Frank v. Levitt

New York Court of Appeals

Frank v. Levitt

392 N.E.2d 882, 47 N.Y.2d 853, 418 N.Y.S.2d 769, 1979 N.Y. LEXIS 2128

DecidedJune 7, 1979

StatusPublished

This text of 392 N.E.2d 882 (Frank v. Levitt) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. Levitt, 392 N.E.2d 882, 47 N.Y.2d 853, 418 N.Y.S.2d 769, 1979 N.Y. LEXIS 2128 (N.Y. 1979).

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Opinion

[855]*855OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the proceeding dismissed.

Petitioner seeks judicial review of determinations of the State Comptroller with respect to applications for benefits under the Policemen’s and Firemen’s Retirement System and of the Comptroller’s underlying position that an application for ordinary disability retirement allowance for a policeman member of the system may not be made by the head of the department in which the policeman member is employed without his consent (Retirement and Social Security Law, § 362, subd a). Subdivision d of section 374 of the Retirement and Social Security Law provides that determinations of the Comptroller "shall be subject to review only as provided in article seventy-eight of the civil practice law and rules” (emphasis added). Accordingly, the present application for judicial relief, denominated an action for a declaratory judgment, should have been treated as an article 78 proceeding (CPLR 103, subd [c]). As such it should have been dismissed on respondents’ motion, on the ground that the proceeding as to George Pearsall was barred by the four-month Statute of Limitations (CPLR 217) and for failure to exhaust administrative remedies as to the other police officers involved.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.

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[855]*855OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the proceeding dismissed.

Petitioner seeks judicial review of determinations of the State Comptroller with respect to applications for benefits under the Policemen’s and Firemen’s Retirement System and of the Comptroller’s underlying position that an application for ordinary disability retirement allowance for a policeman member of the system may not be made by the head of the department in which the policeman member is employed without his consent (Retirement and Social Security Law, § 362, subd a). Subdivision d of section 374 of the Retirement and Social Security Law provides that determinations of the Comptroller "shall be subject to review only as provided in article seventy-eight of the civil practice law and rules” (emphasis added). Accordingly, the present application for judicial relief, denominated an action for a declaratory judgment, should have been treated as an article 78 proceeding (CPLR 103, subd [c]). As such it should have been dismissed on respondents’ motion, on the ground that the proceeding as to George Pearsall was barred by the four-month Statute of Limitations (CPLR 217) and for failure to exhaust administrative remedies as to the other police officers involved.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.

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Bluebook (online)

392 N.E.2d 882, 47 N.Y.2d 853, 418 N.Y.S.2d 769, 1979 N.Y. LEXIS 2128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-levitt-ny-1979.

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