Chamberlain v. Regan

52 A.D.2d 1039, 384 N.Y.S.2d 578, 1976 N.Y. App. Div. LEXIS 12947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1976
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: In this article 78 proceeding seeking mandamus relief directing respondent to give meaningful reasons for denial of parole, petitioner appeals from judgment dismissing his petition on the grounds that it was not timely commenced within the four-month period prescribed by CPLR 217. Considering the mandamus nature of petitioner’s proceeding, the four-month Statute of Limitations under CPLR 217 commenced to run, not from the date of respondent’s denial of parole, but from the date of respondent’s refusal to perform a duty imposed by law (Austin v Board of Higher Educ., 5 NY2d 430, 442; Matter of Pfingst v Levitt, 44 AD2d 157, 159). The aggrievement asserted by petitioner was clearly an alleged failure of respondent to perform a duty imposed by law (Matter of Fancher v Regan, 46 AD2d 1009; Matter of Cummings v Regan, 45 AD2d 222, rev on grounds of mootness 36 NY2d 969). On the time chronology reflected in this record, petitioner’s proceeding was timely commenced if respondent’s letter of April 1, 1975 is interpreted as an "unresponsive reply” to petitioner’s demand. However, under the principles enunciated in Cummings (supra), such characterization of respondent’s April 1, 1975 letter cannot be sustained. The content thereof amply satisfies the requirements of Cummings, rendering untimely the mandamus relief sought and warranting the judgment of dismissal entered by Special Term. (Appeal from judgment of Cayuga Supreme Court dismissing article 78 proceeding.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.