Opinion
5311
January 10, 2002.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 21, 2000, which, in a proceeding to annul respondent Police Commissioner's determination to dismiss petitioner from his position as a police officer, granted respondent's motion to dismiss the petition as barred by the Statute of Limitations, and dismissed the petition, unanimously affirmed, without costs.
PRO SE, for petitioner-appellant.
CHERYL PAYER for respondents-respondents.
Before: Mazzarelli, J.P., Sullivan, Wallach, Rubin, Friedman, JJ.
After a second departmental hearing conducted pursuant to a prior order of this Court annulling a prior determination by respondent to dismiss petitioner from the police force for misconduct (Matter of Montella v. Kelly, 202 A.D.2d 241, lv denied 83 N.Y.2d 758), respondent again dismissed petitioner in a determination dated March 31, 1995. Petitioner successfully appealed that determination to the Civil Service Commission, but, by decision dated June 8, 1999, the Court of Appeals held that the Commission lacks authority to review respondent's disciplinary determinations, and that its determination reversing petitioner's dismissal and ordering his reinstatement was therefore "void" (Matter of Montella v. Bratton, 93 N.Y.2d 424, 432, revg, 248 A.D.2d 134; see also,Johnson v. Triborough Bridge Tunnel Auth., 97 N.Y.2d 627; 2001 N.Y. LEXIS 3310, *3). On September 29, 1999, petitioner instituted the instant article 78 proceeding to annul respondent's March 31, 1995 determination, arguing, in opposition to respondent's motion to dismiss on the ground of the four-month Statute of Limitations, that the proceeding is timely by reason of the six-month extension provided by CPLR 205(a). The motion court correctly rejected this argument on the ground that since CPLR 205(a), in terms, refers to the terminated prior proceeding as an "action and, since "an administrative proceeding is not an action" (Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 82, citing, inter alia, CPLR 105[b]), the appeal before the Civil Service Commission does not qualify as a predicate for a CPLR 205(a) extension. Nor does it avail petitioner to argue that respondent should be estopped from asserting the Statute of Limitations because of its failure to object to the Commission's authority until after that body had ruled against it. Indeed, this point was implicitly decided against petitioner in the prior proceeding involving the Commission's authority, when both this Court and the Court of Appeals rejected petitioner's argument that respondent's participation in the Commission's proceeding estopped it from later challenging the Commission's subject matter jurisdiction (248 A.D.2d,supra, at 135; 93 N.Y.2d, supra, at 432). Pursuit of an unavailable grievance procedure does not toll the Statute of Limitations (see, Matter of Majka v. Utica City School Dist., 247 A.D.2d 845, 846, citing, inter alia, Matter of Lubin v. Board of Educ., 60 N.Y.2d 974, cert denied 469 U.S. 823). It should also be noted that the four-month period for filing a timely article 78 proceeding challenging the March 31, 1995 determination dismissing petitioner from his position expired before respondent was required to answer petitioner's appeal to the Commission.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.