Lehner v. Humphreys

Appellate Division of the Supreme Court of New York

Lehner v. Humphreys

156 A.D.2d 867, 550 N.Y.S.2d 88, 1989 N.Y. App. Div. LEXIS 15876

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 1989·Published·Cited by 3 cases

Opinion

Kane, J.

P. Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to review a determination of respondent which denied petitioner’s application for a pistol permit.

On July 2, 1987, petitioner filed an application for a pistol permit in Madison County. After reviewing petitioner’s appli[868]*868cation and the accompanying materials, respondent denied petitioner’s request for a permit on May 18, 1988. By letter received by respondent on June 8, 1988, petitioner requested reconsideration of his permit application. Respondent replied by letter dated June 21, 1988, informing petitioner that the decision rendered on May 18,1988 would stand.

By letter received by respondent on December 30, 1988, petitioner’s counsel asked respondent to execute an order stating that a final decision had been rendered on May 18, 1988. The resulting order was signed by respondent on January 13, 1989 and filed with the Madison County Clerk on February 21, 1989. This CPLR article 78 proceeding was commenced on or about May 8, 1989.

The petition is dismissed as time barred (see, CPLR 217). The administrative determination here was final and binding on May 18, 1988, when respondent denied petitioner’s permit application, or, at the latest, when respondent informed petitioner on June 21, 1988 that the denial would stand (see, Matter of Cabrini Med. Center v Axelrod, 107 AD2d 965). Respondent’s signing of an order to the same effect on January 13, 1989 did not serve to extend the period of limitations. We find no requirement that a pistol licensing officer who is also a County Judge must issue an order in his judicial capacity when denying a permit application (see, Penal Law §265.00 [10]; §400.00 [4-a]). Accordingly, this petition, commenced well over 10 months from respondent’s denial of petitioner’s permit application, is untimely.

Petition dismissed, without costs. Kane, J. P., Weiss, Yesawich, Jr., Mercure and Harvey, JJ., concur.

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Kane, J.

P. Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to review a determination of respondent which denied petitioner’s application for a pistol permit.

On July 2, 1987, petitioner filed an application for a pistol permit in Madison County. After reviewing petitioner’s appli[868]*868cation and the accompanying materials, respondent denied petitioner’s request for a permit on May 18, 1988. By letter received by respondent on June 8, 1988, petitioner requested reconsideration of his permit application. Respondent replied by letter dated June 21, 1988, informing petitioner that the decision rendered on May 18,1988 would stand.

By letter received by respondent on December 30, 1988, petitioner’s counsel asked respondent to execute an order stating that a final decision had been rendered on May 18, 1988. The resulting order was signed by respondent on January 13, 1989 and filed with the Madison County Clerk on February 21, 1989. This CPLR article 78 proceeding was commenced on or about May 8, 1989.

The petition is dismissed as time barred (see, CPLR 217). The administrative determination here was final and binding on May 18, 1988, when respondent denied petitioner’s permit application, or, at the latest, when respondent informed petitioner on June 21, 1988 that the denial would stand (see, Matter of Cabrini Med. Center v Axelrod, 107 AD2d 965). Respondent’s signing of an order to the same effect on January 13, 1989 did not serve to extend the period of limitations. We find no requirement that a pistol licensing officer who is also a County Judge must issue an order in his judicial capacity when denying a permit application (see, Penal Law §265.00 [10]; §400.00 [4-a]). Accordingly, this petition, commenced well over 10 months from respondent’s denial of petitioner’s permit application, is untimely.

Petition dismissed, without costs. Kane, J. P., Weiss, Yesawich, Jr., Mercure and Harvey, JJ., concur.

Lehner v. Humphreys, 156 A.D.2d 867, 550 N.Y.S.2d 88, 1989 N.Y. App. Div. LEXIS 15876 (N.Y. Ct. App. 1989).

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