Cahill v. N.Y. State Div. of State Police

Full title: MICHAEL F. CAHILL JR., Appellant, v. NEW YORK STATE DIVISION OF STATE…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 10, 2003

304 A.D.2d 971 (N.Y. App. Div. 2003)

756 N.Y.S.2d 912

Opinion

92987

April 10, 2003.

Appeal from a judgment of the Supreme Court (Keegan, J.), entered October 10, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition as time barred.

Hite, Savitt, O'Donnell Beaumont P.C., Albany (Meredith H. Savitt of counsel), for appellant.

Eliot Spitzer, Attorney General, Albany (Dorothy E. Hill of counsel), for respondents.

Before: Mercure, J.P., Spain, Carpinello, Rose and Kane, JJ.

MEMORANDUM AND ORDER

Carpinello, J.

Petitioner commenced this CPLR article 78 proceeding to challenge respondents' alleged failure to follow disciplinary procedures before involuntarily transferring him from the position of Zone Commander in one location to the position of Administrative Captain in another location with respondent New York State Division of State Police. Supreme Court granted respondents' motion to dismiss the petition as barred by the four month statute of limitations for CPLR article 78 proceedings (see CPLR 217), prompting this appeal.

The statute of limitations period begins to run when "the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217; see Matter of Healy v. Sheldon, 235 A.D.2d 992). Petitioner argues that the determination became final and binding upon him on March 14, 2002 when he was actually transferred. It is well settled, however, that "where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified" (Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716; see Matter of Resurrection Nursing Home v. New York State Dept. of Health, 298 A.D.2d 752, 753; Matter of New York State Radiological Socy. v. Wing, 244 A.D.2d 823, 825, lv denied 92 N.Y.2d 802). Inasmuch as petitioner was informed of the involuntary transfer on February 21, 2002, and advised that the transfer was final and nonnegotiable, we agree with Supreme Court that the statute of limitations began to run as of that date. Accordingly, Supreme Court properly concluded that this proceeding, which was not commenced until July 12, 2002, was untimely.

Mercure, J.P., Spain, Rose and Kane, JJ., concur.

ORDERED that the judgment is affirmed, without costs.