Friday, March 16, 2012

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition
Baloy v Kelly, 2012 NY Slip Op 01134, Appellate Division, First Department

The New York City Police Commissioner refused to issue a "good guy" letter authorizing Romeo Baloy to carry firearms upon retirement from the New York Police Department,.

In a letter to Baloy’s wife in August 2006, the Department explained that Baloy’s application for the license was denied because, at the time of his retirement, he was on restrictive duty and ineligible to possess firearms.

Baloy subsequently filed a petiton pursuant to Article 78 of the Civil Practice Law and Rules seeking a court order compelling the Commissioner to issue such a letter to him.

Supreme Court dismissed Baloy’s petition, indicating that the Department’s letter to his wife was a "final and binding" determination and Baloy knew or should have known that he was "aggrieved" by it. Accordingly, the four-month statute of limitations began to run, at the latest, upon receipt of the letter.

The Appellate Division agreed, ruling that Supreme Court  “correctly found” that a letter dated April 24, 2009 from Baloy's attorney was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations.

Further, said the court, as the letter dated May 6, 2009 from the Department reiterated that Baloy did not obtain a “good guy letter” upon retirement because of his restricted duty status, it was not a "new determination" that would suffice to revive the statute of limitations.

In any event, the Appellate Division said that “The possibility of obtaining administrative relief had been exhausted when [Baloy] retired without a change in his restricted duty status.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01134.htm

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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