Monday, October 03, 2011

Appealing a final administrative decision


Appealing a final administrative decision
Diamond v Gallagher, 291 A.D.2d 404

The Diamond decision by the Appellate Division, Second Department, demonstrates the importance of filing a timely appeal challenging an administrative determination if the individual is unhappy with the ruling.

Suffolk County sent a letter to one of its police officers, Michael Diamond, notifying him of an administrative decision to terminate him from his position. About two years later Diamond filed a petition pursuant to Article 78 of the Civil Practice law and Rules [CPLR] challenging his dismissal from the Department.

Supreme Court rejected Diamond's petition as untimely and he appealed the court's ruling to the Appellate Division. Affirming the lower court's determination, the Appellate Division succinctly set out the basic rule for filing a timely appeal of an administrative decision as follows:

1. Section 217(1) of the CPLR provides that a proceeding pursuant to CPLR Article 78 against a body or an officer must to be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner".

2. An administrative determination is final and binding when it has an impact upon the individual and when the individual knows he or she is aggrieved.

Finding that the challenged determination became final on the effective date of Diamond termination, and that he was informed of his termination and that he acknowledged it on that date, the Appellate Division said that "the Supreme Court correctly dismissed the proceeding commenced over two years later as untimely."

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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