Alliano v. Adams

2 A.D.2d 532, 157 N.Y.S.2d 119, 1956 N.Y. App. Div. LEXIS 3717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1956
• Status: Published

Opinion

Per Curiam.

The police commissioner dismissed the petitioner from the position of patrolman on the last day of his probationary service. The circumstances thereof are not pertinent to the determination of this appeal. An article 78 proceeding was initiated some 20 months after the termination of his services.

Special Term overruled the appellants’ contention that the application was barred by section 1286 of the Civil Practice Act and vacated and annulled the determination of the police commissioner. The petitioner’s discharge was found to be an improper exercise of discretion and the refusal to reinstate him illegal and a continuing wrong.

On the issue of timeliness, the test to be applied is whether the action of the commissioner was “ a determination involving judgment or discretion, as distinguished from a demand for ministerial action in accordance with law.” (Matter of Foy v. Brennan, 285 App. Div. 669, 673.)

Patently, the termination by the police commissioner of petitioner’s services was an affirmative act involving an exercise of judgment and discretion within the definition of subdivision 2 of section 1284 of the Civil Practice Act. Proper or improper, it constituted a final determination and the theory of a continuing wrong is not applicable. The petitioner’s right to review for arbitrariness was limited to a four-month period following the effective date of the discharge. (Civ. Prac. Act, § 1286.)

Accordingly, the order of Special Term should be reversed and the petition dismissed.

Breitel, J. P., Botein, Rabin, Frank and Valentb, JJ., concur;

Order unanimously reversed, with $20 costs and disbursements to the appellants, and the petition dismissed.