Tuesday, September 06, 2011

Filing a timely administrative appeal

Filing a timely administrative appeal
Matter of Friedman v New York State Div. of Human Rights, 2011 NY Slip Op 32313(U), Supreme Court, New York County, Docket Number: 104301/11, Judge: Donna M. Mills [Not selected for publication in the Official Reports]

In this special proceeding Moshe Friedman challenged the dismissal of his complaint of alleged unlawful discrimination by the New York State Division of Human Rights (DHR). Friedman had charged that his former employer’s decision to terminate his employment was based on age, creed and gender in violation of the New York State Human Rights Law, Executive Law §296. The Division had dismissed the complaint after finding that it had been “untimely filed.”

Executive Law §297 sets out the procedures for the filing and resolution of complaints of unlawful discrimination by the DHR and prescribes the time period within which an aggrieved party must file a verified complaint in writing, e.g., “…within one year after the alleged unlawful discriminatory practice.”

Friedman contended that the “date of filing” should be the date his complaint was notarized or postmarked, which date would have otherwise been timely*. DHR, on the other hand, said that the date on which it received Friedman’s complaint controlled and it did not receive it until four days after the one-year period for filing such complaints ended.

Judge Mills ruled that New York courts construed this one-year limitations period as mandatory and thus Friedman failed to comply with this mandate, citing Bd.of Educ. of Farmingdale Union School Dist.v New York State Div. of Human Rights, 56 NY2d 257 in support of its ruling.** In the words of the court, Friedman did not meet the time limitation set out in Executive Law §297, “which must be strictly construed” as there is nothing in the statute or its implementing regulation indicating that the timely mailing of an application or a hearing is sufficient. Thus “the timeliness of such a filing must be measured by the date it was [received by] DHR rather than the date it was mailed.”

Accordingly, said Judge Mills, Friedman’s complaint which was received four days after the one-year limitations period expired, was untimely.

In McLaughlin v Saga Corporation, 657 NYS2d 784, a case involving an appeal filed with the Workers' Compensation Appeals Board [WCB], the Appellate Division initially took the position that a notice of appeal is untimely if it physically received by the appellate body after the Statute of Limitations had passed.

In Saga's case, although the appeal was mailed within the 30-day period allowed for filing the application, WCB did not physically receive it until eight days after the statute of limitations had expired. When Sega asked for permission to appeal its rule, the Appellate Division elected to reconsider its decision. It then reversed its initial ruling, holding that it is the date of mailing, rather than the date of receipt, that controls in determining the timeliness of an administrative appeal.

The rationale underlying the revised ruling: If a person has a statutory right to make a decision, which may be then filed by mail, this period would necessarily be shortened if the appellate body could insist that it physically receive the mailed notice no later than the last day of the period of limitation. In effect the Court concluded that the method of service of a notice of appeal, mail or personal delivery, should not determine the time period available to the party to decided whether or not to appeal an administrative ruling.

On occasion law, rule and regulation set out the criteria regarding “timely fillings.” For example, Chapter 245 of the Laws of 1992 provided that the timely mailing of an application to qualify for service credit or benefits by the deadline date established is sufficient to meet a deadline, provided mailing is actually received by New York State Teachers' Retirement System. If, however, the System never "actually received" the application, the court would probably have required that the applicant submit "proof of mailing within the limitations period" in order to have the filing declared timely. Accordingly, it would be prudent to send appeals filed using the U.S. Postal Service by certified or registered mail, "return receipt request" notwithstanding the provisions of Chapter 245 type provision to the contrary.

* N.B. In such cases both the execution of the required notarization and the physical mailing must be timely.

** See, also, City of Cortland v White, 114 A.D.2d 64. In Cortland the Appellate Division, 3rd Department, ruled that an appeal from a determination of the Commissioner of Human Rights must have been actually received by the court, in contrast to having merely been mailed on or before the last day on which it may be filed to be timely. Although the Cortland claimed that it had mailed its petition to the court within the 60-day time limit permitted, the Appellate Division ruled that it was the date of receipt, not the date of the mailing, which controlled in determining if an appeal is timely filed. Although the Human Rights Law is silent as to the manner and effective date of commencing an appeal from a determination by the Commissioner of Human Rights (or a DHR regional director), the Appellate Division noted the "considerable body of precedential law" in support of its ruling, citing People v Dimmie, 15 NY2d 578.

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