Opinion
9698 Index 154169/17
06-25-2019
In re Robert STEWART, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent.
Levine & Blit, PLLC, New York (Justin S. Clark of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.
Levine & Blit, PLLC, New York (Justin S. Clark of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Webber, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered July 2, 2018, granting respondent's cross motion to dismiss the petition to, inter alia, annul respondent's determination, dated October 24, 2016, not to hire petitioner as a cleaner and to direct respondent to reconsider petitioner's application for employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court properly dismissed this proceeding as untimely ( CPLR 217[1] ). The proceeding was commenced more than four months after the agency's determination to deny petitioner's renewed application for employment became final and binding on petitioner (see Matter of Carter v. State of N.Y., Exec. Dept., Div. of Parole , 95 N.Y.2d 267, 270, 716 N.Y.S.2d 364, 739 N.E.2d 730 [2000] ; Matter of Cauldwest Realty Corp. v. City of New York , 160 A.D.2d 489, 554 N.Y.S.2d 153 [1st Dept. 1990] ).
Contrary to petitioner's contention, the limitations period did not begin to run on the date of the General Municipal Law § 50–h hearing held in connection with a notice of claim he filed against respondent concerning his claim for damages arising from discrimination in violation of Correction Law § 752, as he cannot "circumvent the statute of limitations by demanding that an agency change its determination and seeking mandamus to compel when that demand is refused" ( Matter of Imandt v. New York State Unified Ct. Sys., 168 A.D.3d 1051, 1053, 93 N.Y.S.3d 343 [2d Dept. 2019] ). The notice of claim "was at best a plea for reconsideration, which neither tolled the Statute of Limitations nor began anew the time within which review could be sought" ( Matter of Miller v. McGough , 97 A.D.2d 416, 416, 467 N.Y.S.2d 250 [2d Dept. 1983] ; see Matter of Lubin v. Board of Educ. of City of N.Y. , 60 N.Y.2d 974, 976, 471 N.Y.S.2d 256, 459 N.E.2d 481 [1983] ). Furthermore, the record does not support petitioner's claim that he made a demand for compliance with a duty enjoined on respondent by law at the 50–h hearing.