In this CPLR Article 78 action Petitioner sought judicial review of a determination of the Town Board [Town] which had adopted the report and recommendation of a disciplinary hearing officer's finding accused Petitioner guilty of 12 specifications of misconduct and incompetence, and terminated the Petitioner's employment as a police officer. Supreme Court, however, issued an order and judgment granting the Town's motion to dismiss the Petitioner's Article 78 action challenging the Town's decision as untimely and dismissed Petitioner's Article 78 action. Petitioner then appealed the Supreme Court's ruling.
The Appellate Division affirmed the Supreme Court's ruling, with costs, explaining:
1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired;
2. "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period; and
3. "Unless a shorter time is provided in the law authorizing the proceeding, a four-month statute of limitations is generally applicable to proceedings pursuant to CPLR Article 78".
In this instance, the Count's Police Act, as amended, stated that the review of a disciplinary action, the "conviction of any member of such police force" shall be presented to the court "within sixty days after the conviction".
The Appellate Division's decision, noted that the Town "had established, prima facie", that the instant proceeding was time-barred by showing that the petition was not filed within 60 days from the Town's final determination and Petitioner failed to raise a question of fact as to whether the proceeding was timely commenced," opined that "[I]t is well settled that an argument 'may not be raised for the first time before the courts in an article 78 proceeding'".
Finding that Petitioner failed to raise his contention that his disciplinary proceeding was not governed by the County Police Act until the Petitioner commenced this Article 78 proceeding, the Appellate Division opined that Supreme Court should not have considered that issue and then concluded that Supreme Court had properly granted the Town's motion pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition as time-barred and correctly dismissed the proceeding.
Click HERE to access the Appellate Division's decision posted on the Internet.