Hommel v. Carey

Appellate Division of the Supreme Court of New York

Hommel v. Carey

66 A.D.2d 967, 412 N.Y.S.2d 57, 1978 N.Y. App. Div. LEXIS 14309

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

DecidedDecember 28, 1978

StatusPublished

This text of 66 A.D.2d 967 (Hommel v. Carey) 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

Hommel v. Carey, 66 A.D.2d 967, 412 N.Y.S.2d 57, 1978 N.Y. App. Div. LEXIS 14309 (N.Y. Ct. App. 1978).

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Opinions

Appeals, by permission, from two orders of the Supreme Court at Special Term, entered September 20, 1977 and February 27, 1978 in Albany County, which transferred this proceeding pursuant to CPLR article 78 to a Trial Term of the Supreme Court and denied a motion by appellants for leave to renew. There is nothing in the record to indicate that petitioners made a demand prior to June 18, 1976, when they filed a grievance. Construing the filing of the grievance as a demand, the four-month Statute of Limitations could not begin to run until there has been a refusal to perform as demanded (CPLR 217). In our view, such a refusal could not have occurred until the decision at the third step of the grievance procedure on September 3, 1976 and, accordingly, this proceeding, commenced December 14, 1976, was timely. While the issue here is somewhat clouded by the initial, mistaken assumption of all parties that the dispute constituted a contract grievance, that factor should not serve to deprive petitioners of their day in court. Special Term transferred the matter to a Trial Term, concluding that a question of fact existed as to which paragraphs, if any, of the collective bargaining agreement apply to the issues raised by petitioners. Such a question, however, is initially one of law since it involves the construction of a contract and, accordingly, the matter should be remitted to Special Term. Order, entered September 20, 1977, modified, on the law and the facts, by deleting the second decretal paragraph thereof, and, as so modified, affirmed, without costs. Order entered February 27, 1978, affirmed, without costs. Mahoney, P. J., Greenblott, Staley, Jr., and Main, JJ., concur.

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Appeals, by permission, from two orders of the Supreme Court at Special Term, entered September 20, 1977 and February 27, 1978 in Albany County, which transferred this proceeding pursuant to CPLR article 78 to a Trial Term of the Supreme Court and denied a motion by appellants for leave to renew. There is nothing in the record to indicate that petitioners made a demand prior to June 18, 1976, when they filed a grievance. Construing the filing of the grievance as a demand, the four-month Statute of Limitations could not begin to run until there has been a refusal to perform as demanded (CPLR 217). In our view, such a refusal could not have occurred until the decision at the third step of the grievance procedure on September 3, 1976 and, accordingly, this proceeding, commenced December 14, 1976, was timely. While the issue here is somewhat clouded by the initial, mistaken assumption of all parties that the dispute constituted a contract grievance, that factor should not serve to deprive petitioners of their day in court. Special Term transferred the matter to a Trial Term, concluding that a question of fact existed as to which paragraphs, if any, of the collective bargaining agreement apply to the issues raised by petitioners. Such a question, however, is initially one of law since it involves the construction of a contract and, accordingly, the matter should be remitted to Special Term. Order, entered September 20, 1977, modified, on the law and the facts, by deleting the second decretal paragraph thereof, and, as so modified, affirmed, without costs. Order entered February 27, 1978, affirmed, without costs. Mahoney, P. J., Greenblott, Staley, Jr., and Main, JJ., concur.

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Bluebook (online)

66 A.D.2d 967, 412 N.Y.S.2d 57, 1978 N.Y. App. Div. LEXIS 14309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hommel-v-carey-nyappdiv-1978.