Summary
addressing timeliness of Article 78 petition challenging termination of at-will public employee
Summary of this case from Nawrocki v. N.Y. State Office of Children & Family Servs.Opinion
2014-06-5
In re Dorothy BURCH, Petitioner–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent–Respondent.
Law Offices of Lloyd Somer, New York (Lloyd Somer of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondent.
Law Offices of Lloyd Somer, New York (Lloyd Somer of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondent.
MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 19, 2013, which granted respondent's cross motion to dismiss, as time-barred, the petition in this article 78 proceeding seeking annulment of its determination, dated December 5, 2011, terminating petitioner's employment, unanimously reversed, on the law, without costs, the cross motion denied, and the matter remanded for further proceedings.
Ordinarily, where the employment of an at-will employee, like petitioner, is terminated, the four-month statute of limitations applicable in article 78 proceedings (CPLR 217) begins to run from the date of the termination, notwithstanding the availability of optional administrative review proceedings ( see Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 530 N.Y.S.2d 79, 525 N.E.2d 725 [1988] ). However, where an administrative agency “create[s][ ] ambiguity and [the] impression of nonfinality,” that ambiguity regarding finality is to be resolved against the agency ( Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 358, 405 N.Y.S.2d 660, 376 N.E.2d 1305 [1978] ).
In the instant case, in informing petitioner by letter dated December 5, 2011, that she was terminated and advising her of the possibility of review under Operating Procedure 20–39, respondent employed precisely the same language as that used in the article 78 statute of limitations (CPLR 217) to inform petitioner that the result of that review would be “final and binding.” The language of the termination letter tracked that of paragraph V(G) of Operating Procedure 20–39, which provides that “[t]he reviewer's decision is final and binding, and is not subject to further administrative review.”
We find that, notwithstanding the fact that the letter otherwise conveyed the concrete impact ordinarily associated with finality for statute of limitations purposes ( see Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ), respondent created sufficient ambiguity as to finality such that the language must be construed against it and the petition must be deemed timely.