August 13, 2021

The untimely filing of a CPLR Article 78 petition bars the court from considering the merits of the issue

An employee [Plaintiff] challenged his employer's [Employer] calculation of his pension is a challenge to an administrative determination. According, as the Appellate Division noted, any legal action should be brought pursuant to CPLR Article 78 and is subject to the four-month statute of limitations to file such a petition set out in §217[1] of the Civil Practice Law and Rules [CPLR].

Employer had excluded Plaintiff's "summer pay" from its calculation of Plaintiff's pension benefits. This calculation became "final and binding" on the Plaintiff when he received his annual "benefits letter" from the Employer. Further, noted the Appellate Division, Employer's reply to Plaintiff's inquiry concerning the calculation of his retirement allowance that Plaintiff submitted almost six years later indicating that "there is nothing further than can be done" did not serve to extend the controlling limitations period.

Similarly, as was noted in Raykowski v NYC DOT, 259 AD2d 367, a request for reconsideration of an administrative determination does not extend the statute of limitations for perfecting an appeal. 

CLICK HEREto access the Appellate Division's decision in the instant case.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.