Monday, February 02, 2015

Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination

Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination
Matter of School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 2015 NY Slip Op 00676, Appellate Division, Third Department

On May 15, 2012, the New York State Department of Civil Service's Employee Benefits Division issued policy memorandum indicating the circumstances under which an employee of an agency participating in the New York State Health Insurance Program [NYSHIP] may decline health insurance enrollment in NYSHIP in exchange for a cash payment or other benefit, which policy was to take effect immediately.. 

Insofar as was relevant in this action, the policy provided that such an employee could “opt out” of NYSHIP coverage in exchange for a monetary payment only if he or she had health insurance coverage available under another employer-sponsored group other than NYSHIP. Significantly, the policy precluded an employee's receiving an opt-out payment if he or she had health insurance coverage as the dependent of a spouse having health insurance through NYSHIP. 

The Brentwood Union Free School District [Brentwood] was a NYSHIP participating employer. Although not contractually obligated to do so, Brentwood had offered a buyout program for a number of years that enabled its employees to decline NYSHIP coverage in exchange for a monetary payment representing 50% of the premium that the District otherwise would have paid to NYSHIP to provide health insurance coverage for such employee. With the promulgation of the May 15, 2012 policy Brentwood would discontinue the “opt-out” payments to its employees having dependent health insurance coverage under his or her spouse’s health insurance coverage through NYSHIP.

On March 4, 2013, the School Administrator’s Association of New York State commenced a combined CPLR Article 78/action for declaratory judgment on behalf of a number of its members employed by Brentwood affected by the May 15, 2012 policy. The Association asked the court, among other things, to declare the policy null and void and to enjoin Brentwood “from discontinuing its past practice of offering the original NYSHIP buyout program.” 

As to the “past-practice” issue involving the Brentwood employees, Supreme Court found that this claim fell within the exclusive jurisdiction of the Public Employment Relations Board and, therefore, dismissed this element of the action “for lack of subject matter jurisdiction.”

As to the Article 78 action, Supreme Court found that the four-month statute of limitations began to run on the effective date of the policy — May 15, 2012 — and, accordingly, dismissed the Association’s proceeding/action as untimely, since it had been fiiled more than four months after the effective date of the policy. The Association appealed the Supreme Court’s ruling with respect to the timeliness of its Article 78 action.

The Appellate Division, noting that the Association had attempted to mitigate the impact of the policy by filing an improper practices charge against Brentwood with the Public Employment Relations Board alleging it had unilaterally altering its buyout program without engaging in collective bargaining, affirmed the Supreme Court’s determination, explaining that this effort did not affect the finality of the Department of Civil Service's determination.

The parties agree that this combined CPLR Article 78 proceeding and action for declaratory judgment was governed by a four-month statute of limitations. Accordingly, said the court, both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner." The Appellate Division said that the administrative action "becomes 'final and binding' when two requirements are met: 

1. Completeness (finality) of the determination; and 

2. Exhaustion of administrative remedies. 

This event is measured by the administrative agency having reached “a definitive position on the issue” that first, allegedly inflicts actual, concrete injury and second, the injury inflicted may not be “significantly ameliorated by further administrative action or by steps available to the complaining party."

In this instance, said the court, the quasi-legislative determinations such as the one at issue here does not require actual notice of the challenged determination but rather the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party. The Appellate Division said that the Department of Civil Service had satisfied this notice requirement by, among other things:

1. Mailing copies to the chief executive officers of all participating agencies;

2. Mailing copies to any individual who had requested a copy via the participating agency "Courtesy List;" 

3. Posting the memorandum on a website for health benefit administrators (to which union representatives could request access); and

4. Discussing the memorandum at the NYSHIP participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the court, “we are of the view that [the Association’s] claims accrued — and the statute of limitations began to run — upon the effective date of the policy, i.e., May 15, 2012.”

Further, observed the court, even it “were to defer the triggering of the statute of limitations until the October 2012 [NYSHIP ]regional meetings, the instant proceeding and action — commenced in March 2013 — still would be time-barred.”

The decision is posted on the Internet at:

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

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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