Nelson v. Board of Collective Bargaining

Appellate Division of the Supreme Court of New York

Nelson v. Board of Collective Bargaining

204 A.D.2d 216, 613 N.Y.S.2d 1

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

DecidedMay 24, 1994

StatusPublished

This text of 204 A.D.2d 216 (Nelson v. Board of Collective Bargaining) 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.

Bluebook

Nelson v. Board of Collective Bargaining, 204 A.D.2d 216, 613 N.Y.S.2d 1 (N.Y. Ct. App. 1994).

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Opinion

—Orders, Supreme Court, New York County (Lewis Friedman, J.), entered September 23, 1992, September 14, 1993 and November 10, 1993, which dismissed petitioner’s CPLR article 78 petition as untimely, denied petitioner’s request for leave to file a late notice of claim and, inter alia, denied petitioner’s motion for leave to renew, unanimously affirmed, without costs.

The IAS Court correctly held that respondent Board’s order was reviewable under CPLR article 78, not CPLR article 75 as petitioner claims, no arbitration having taken place, and that the proceeding, therefore, was not timely commenced (Civil Service Law § 213 [a]; see, Matter of Uniformed Firefighters Assn. v New York City Off. of Collective Bargaining, 163 AD2d 251). Petitioner’s application to file a late notice of claim pursuant to General Municipal Law § 50-e (5) was made more than one year and ninety days after his discharge by respondent Department, and thus barred by the Statute of Limitations (see, Pierson v City of New York, 56 NY2d 950). Assuming any merit to petitioner’s excuse that respondents misled him as to the Statute of Limitations, we agree with the IAS Court that this does not explain his seven-month delay in commencing the proceeding after learning of the statute, and that the application was nothing more than an improper attempt to avoid the time bar to article 78 review of his discharge. We have considered petitioner’s other claims and find them to be without merit. Concur—Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.

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—Orders, Supreme Court, New York County (Lewis Friedman, J.), entered September 23, 1992, September 14, 1993 and November 10, 1993, which dismissed petitioner’s CPLR article 78 petition as untimely, denied petitioner’s request for leave to file a late notice of claim and, inter alia, denied petitioner’s motion for leave to renew, unanimously affirmed, without costs.

The IAS Court correctly held that respondent Board’s order was reviewable under CPLR article 78, not CPLR article 75 as petitioner claims, no arbitration having taken place, and that the proceeding, therefore, was not timely commenced (Civil Service Law § 213 [a]; see, Matter of Uniformed Firefighters Assn. v New York City Off. of Collective Bargaining, 163 AD2d 251). Petitioner’s application to file a late notice of claim pursuant to General Municipal Law § 50-e (5) was made more than one year and ninety days after his discharge by respondent Department, and thus barred by the Statute of Limitations (see, Pierson v City of New York, 56 NY2d 950). Assuming any merit to petitioner’s excuse that respondents misled him as to the Statute of Limitations, we agree with the IAS Court that this does not explain his seven-month delay in commencing the proceeding after learning of the statute, and that the application was nothing more than an improper attempt to avoid the time bar to article 78 review of his discharge. We have considered petitioner’s other claims and find them to be without merit. Concur—Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.

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Bluebook (online)

204 A.D.2d 216, 613 N.Y.S.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-board-of-collective-bargaining-nyappdiv-1994.

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