Opinion
CA 02-00274
June 14, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Wolfgang, J.), entered May 10, 2001, which granted respondents' motion to dismiss the CPLR article 78 petition.
ARCHIE C. CULTON, JR., PETITIONER-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (JULIE S. MERESON OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly dismissed the CPLR article 78 petition as time-barred. Pursuant to CPLR 217 (1), 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'" ( Matter of Yarbough v. Franco, 95 N.Y.2d 342, 346). An administrative determination becomes final and binding "when the petitioner is aggrieved by the determination" ( Matter of Carter v. State of N.Y. Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270). Here, petitioner was aggrieved when the disciplinary sanctions were imposed, and the petition was filed more than four months after the last of the challenged disciplinary sanctions became final and binding. Contrary to petitioner's contention, the subsequent change in the disciplinary policy did not extend the statute of limitations. The general rule that changes in decisional law may be applied to cases "'still in the normal litigating process'" does not apply here to extend a limitations period that had already expired ( Gurnee v. Aetna Life Cas. Co., 55 N.Y.2d 184, 191, rearg denied 56 N.Y.2d 567, cert denied 459 U.S. 837). Even assuming, arguendo, that changes in disciplinary policy apply retroactively to the same extent as changes in decisional law, we conclude that such retroactivity would be limited to those cases "'still in the normal litigating process'" that are not barred by the statute of limitations ( id.).