCAL BARGAINING UNIT, 

CHRIS REED, INDIVIDUALLY, CIVIL SERVICE 

EMPLOYEES ASSOCIATION INC., LOCAL 

815, DENISE SYZMURA, INDIVIDUALLY AND AS 

PRESIDENT OF ERIE UNIT OF CSEA LOCAL 815, 

KEVIN KUMOR, INDIVIDUALLY AND AS EXECUTIVE VICE 

PRESIDENT OF ERIE UNIT OF CSEA LOCAL 815 AND 

BELLA MEDOLA, INDIVIDUALLY AND AS PRESIDENT OF 

ECMC UNIT OF CSEA LOCAL 815, 

PETITIONERS-PLAINTIFFS-APPELLANTS, 

 

V

ERIE COUNTY MEDICAL CENTER CORPORATION, ERIE 

COUNTY MEDICAL CENTER CORPORATION BOARD OF 

DIRECTORS AND JODY L. LOMEO, AS CHIEF EXECUTIVE 

OFFICER OF ERIE COUNTY MEDICAL CENTER CORPORATION,

RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

COHEN, WEISS AND SIMON LLP, NEW YORK CITY (JOSHUA J. ELLISON OF

COUNSEL), AND STEVEN A. CRAIN AND DAREN J. RYLEWICZ, CIVIL SERVICE

EMPLOYEES ASSOCIATION, INC., ALBANY, FOR PETITIONERS-PLAINTIFFSAPPELLANTS. 

GOLDBERG SEGALLA LLP, BUFFALO (MATTHEW C. VAN VESSEM OF COUNSEL), FOR

RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment (denominated order and judgment) of the

Supreme Court, Erie County (Jeremiah J. Moriarty, III, A.J.), entered

April 21, 2014 in a CPLR article 78 proceeding and declaratory

judgment action. The judgment granted the motion of respondents to

dismiss the petition-complaint and dismissed the petition-complaint. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: On December 11, 2013, petitioners-plaintiffs

(petitioners) commenced this hybrid CPLR article 78 proceeding and

declaratory judgment action (proceeding) challenging a resolution
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CA 14-01234 

adopted by respondent-defendant Erie County Medical Center Corporation

Board of Directors (Board) on February 26, 2013. The resolution,

among other things, authorized respondent-defendant Erie County

Medical Center Corporation (ECMCC) “to directly administer applicable

parts of the Civil Service Law,” effective immediately. In their

petition-complaint (petition), petitioners alleged that the Board

lacked authority to establish its own civil service system, that the

Board acted in violation of Public Authorities Law and Civil Service

Law and in an “ultra vires manner,” and that the resolution was

“affected by an error of law or was arbitrary and capricious” (CPLR

7803 [3]). Supreme Court dismissed the petition as time-barred

inasmuch as petitioners commenced the proceeding more than four months

after the resolution was adopted. We affirm. 

Petitioners contend that their petition was timely because no

injury had yet occurred at the time the petition was filed. We reject

that contention. The Board’s adoption of the resolution constituted a

definitive position that resulted in actual concrete injury because,

pursuant to the resolution, ECMCC was immediately authorized to

administer civil service functions, thereby usurping the authority of

Erie County to do so (see generally Stop-The-Barge v Cahill, 1 NY3d

218, 223).

We reject petitioners’ further contention that the court should

have issued a declaration that ECMCC and the Board violated Civil

Service Law and Public Authorities Law. Petitioners cannot avoid

dismissal of their untimely petition by casting their claim as one

seeking declaratory relief (see generally New York City Health &

Hosps. Corp. v McBarnette, 84 NY2d 194, 201; Matter of Foley v

Masiello, 38 AD3d 1201, 1201-1202).

Entered: March 27, 2015 Frances E. Cafarell

Clerk of the Court