Summary
applying the rule in Immediate to find the defendant adequately pleaded the statute of limitations defense against plaintiff's Article 78 proceeding challenging the termination of his employment
Summary of this case from Dibiase v. BarberOpinion
Submitted August 17, 1999
October 18, 1999
In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated December 23, 1997, which, after a hearing, terminated his employment as a Corrections Officer, the petitioner appeals from (1) a judgment of the Supreme Court, Rockland County (Miller, J.).
ORDERED that the appeal from the order is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
The Supreme Court correctly granted the respondents' motion to dismiss the proceeding as untimely because the petitioner commenced it one day after the four-month Statute of Limitations had expired (see, CPLR 217; Charwat v. Kustas, 233 A.D.2d 288, 289). Contrary to the petitioner's claim, the Supreme Court was without authority to extend the Statute of Limitations (see, CPLR 201; Bolovis v. Polis Contr. Corp., 235 A.D.2d 323; Matter of Cartwright v. Rose, 162 A.D.2d 451, 452; Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 33). Moreover, the respondents sufficiently pleaded the Statute of Limitations as a defense (see, Immediate v. St. John's Queens Hosp., 48 N.Y.2d 671, 673).
S. MILLER, J.P., SULLIVAN, FRIEDMANN, and FEUERSTEIN, JJ., concur.