Magat v. County of Rockland

265 A.D.2d 483, 697 N.Y.S.2d 114, 1999 N.Y. App. Div. LEXIS 10429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated December 23, 1997, which, after a hearing, terminated his employment as a Corrections Officer, the petitioner appeals from (1) a judgment of the Supreme Court, Rockland County (Miller, J.), dated June 12, 1998, which, upon granting the respondents’ motion to dismiss the proceeding as untimely, dismissed the proceeding, and (2) so much of an order of the same court, dated August 17, 1998, as denied his motion, in effect, for reargument.

Ordered that the appeal from the order is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The Supreme Court correctly granted the respondents’ motion to dismiss the - proceeding as untimely because the petitioner commenced it one day after the four-month Statute of Limitations had expired (see, CPLR 217; Charwat v Kustas, 233 AD2d 288, 289). Contrary to the petitioner’s claim, the Supreme Court was without authority to extend the Statute of Limitations (see, CPLR 201; Bolovis v Polis Contr. Corp., 235 AD2d 323; Matter of Cartwright v Rose, 162 AD2d 451, 452; Roldan v Allstate Ins. Co., 149 AD2d 20, 33). Moreover, the respondents sufficiently pleaded the Statute of Limitations as a defense (see, Immediate v St. John’s Queens Hosp., 48 NY2d 671, 673). S. Miller, J. P., Sullivan, Friedmann and Feuerstein, JJ., concur.