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Costantakos v. Board of Educ. of City of N.Y

Appellate Division of the Supreme Court of New York, Second Department
Nov 26, 1984
105 A.D.2d 825 (N.Y. App. Div. 1984)

Opinion

November 26, 1984

Appeal from the Supreme Court, Kings County (Jordan, J.).


Order reversed, without costs or disbursements, defendant's motion denied, complaint reinstated, and matter remitted to Special Term for further proceedings in accordance herewith.

Special Term erred in dismissing plaintiff's complaint as time barred. A declaratory judgment action is generally governed by a six-year Statute of Limitations period (CPLR 213, subd 1). However, where such action could have been brought as a proceeding pursuant to CPLR article 78, a four-month limitations period applies (CPLR 217; Solnick v Whalen, 49 N.Y.2d 224).

Contrary to Special Term's finding, a proceeding pursuant to CPLR article 78 was not the proper alternate form of judicial proceeding open to plaintiff. Such proceeding is not available to challenge a "legislative" act (see Solnick v Whalen, supra; Press v County of Monroe, 50 N.Y.2d 695). The issue in the instant case involves the constitutionality of part c of defendant's by-law 491 which does not include music teaching in its list of nonteaching experience deserving of salary credit. Defendant's denial of plaintiff's request for salary credit on the basis of this by-law is a "legislative" act. This label applies where, as here, the dispute centers upon a rule of general applicability rather than an ad hoc determination of an individual party's particular rights ( Solnick v Whalen, supra, pp. 231-232). Therefore, as plaintiff's case could not have been brought as an article 78 proceeding, the six-year rather than four-month limitations period applies, rendering the action timely.

Finally, we note that sufficient basis in the record did not exist for Special Term's conclusion that the by-law classification was rationally based and therefore not violative of the equal protection clause. Upon remittitur, a full adjudication of the merits is required. Mangano, J.P., Gibbons, O'Connor and Brown, JJ., concur.


Summaries of

Costantakos v. Board of Educ. of City of N.Y

Appellate Division of the Supreme Court of New York, Second Department
Nov 26, 1984
105 A.D.2d 825 (N.Y. App. Div. 1984)
Case details for

Costantakos v. Board of Educ. of City of N.Y

Case Details

Full title:CHRIS COSTANTAKOS, Appellant, v. BOARD OF EDUCATION OF THE CITY OF NEW…

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

Date published: Nov 26, 1984

Citations

105 A.D.2d 825 (N.Y. App. Div. 1984)

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