Thursday, May 28, 2015

An administrative agency’s acknowledgment of its authority to reconsider its determination, without more, neither rendered its determination nonfinal nor extended the relevant statute of limitations



An administrative agency’s acknowledgment of its authority to reconsider its determination, without more, neither rendered its determination nonfinal nor extended the relevant statute of limitations
2015 NY Slip Op 04369, Appellate Division, Third Department

The general rule followed in situations where an aggrieved party asks an administrative agency or tribunal to reconsider its determination is that the statute of limitations to appeal the administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney, notwithstanding the submission of such a request.

This point is illustrated in the Cardo case.* In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period within which the [Article 78] proceeding must be commenced." Indeed, in Kahn v New York City Department of Education 79 AD3d 52, the Appellate Division held that the statute of limitations for initiating a lawsuit is not tolled by the individual’s pursuing his or her opportunity to seek an administrative review of the determination.

In contrast to the legal impact of an individual merely submitting a "request for reconsideration," should the administrative actually agree to reconsider the matter and issue a new determination, the statute of limitations will begin running from the date of the new "final determination." This is true even if the new "final determination" confirms the original administrative decision.

In Orange County Economic Development Corporation, [Corporation], v State Of New York Authorities Budget Office, [Budget], the Appellate Division indicated that the same general rule applied with respect to challenges to Budget’s administrative determinations.

Corporation is a not-for-profit local economic development corporation. In November 2011 Budget wrote to Corporation stating that Budget considered Corporation to be a local authority subject to the reporting, disclosure and governance requirements of the Public Authorities Law. That letter also stated that “the lack of any response from Corporation by December 6, 2011 would indicate Corporation's acceptance of [Budget’s] determination.”

Corporation responded to Budget’s November 2011 notice by letter dated January 2012.

In the months that followed Corporation and Budget exchanged communications regarding Corporation's disagreement with Budget’s determination and Corporation requested that Budget reconsider its decision. Budget consistently responded that it considered Corporation to be a covered local authority and, in July 2013, publicly listed Corporation as noncompliant.

In November 2013 Corporation  filed a petition pursuant to CPLR Article 78 challenging Budget's determination. Supreme Court granted Budget's pre-answer motion to dismiss Corporations' petition on the ground that the proceeding was untimely, which ruling Corporation appealed to the Appellate Division.

In its appeal Corporation contended that the proceeding was not subject to a four-month statute of limitations because Budget acted in excess of its jurisdiction. The Appellate Division said that Corporation’s argument was unpersuasive. The court explained that Budget is authorized to ensure that "local authorities" comply with the reporting requirements of the Public Authorities Law and Corporation's claim that Budget's determination was in conflict with the relevant statutory language is "reviewable in a CPLR Article 78 proceeding, subject to a four-month statute of limitations."

The Appellate Division agreed with Supreme Court that Budget’s determination that Corporation was a local authority subject to the reporting, disclosure and governance requirements of the Public Authorities Law, became final and binding on the Corporation on December 6, 2011. Indeed, said the court, “Budget's November 2011 letter left no doubt that it had reached a definitive position regarding Corporation's status.”

The Appellate Division ruled that the fact that Corporation was not on the two public lists of noncompliant entities issued by Budget between December 2011 and July 2013 neither changed Budget's determination nor Corporation's obligation to comply with the Public Authorities Law. Further, said the court, “Budget's acknowledgment of its authority to reconsider did not render its determination nonfinal or extend the statute of limitations.”

* Cardo v Sielaff, 186 A.D.2d 424

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 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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