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January 03, 2012

Aggrieved individual’s request for reconsideration of an administrative decision does not toll the running of the statute of limitations

Aggrieved individual’s request for reconsideration of an administrative decision does not toll the running of the statute of limitations
Matter of Cowan v Kelly, 2011 NY Slip Op 08294, Appellate Division, First Department

It is “black letter law” that an individual seeking to file a petition pursuant to CPLR 78 proceeding against a body or officer challenging an administrative decision must file the petition within four months after the determination to be reviewed becomes final and binding upon the aggrieved individual. When does such a determination become final and binding on the individual? When, said the Appellate Division citing Yarbough v Franco, 95 NY2d, the individual has received notice of the administrative determination and “has been aggrieved thereby."

Supreme Court rejected Richard Cowan’s 78 petition challenging an administrative decision, holding it was untimely as it had been filed more than four months after the decision had become “final and binding” on him. The Appellate Division agreed and dismissed his appeal from the Supreme Court’s ruling.

Cowan, said the court, “became aggrieved by and received notice of the [Kelly’s] determination” and had to file his petition within four months of that date, which he failed to do.

The Appellate Division rejected Cowan’s argument that had not become aggrieved until he failed to receive a response to a memorandum he had sent seeking to have the administrative determination changed. The court explained that his memorandum “constituted nothing more than a request for reconsideration of [Kelly’s] determination of his status, and therefore, did not toll or revive the statute of limitations.”

Sometimes there is a question concerning the “service” of a final administrative decision with respect when the statute of limitations commences to run. This was the underlying issue in Kalinsky v SUNY at Binghamton, 214 A.D.2d 860. The general rule is that:

1. If an individual is not represented by an attorney, the statute of limitations begins to run when the individual is served with the administrative determination.

2. If an individual is represented by an attorney, the administrative body may send a copy of the determination to the individual but the statute of limitations begins running upon service of the individual’s attorney.

3. If the individual is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the individual to start the statute of limitations running.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08294.htm

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