Tuesday, September 06, 2011

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations


Seeking an alternate remedy may not stay the running of Article 78's statute of limitations
Brignoni v Abramson, 278 AD2d 565

Critical to consideration of any grievance or lawsuit is that the complaint be timely filed, typically referred to as satisfying the statute of limitations. The Brignoni case demonstrates the importance of a timely filing of any such actions.

New York State correction officer Obdulio Brignoni, Jr. held a temporary appointment as a correction sergeant. He later learned that it was unlikely that he would ever be given a permanent position of correction sergeant.

The union, Law Enforcement Officers Union, District Council 82, [DC-82] sued the Department of Correctional Services [DOCS] on behalf of Brignoni and other “temporary sergeants,” contending that such temporary appointments were unlawful, unconstitutional and an abuse of discretion.

Initially DOCS offered to settle the action on terms that would have resulted in Brignoni being given a permanent appointment. DC-82, however, rejected the offer. Ultimately, DC-82 and DOCS settled the lawsuit. The terms of the settlement “excluded” Brignoni and he did not receive a permanent appointment as a correction sergeant.

While the settlement discussions were taking place Brignoni filed a grievance challenging his temporary appointment. The Governor's Office of Employee Relations [GOER] determined that Brignoni's complaint was not grievable.

To “protect his employment,” Brignoni applied for and received a voluntary demotion to correction officer.

He later filed an improper practice charge against DC-82 with the Public Employment Relations Board (PERB), alleging that DC-82 had breached its duty of fair representation by settling the class action with DOCS in a manner detrimental to his interests.

In addition to dismissing Brignoni's charge as untimely, PERB also indicated that he “failed to establish that the Union had breached its duty of fair representation.” Brignoni filed a petition pursuant to Article 78 seeking to overturn PERB's decision.

Among the reasons given by a Supreme Court judge for dismissed Brignoni's petition was that it was untimely.

The Appellate Division affirmed the lower court's ruling, indicating that “[a] proceeding which seeks to review the determination of a body or officer must be commenced within four months after the determination becomes final and binding.”

Since Brignoni did not file his petition with in four months of PERB's final determination, he was barred from proceeding.

Brignoni attempted to persuade the court that his Article 78 petition was timely on the basis that the statute of limitations “was tolled during the pendency of his grievance proceeding against DOCS.”

The court decided that there was “no merit to this argument since the pursuit of an unavailable grievance procedure does not operate to toll the Statute of Limitations.” Pointing out that Brignoni's grievance was dismissed by GOER as “not grievable” and he did not challenge that determination within the four months period available to him for such purpose, this was yet another reason for holding Brignoni's Article 78 action untimely.

Equally unsuccessful was Brignoni's argument that his filing of an unfair labor practice charge with PERB tolled the Statute of Limitations. This Appellate Division said that this argument “is equally unavailing” since DOCS was not a party to that proceeding and, in any event, it did not impinge upon [Brignoni's] right to commence a timely Article 78 proceeding against DOCS.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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