Davis v. City of New York

210 A.D.2d 137, 620 N.Y.S.2d 353

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered March 26, 1993, which, inter alia, granted the defendants9 cross motion to dismiss the complaint on Statute of Limitations grounds (CPLE 217), unanimously affirmed, without costs.

The claim underlying this declaratory judgment action is one to compel the defendants to allow plaintiffs additional terminal leave benefits. As such, the denial of such benefits is a matter which should and could be raised in a CPLR article 78 proceeding (Matter of Fodera v City of New York, 193 AD2d 406, lv denied 82 NY2d 660), and is therefore governed by the four-month Statute of Limitations (Solnick v Whalen, 49 NY2d 224). Since each of the plaintiffs herein was advised of rejection of their claims more than four months prior to commencement of this action, the IAS Court properly dismissed the declaratory judgment action on Statute of Limitations grounds pursuant to CPLR 217. Plaintiffs’ reliance on Koerner v State of New York, Pilgrim Psychiatric Ctr. (62 NY2d 442) and Croken v County of Nassau (90 AD2d 492) is misplaced. In Croken, the employee was suing for back wages allegedly owed him and was not seeking retirement benefits from a governmental agency. In Koerner, the discharged employee was specifically suing under the Human Rights Law for discriminatory discharge, a matter not appropriately pursued via an article 78 proceeding.

We have considered plaintiffs’ other contentions and similarly find them to be without merit. Concur—Murphy, P. J., Sullivan, Nardelli and Tom, JJ.