The date on which a statute of limitations commences "running" depends on the nature of the challenge to an administrative action
Roenke v SUNY, 284 AD2d 781
Whether or not an Article 78 action appealing a particular administrative decision is timely depends on the nature of the action being challenged, as the Roenke case demonstrates.
In December 1997, SUNY advised Henry M. Roenke, that effective January 1, 1998, it would no longer would permit him to make contributions to his tax deferred custodial account although it would allow him to make contributions to various tax sheltered annuities. Roenke objected, but his August 1998 petition seeking a court order compelling SUNY to designate a company or companies from which he could purchase shares in a tax deferred custodial account was dismissed as untimely. He appealed, contending that his petition was, in fact, timely filed because it was submitted within four months of SUNY's rejection of his demand that SUNY reinstate purchasing such shares.
According to the Appellate Division, if Roenke's action was in the nature of mandamus to compel SUNY to perform a statutory duty, the Statute of Limitations does not begin to run until an appropriate demand is made and refused. If, on the other hand, Roenke’s petition involves a challenge to a discretionary act by SUNY rather than its complying with a statutory duty, the Statute of Limitations begins to run from the date that the determination became final and binding upon on him.
Roenke's basic argument: Section 399 of the Education Law mandates that SUNY promulgate a list of companies from which shares in a custodial account may be purchased. The Appellate Division disagreed, holding that because there was nothing in Section 399 compelling SUNY to establish custodial account programs in the first instance, establishing such a program was clearly a discretionary action on the part of SUNY.
The opinion notes that the fact “[t]hat SUNY is permitted but not required to establish such programs is made even clearer by the language contained in Education Law Section 399(2), which begins, “[w]here the employer has established a special annuity and/or custodial account program authorized by this article”.
Accordingly, said the court, the four-month Statute of Limitations for challenging SUNY's administrative decision to discontinue making contributions to Roenke's custodian account effective January 1, 1998 began to run when Roenke was told of this change in December 1997. Thus, said the court, Roenke's filing his complaint in August 1998 “was plainly is time barred.”