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February 28, 2019

Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action


Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action
Stack v City of Glens Falls, 2019 NY Slip Op 01286, Appellate Division, Third Department

The City of Glens Falls [City] served disciplinary charges upon one of its employees [Appellant]. The hearing officer had found Appellant guilty of two disciplinary charges and recommended termination as the penalty to be imposed. 

At a special meeting on October 3, 2016, the City's Common Council adopted the hearing officer's findings and imposed the recommended penalty of termination on Appellant. Subsequently a letter was sent to Appellant by the City's Mayor on October 11, 2016 reporting the Common Council's action. When Appellant filed an Article 78 petition in Supreme Court challenging the City's determination on February 10, 2017, the City moved to dismiss Appellant's petition as time barred.* Supreme Court grant the City' motion and Appellant appealed the ruling to the Appellate Division.

The Appellate Division reversed the lower court's ruling. Noting that a special proceeding such as the one brought by Appellant "must be commenced within four months after the determination to be reviewed becomes final and binding in its impact upon a petitioner", the court explained that the party asserting the statute of limitations defense must establish that clear notice of the determination was given to the petitioner "more than four months prior to" the commencement of his or her Article 78 proceeding. Further, any ambiguity in the communications claimed have constituted such notice "must be resolved in favor of the petitioner."

The Appellate Division's decision states in this instance neither the Appellant, who had been suspended without pay pending the outcome of the disciplinary proceedings, nor Appellant's attorney, received any notification of the City's determination. After learning from a newspaper reporter that the Common Council had held a special meeting on October 3, 2016 to consider the hearing officer's report and recommendation regarding the disciplinary action taken against Appellant, Appellant's attorney demanded to know Appellant's status. The City provided a newspaper article that described the determination and quoted Appellant's counsel as promising legal action.

In the words of the Appellate Division, "the confusion of [Appellant] and her counsel is evident in their emails during this period, with [Appellant] noting on October 7, 2016 the 'odd' absence of any 'word from City Hall about [her] status' and [her] counsel complaining to [the City Attorney] on October 11, 2016 that the City had still not provided 'any notification' of the determination and demanding to know [Appellant's] status." Appellant, in an affidavit, stated that "she was befuddled by [the City's] silence and did not realize that she had been terminated as of October 3, 2016 until she received the October 11, 2016 letter" from the Mayor.

The Appellate Division ruled that Appellant did not receive an "unambiguous" and "certain" final determination that would trigger the running of the statute of limitations for perfecting the filing of a CPLR Article 78 action until October 11, 2016. Accordingly, the Appellate Division said that what has been demonstrated is "uncertainty caused by [the City's] inaction that must be resolved against [the City]."

Finding that Appellant commenced this proceeding less than four months after receiving clear notice of the City's determination as reflected in the Mayor's letter dated October 11, 2016, the Appellate Division held that Appellant's Article 78 action was timely filed. Reversing the Supreme Court's decision on the law, the matter was remitted to the lower court to permit the City to serve an answer on Appellant within 20 days of the date of the Appellate Division's decision.

* As a general rule a statute of limitations for bringing a timely action begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01286.htm


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