Musilli v. New York State & Local Police & Fire Department System

Appellate Division of the Supreme Court of New York

Musilli v. New York State & Local Police & Fire Department System

249 A.D.2d 826, 672 N.Y.S.2d 151, 1998 N.Y. App. Div. LEXIS 4535

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

DecidedApril 23, 1998

StatusPublished

Cited by3 cases

This text of 249 A.D.2d 826 (Musilli v. New York State & Local Police & Fire Department System) 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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Musilli v. New York State & Local Police & Fire Department System, 249 A.D.2d 826, 672 N.Y.S.2d 151, 1998 N.Y. App. Div. LEXIS 4535 (N.Y. Ct. App. 1998).

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Opinion

—Carpinello, J.

Appeal from a judgment of the Supreme Court (Kane, J.), entered September 8, 1997 in Albany County, which, in a proceeding pursuant to [827]*827CPLR article 78, granted respondents’ motion to dismiss the petition as time barred.

Claiming to have suffered a disabling injury as a result of his firefighting activities, petitioner applied to respondent New York State and Local Police and Fire Retirement System for performance of duty disability retirement benefits (see, Retirement and Social Security Law § 363 [c]). By letter dated February 4, 1997, petitioner’s attorney was notified that respondent Comptroller denied the application. The letter further advised the attorney of petitioner’s right to challenge the determination within four months. By a separate letter dated February 19, 1997, addressed to petitioner personally, petitioner was advised of the Comptroller’s denial of his application and that he had “four months from the date of this letter to commence a proceeding” (emphasis supplied).

The sole issue on this appeal is the propriety of Supreme Court’s judgment dismissing the instant CPLR article 78 proceeding, which was commenced on June 18, 1997, as time barred. Since petitioner commenced this proceeding within four months of the February 19, 1997 letter, Supreme Court erred in granting respondents’ motion to dismiss the petition as untimely (see, CPLR 217). Any ambiguity or uncertainty created by a public body concerning when a determination becomes “final and binding” (CPLR 217) should be resolved against that body (see, e.g., Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 357; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126-127). While the initial letter to petitioner’s attorney was clearly a “final and binding” determination within the meaning of CPLR 217, the second letter, which was dated 15 days later and affirmatively represented that petitioner had four months from that date to commence a proceeding challenging the Comptroller’s determination, created an ambiguity as to when the Statute of Limitations began to run.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is reversed, on the law, with costs, and motion denied.

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—Carpinello, J.

Appeal from a judgment of the Supreme Court (Kane, J.), entered September 8, 1997 in Albany County, which, in a proceeding pursuant to [827]*827CPLR article 78, granted respondents’ motion to dismiss the petition as time barred.

Claiming to have suffered a disabling injury as a result of his firefighting activities, petitioner applied to respondent New York State and Local Police and Fire Retirement System for performance of duty disability retirement benefits (see, Retirement and Social Security Law § 363 [c]). By letter dated February 4, 1997, petitioner’s attorney was notified that respondent Comptroller denied the application. The letter further advised the attorney of petitioner’s right to challenge the determination within four months. By a separate letter dated February 19, 1997, addressed to petitioner personally, petitioner was advised of the Comptroller’s denial of his application and that he had “four months from the date of this letter to commence a proceeding” (emphasis supplied).

The sole issue on this appeal is the propriety of Supreme Court’s judgment dismissing the instant CPLR article 78 proceeding, which was commenced on June 18, 1997, as time barred. Since petitioner commenced this proceeding within four months of the February 19, 1997 letter, Supreme Court erred in granting respondents’ motion to dismiss the petition as untimely (see, CPLR 217). Any ambiguity or uncertainty created by a public body concerning when a determination becomes “final and binding” (CPLR 217) should be resolved against that body (see, e.g., Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 357; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126-127). While the initial letter to petitioner’s attorney was clearly a “final and binding” determination within the meaning of CPLR 217, the second letter, which was dated 15 days later and affirmatively represented that petitioner had four months from that date to commence a proceeding challenging the Comptroller’s determination, created an ambiguity as to when the Statute of Limitations began to run.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is reversed, on the law, with costs, and motion denied.

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249 A.D.2d 826, 672 N.Y.S.2d 151, 1998 N.Y. App. Div. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musilli-v-new-york-state-local-police-fire-department-system-nyappdiv-1998.

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