Mellor v. Shepard

Appellate Division of the Supreme Court of New York

Mellor v. Shepard

191 A.D.2d 235, 594 N.Y.S.2d 253

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

DecidedMarch 9, 1993

StatusPublished

Cited by1 cases

This text of 191 A.D.2d 235 (Mellor v. Shepard) 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.

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Mellor v. Shepard, 191 A.D.2d 235, 594 N.Y.S.2d 253 (N.Y. Ct. App. 1993).

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Opinion

Judgment, Supreme Court, New York County (Walter Schackman, J.), entered July 29, 1991, which, in a proceeding pursuant to CPLR article 78 seeking, inter alia, to compel respondent to accept petitioner’s withdrawal of resignation from respondent’s employment, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs.

Since respondent’s refusal to accept petitioner’s withdrawal of resignation was a discretionary act as to which petitioner was not entitled to a hearing, the proceeding is in the nature of mandamus to review (see, Matter of De Milio v Borghard, 55 NY2d 216), governed by a four-month period of limitations that began to run after respondent rejected petitioner’s letter seeking to withdraw his earlier letter of resignation. Petitioner fails to demonstrate any misrepresentation by respondent that kept him from commencing this proceeding until a year after respondent’s rejection letter, which would estop respondent from asserting the Statute of Limitations as a defense (cf., Robinson v City of New York, 24 AD2d 260). Concur — Ellerin, J. P., Kupferman, Ross and Kassal, JJ.

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Judgment, Supreme Court, New York County (Walter Schackman, J.), entered July 29, 1991, which, in a proceeding pursuant to CPLR article 78 seeking, inter alia, to compel respondent to accept petitioner’s withdrawal of resignation from respondent’s employment, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs.

Since respondent’s refusal to accept petitioner’s withdrawal of resignation was a discretionary act as to which petitioner was not entitled to a hearing, the proceeding is in the nature of mandamus to review (see, Matter of De Milio v Borghard, 55 NY2d 216), governed by a four-month period of limitations that began to run after respondent rejected petitioner’s letter seeking to withdraw his earlier letter of resignation. Petitioner fails to demonstrate any misrepresentation by respondent that kept him from commencing this proceeding until a year after respondent’s rejection letter, which would estop respondent from asserting the Statute of Limitations as a defense (cf., Robinson v City of New York, 24 AD2d 260). Concur — Ellerin, J. P., Kupferman, Ross and Kassal, JJ.

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Bluebook (online)

191 A.D.2d 235, 594 N.Y.S.2d 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mellor-v-shepard-nyappdiv-1993.

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