A job seeker [Applicant] appealed the decision of Supreme Court granting the prospective employer's [Agency] motion the dismiss Applicant's CPLR Article 78 petition seeking a court order annulling the Agency's decision not to hire the Applicant and directing the Agency to reconsider his application for employment.
The Appellate Division Unanimously affirmed the Supreme Court's action explaining that the lower court had "properly dismissed this proceeding as untimely" as it had been commenced more than four months after the Agency's determination to deny Applicant's renewed application for employment became final and binding on the Applicant for the position.
The court rejected Applicant's argument that the statute of limitations period did not begin to run on the date of the General Municipal Law §50-h hearing* held in connection with a notice of claim Applicant had filed with the Agency concerning his claim for damages arising from its alleged discrimination in violation of Correction Law §752,** noting that one cannot "circumvent the statute of limitations by demanding that an agency change its determination and seeking [a writ of] mandamus to compel when that demand is refused."***
The Appellate Division characterized the Applicant's notice of claim as constituting "at best a plea for reconsideration" which effort "neither tolled the Statute of Limitations nor began anew the time within which review could be sought," citing Miller v McGough, 97 AD2d 416. Further, noted the court, the record does not support Applicant's claim that he made a demand for compliance with a duty enjoined on the Agency by law at the §50-h hearing.
* § 50-h, Examination of claims, sets out the procedures to be followed in the event an individual files a notice of claim is filed against a political subdivision of the State involving the occurrence and extent of the injuries or damages for which claim is made.
** §752 of the Corrections Law prohibits "Unfair discrimination against persons previously convicted of one or more criminal offenses.
*** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_05069.htm