Matter of Strax v. City of New York

2019 NY Slip Op 4177

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2019
• Docket: Index No. 17123/14
• Status: Published

Opinion

Matter of Strax v City of New York (2019 NY Slip Op 04177)

Matter of Strax v City of New York

2019 NY Slip Op 04177

Decided on May 29, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 29, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
HECTOR D. LASALLE
BETSY BARROS
LINDA CHRISTOPHER, JJ.

2015-12533
(Index No. 17123/14)

[*1]In the Matter of Lisa R. Strax, appellant,

v

City of New York, et al., respondents.

Lisa Strax, Whitestone, NY, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, NY (Fay S. Ng and Tahirih M. Sadrieh of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Employees' Retirement System dated January 29, 2014, which found the petitioner's effective date of retirement to be January 24, 2014, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Allan B. Weiss), dated October 26, 2015. The order and judgment granted the respondents' motion pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition, and, in effect, dismissed the proceeding.

ORDERED that the order and judgment is affirmed, without costs.

We agree with the Supreme Court's determination that the commencement of this proceeding pursuant to CPLR article 78 was untimely (see CPLR 217[1]). The petitioner did not commence the proceeding within four months of receiving the January 29, 2014, determination informing her of the effective date of her retirement (see Matter of Yarbough v Franco, 95 NY2d 342). The petitioner's subsequent requests for reconsideration of the effective date of her retirement did not extend or toll the statute of limitations (see Matter of Mercado v Rodriguez, 153 AD3d 1534; Matter of Surton Contr. Corp. v New York City School Constr. Auth., 81 AD3d 654).

In light of our determination, we need not reach the parties' remaining contentions.

DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court