Opinion
2012-08-22
In the Matter of Charles McCARRY, respondent, v. PURCHASE COLLEGE, STATE UNIVERSITY OF NEW YORK, et al., appellants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard P. Dearing and Claude Platton of counsel), for appellants. Eisner & Mirer, P.C., New York, N.Y. (Eugene G. Eisner of counsel), for respondent.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard P. Dearing and Claude Platton of counsel), for appellants. Eisner & Mirer, P.C., New York, N.Y. (Eugene G. Eisner of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., PETER B. SKELOS, ANITA R. FLORIO, and L. PRISCILLA HALL, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of Thomas Schwarz, the President of Purchase College, State University of New York dated August 3, 2010, denying the petitioner reappointment to the position of assistant professor, Purchase College, State University of New York and Thomas Schwarz appeal (1) from a judgment of the Supreme Court, Westchester County (Lorenzo, J.), entered June 7, 2011, which granted the petition, annulled the determination, and remitted the matter to them for de novo review and a new determination, and (2), as limited by their brief, from so much of a supplemental judgment of the same court dated June 27, 2011, as directed the retroactive reinstatement of the petitioner, with full compensation and benefits, pending the de novo review.
ORDERED that the judgment entered June 7, 2011, is reversed, on the law, the petition is denied, and the proceeding is dismissed; and it is further,
ORDERED that the supplemental judgment dated June 27, 2011, is reversed insofar as appealed from, on the law; and it is further,
ORDERED that one bill of costs is awarded to Purchase College, State University of New York and Thomas Schwarz.
Contrary to the conclusion reached by Supreme Court, this proceeding by the petitioner challenging the determination not to reappoint him to the position of assistant professor was time-barred by the four-month statute of limitations set forth in CPLR 217(1). The limitations period began to run on the date that the challenged determination became final and binding ( see Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38). “A determination generally becomes binding when the aggrieved party is ‘notified’ [of that determination]” (Matter of Village of Westbury v. Department of Transp. of State of N.Y., 75 N.Y.2d 62, 72, 550 N.Y.S.2d 604, 549 N.E.2d 1175), at which time the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action ( see Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d at 34, 799 N.Y.S.2d 182, 832 N.E.2d 38). Here, it is undisputed that the instant proceeding was commenced more than four months after the petitioner received notification that he had not been reappointed to his teaching position ( see e.g. Roufaiel v. Ithaca Coll., 241 A.D.2d 865, 660 N.Y.S.2d 595;90–92 Wadsworth Ave. Tenants Assn. v. City of N.Y. Dept. of Hous. Preserv. & Dev., 227 A.D.2d 331, 656 N.Y.S.2d 8;Matter of Robertson v. Board of Educ. of City of N.Y., 175 A.D.2d 836, 573 N.Y.S.2d 308). In this regard, the petitioner's reliance upon decisions involving the discretionary termination of ongoing employment is misplaced, and the limitations period did not run from the date upon which his fixed-duration employment contract automatically ended ( cf. Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 472, 940 N.Y.S.2d 540, 963 N.E.2d 1241;Matter of De Milio v. Borghard, 55 N.Y.2d 216, 220, 448 N.Y.S.2d 441, 433 N.E.2d 506;Matter of Mawn v. County of Suffolk, 17 A.D.3d 467, 468, 792 N.Y.S.2d 341;Matter of Mateo v. Board of Educ. of City of N.Y., 285 A.D.2d 552, 553, 728 N.Y.S.2d 71).
Furthermore, even if the petitioner's proceeding had been timely commenced, the record demonstrates that the appellants substantially complied with the internal rules of Purchase College, State University of New York ( see Matter of Fruehwald v. Hofstra Univ., 82 A.D.3d 1233, 920 N.Y.S.2d 183), and the determination was not arbitrary and capricious.
In view of the foregoing, we need not reach the appellants' remaining contention.