Kleinman v. Kaplan

Appellate Division of the Supreme Court of New York

Kleinman v. Kaplan

20 A.D.2d 594, 245 N.Y.S.2d 268, 1963 N.Y. App. Div. LEXIS 2652

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

DecidedDecember 20, 1963

StatusPublished

Cited by6 cases

This text of 20 A.D.2d 594 (Kleinman v. Kaplan) 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

Kleinman v. Kaplan, 20 A.D.2d 594, 245 N.Y.S.2d 268, 1963 N.Y. App. Div. LEXIS 2652 (N.Y. Ct. App. 1963).

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Opinion

Although petitioners who held civil service appointments as probation officers in Queens County knew on April 1, 1959 of the promotion of three probation officers to the positions of probation supervisors, which appointments they contend were invalid, they delayed the institution of this article 78 proceeding to annul and restrain such action for more than three one one-half years (Nov. 9, 1962). The time limit for the institution of a proceeding in the nature of mandamus does not expire until four months after demand and refusal to perform a duty (Civ. Prac. Act, § 1286); but it is firmly settled that a petitioner cannot indefinitely postpone the time to seek relief by delaying the demand. (Matter of Amsterdam City Hosp. v. Hoffman, 278 App. Div. 292.) In Matter of Cash v. Bates (301 N. Y. 258), where the civil service appointments were held invalid, the argument that the petition must be dismissed for “ untimeliness ” was rejected in view of the continuing failure of respondent to obey the constitutional directions in respect of civil service appointments. But this treatment of “ untimeliness ” cannot reasonably be read to mean that under all circumstances a petitioner has a right to bring mandamus to challenge civil service appointments whenever he wishes with no possibility that he may be barred by his own laches. The court, with Gash cited to it as a precedent, expressly rejected such a possibility in Austin v. Board of Higher Educ. (5 N Y 2d 430, 442) . This was not a civil service ease, but the principle laid down is applicable to the general problem of undue delay constituting laches. An aggrieved party may not “ extend indefinitely ” the period during which he is required to take action “ by delaying making his demand ”. Circumstances may change from ease to ease, but the delay here of over three years in the institution of the proceeding in our opinion bars it for laches. Order unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.

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Although petitioners who held civil service appointments as probation officers in Queens County knew on April 1, 1959 of the promotion of three probation officers to the positions of probation supervisors, which appointments they contend were invalid, they delayed the institution of this article 78 proceeding to annul and restrain such action for more than three one one-half years (Nov. 9, 1962). The time limit for the institution of a proceeding in the nature of mandamus does not expire until four months after demand and refusal to perform a duty (Civ. Prac. Act, § 1286); but it is firmly settled that a petitioner cannot indefinitely postpone the time to seek relief by delaying the demand. (Matter of Amsterdam City Hosp. v. Hoffman, 278 App. Div. 292.) In Matter of Cash v. Bates (301 N. Y. 258), where the civil service appointments were held invalid, the argument that the petition must be dismissed for “ untimeliness ” was rejected in view of the continuing failure of respondent to obey the constitutional directions in respect of civil service appointments. But this treatment of “ untimeliness ” cannot reasonably be read to mean that under all circumstances a petitioner has a right to bring mandamus to challenge civil service appointments whenever he wishes with no possibility that he may be barred by his own laches. The court, with Gash cited to it as a precedent, expressly rejected such a possibility in Austin v. Board of Higher Educ. (5 N Y 2d 430, 442) . This was not a civil service ease, but the principle laid down is applicable to the general problem of undue delay constituting laches. An aggrieved party may not “ extend indefinitely ” the period during which he is required to take action “ by delaying making his demand ”. Circumstances may change from ease to ease, but the delay here of over three years in the institution of the proceeding in our opinion bars it for laches. Order unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.

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Bluebook (online)

20 A.D.2d 594, 245 N.Y.S.2d 268, 1963 N.Y. App. Div. LEXIS 2652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinman-v-kaplan-nyappdiv-1963.

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