Gaines v. Abate

Appellate Division of the Supreme Court of New York

Gaines v. Abate

216 A.D.2d 16, 627 N.Y.S.2d 913, 1995 N.Y. App. Div. LEXIS 6025

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 1995

StatusPublished

This text of 216 A.D.2d 16 (Gaines v. Abate) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaines v. Abate, 216 A.D.2d 16, 627 N.Y.S.2d 913, 1995 N.Y. App. Div. LEXIS 6025 (N.Y. Ct. App. 1995).

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Opinion

Judgment, Supreme Court, New York County (Joan Lobis, J.), entered January 19, 1994, which dismissed petitioner’s CPLR article 78 petition seeking to compel respondents to apply Military Law § 243 to the determination of his seniority for the purposes of increasing his compensation, unanimously affirmed, without costs.

The IAS Court correctly dismissed the petition as time-barred under CPLR 217 because the action was not commenced within four months after petitioner’s previous demands for the relief requested in the petition were rejected by respondents. Since petitioner previously sought the relief requested in the petition, there is no merit to his argument that his petition constitutes a first demand for limitations purposes. In any event, even if the petition were not time-barred, it fails to state a cause of action (Mulligan v City of New York, 194 Misc 579, [17]*17affd 275 App Div 795, affd 300 NY 541). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Joan Lobis, J.), entered January 19, 1994, which dismissed petitioner’s CPLR article 78 petition seeking to compel respondents to apply Military Law § 243 to the determination of his seniority for the purposes of increasing his compensation, unanimously affirmed, without costs.

The IAS Court correctly dismissed the petition as time-barred under CPLR 217 because the action was not commenced within four months after petitioner’s previous demands for the relief requested in the petition were rejected by respondents. Since petitioner previously sought the relief requested in the petition, there is no merit to his argument that his petition constitutes a first demand for limitations purposes. In any event, even if the petition were not time-barred, it fails to state a cause of action (Mulligan v City of New York, 194 Misc 579, [17]*17affd 275 App Div 795, affd 300 NY 541). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.

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Bluebook (online)

216 A.D.2d 16, 627 N.Y.S.2d 913, 1995 N.Y. App. Div. LEXIS 6025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaines-v-abate-nyappdiv-1995.

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