Opinion
2014-11-19
In the Matter of SHAKUNTALA DEVI TIKA GOPAUL, petitioner-respondent, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, appellant, et al., respondents.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Paul T. Rephen and Keith M. Snow of counsel), for appellant. Barry M. Goldstein, Kew Gardens, N.Y., for petitioner-respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Paul T. Rephen and Keith M. Snow of counsel), for appellant. Barry M. Goldstein, Kew Gardens, N.Y., for petitioner-respondent.
RANDALL T. ENG, P.J., MARK C. DILLON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the New York City Employees' Retirement System to accept, as effective, a designation of beneficiary form designating the petitioner as the sole beneficiary of her late husband's death benefit, the New York City Employees' Retirement System appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Rosengarten, J.), entered July 27, 2012, which denied its motion pursuant to CPLR 325(e) to remove this proceeding to the Surrogate's Court, Queens County, or, in the alternative, pursuant to CPLR 3211(a)(5) to dismiss the petition as time-barred, and granted the petition.
ORDERED that the order and judgment is affirmed, with costs.
The Supreme Court and the Surrogate's Court have concurrent jurisdiction over matters involving the administration of a decedent's estate ( see N.Y. Const. art. VI; Goodwin v. Rice, 79 A.D.3d 699, 913 N.Y.S.2d 692; Manning v. Thorne, 73 A.D.3d 1136, 900 N.Y.S.2d 900; Burmax Co. v. B & S Indus., 135 A.D.2d 599, 601, 522 N.Y.S.2d 177). Here, the petitioner commenced this proceeding, inter alia, to compel the New York City Employees' Retirement System (hereinafter NYCERS) to accept, as effective, a designation of beneficiary form designating her as the sole beneficiary of her late husband's death benefit, and paying the death benefit to her rather than to her husband's sons, who were previously designated as his beneficiaries. This proceeding may have potentially involved the administration of a decedent's estate because the subject death benefit is a testamentary substitute against which the petitioner could exercise a right of election even if it was determined that she was not the designated beneficiary ( seeEPTL 5–1.1–A[b][1][G] ). However, it is undisputed that the Surrogate's Court, Queens County, declined to exercise jurisdiction over this proceeding before it was commenced in the Supreme Court. Under these circumstances, the Supreme Court providently exercised its discretion in denying that branch of NYCERS' motion which was pursuant to CPLR 325(e) to remove this proceeding to the Surrogate's Court, Queens County.
The Supreme Court also properly denied that branch of NYCERS' motion which was, in the alternative, pursuant to CPLR 3211(a)(5) to dismiss the petition as time-barred. In a proceeding in the nature of mandamus to compel, the four-month statute of limitations begins to run “after the respondent's refusal, upon the demand of the petitioner ... to perform its duty” (CPLR 217[1]; see Matter of Speis v. Penfield Cent. Schls., 114 A.D.3d 1181, 980 N.Y.S.2d 642; Matter of Selective Ins. Co. of Am. v. State of N.Y. Workers' Compensation Bd., 102 A.D.3d 72, 76, 953 N.Y.S.2d 368; Matter of Moskowitz v. New York City Police Pension Fund, 82 A.D.3d 473, 918 N.Y.S.2d 341; Matter of Whitted v. City of Newburgh, 65 A.D.3d 1365, 1367, 886 N.Y.S.2d 207). The filing of a CPLR article 78 petition can itself be construed as a demand ( see Matter of Speis v. Penfield Cent. Schls., 114 A.D.3d 1181, 980 N.Y.S.2d 642; Matter of Meegan v. Griffin, 161 A.D.2d 1143, 555 N.Y.S.2d 504). Here, the petitioner made her demand that NYCERS perform its duty to accept her late husband's fully completed and notarized designation of beneficiary form by filing the petition in this proceeding in February 2012. Accordingly, the petition is not time-barred ( see Matter of Speis v. Penfield Cent. Schls., 114 A.D.3d 1181, 980 N.Y.S.2d 642).
NYCERS' remaining contentions are without merit.