Clemens v. Matera

40 A.D.2d 914, 337 N.Y.S.2d 845, 1972 N.Y. App. Div. LEXIS 3352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1972
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered March 6, 1972 in Rensselaer County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to set aside a Coroner’s report and directed that a new investigation be conducted. The body of James Clemens was discovered in Ms apartment on November 9, 1970. The Coroner’s physician filed a certificate of death by suicide with the Office of Vital Statistics for the City of Troy on November 10, 1970. An article 78 proceeding was commenced on January 24, 1972 to set aside the report of the Coroner and direct that a new investigation be conducted. Appellant moved to dismiss the petition as barred by the Statute of Limitations. We conclude that the four-month statute commenced to run from the date of the filing of the death certificate. The proceeding was, therefore, not timely commenced and is barred by the Statute of Limitations. Judgment reversed, on the law, and petition dismissed, without costs. Herlihy, P. J., Sweeney, Simons, Kane and Reynolds, JJ., concur.