Opinion
November 5, 1970
Appeal from an amended judgment of the Supreme Court, entered in Albany County on April 17, 1970, in a proceeding brought pursuant to CPLR article 78, granting respondents' motion to dismiss appellant's petition on the basis that the action is precluded by the four-month period of limitation of CPLR 217. In early 1969 an executive decision was made to discontinue the operation of the Commerce Department office in Washington and to reassign and transfer its personnel according to present needs of the department, and on April 19, 1969 appellant received official notification of the transfer of his position and his reassignment to the Commerce Department office in Albany, New York. The instant proceeding was not instituted until January, 1970. Thus more than four months have clearly elapsed between the action sought to be reviewed and the commencement of this proceeding, and accordingly the petitioner is barred from relief by CPLR 217. ( Matter of McDermott v. Johnson, 2 N.Y.2d 608; Matter of Williamson v. Fermoile, 31 A.D.2d 438, affd. 26 N.Y.2d 731; Matter of Napolitano v. Murphy, 28 A.D.2d 852.) The ensuing disciplinary proceeding, when appellant failed to report to Albany, did not toll the running of the statute with respect to the decision to transfer the Washington office and its staff to Albany. Nor was the implementation of the transfer a continuing wrong which would make the bringing of the instant proceeding timely. Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.