De Luca v. Kirby

83 A.D.2d 621, 441 N.Y.S.2d 1005, 1981 N.Y. App. Div. LEXIS 14912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 1981
• Status: Published

Opinion

In an action, inter alia, to compel the respondent Suffolk County Commissioner of Social Services to provide plaintiff Jennie De Luca with medical assistance, plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 18, 1980, which, inter alia, on defendant’s motion to dismiss the complaint, (1) deemed the action to be in the nature of a CPLR article 78-proceeding challenging the commissioner’s refusal to .grant the female plaintiff medical assistance, and (2) dismissed the “proceeding” as being untimely commenced. Order reversed, without costs or disbursements, motion denied, and case remanded to Special Term for further proceedings consistent herewith. Construing the complaint broadly to challenge the constitutionality of the statute upon which the commissioner purported to rely in denying plaintiff Jennie De Luca’s application for medical assistance, and for a declaration to that effect and related relief, it was error for Special Term to dismiss the complaint as having been time barred pursuant to the four-month Statute of Limitations set forth in CPLR 217 (see Press v County of Monroe, 50 NY2d 695, 702; Matter of Ames Volkswagen v State Tax Comm., 47 NY2d 345, 348; Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184, 191-193; cf. Lutheran Church in Amer. v City of New York, 27 AD2d 237). We pass upon no other issue. Titone, J. P., Mangano, Gulotta and Thompson, JJ., concur.