Opinion
2001-10225
Argued December 13, 2002.
December 30, 2002.
In an action, inter alia, for a judgment declaring that the defendants' interpretation of New York City Administrative Code § 13-357 is erroneous, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated October 11, 2001, as denied their cross motion for summary judgment dismissing the complaint.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart, Magda Deconinck, and Marta Ross of counsel), for appellants.
Kase Druker, Garden City, N.Y. (James O. Druker and Paula Schwartz Frome of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.
If the issues presented in a declaratory judgment action could have been raised in a proceeding pursuant to CPLR article 78, then that action must be brought within four months of the act giving rise to the litigation. "[T]he time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief" (New York City Health Hosps. Corp. v. McBarnette, 84 N.Y.2d 194, 201; see Solnick v. Whalen, 49 N.Y.2d 224, 230). Indeed, the parties agree that this action is governed by the four-month limitation period of CPLR 217; they differ regarding the time of accrual. The plaintiffs have been aware since at least one year before this action was commenced of the defendants' interpretation of the term "current maximum salary" under the pertinent provision of the New York City Administrative Code. Accordingly, this action is time-barred.
In light of our determination, it is unnecessary to address the defendants' remaining contentions.
SANTUCCI, J.P., H. MILLER, SCHMIDT and TOWNES, JJ., concur.