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Statute of limitations to compel an official to perform a ministerial act commences to run when the demand for compliance is refused

Statute of limitations to compel an official to perform a ministerial act commences to run when the demand for compliance is refused
Matter of Eidt v City of Long Beach, 2009 NY Slip Op 03902, Decided on May 12, 2009, Appellate Division, Second Department

Douglas Eidt and a number of disabled firefighters receiving General Municipal Law §207-a(2) pension supplementations filed a petition pursuant to CPLR Article 78 in the nature of mandamus to compel the City of Long Beach to pay the pension supplements to which they believed they were entitled.

Eidt and his co-plaintiffs each were receiving an accidental disability retirement allowance from the New York State Police and Fire Retirement System. In accordance with General Municipal Law §207-a(2), the City was required to supplement their retirement allowance so that they received the difference between "the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" until they attain the mandatory service retirement age applicable to them or attain the age or perform the period of service specified by applicable law for the termination of their service.*

The Long Beach City Council adopted a resolution that fixed the amounts of the supplemental disability allowances it would pay to the disabled firefighters for the fiscal year 2007/2008, which commenced on July 1, 2007. Claiming that this amount was less than the supplement required to be paid to them pursuant to §207-a(2), Eidt and the other retirees met with the City Comptroller to discuss their grievance and formally demanded that the City pay "the proper amount owed."

By letter dated October 12, 2007, the City Comptroller informed Eidt and the other retirees that "the City is in full compliance with the obligations of [General Municipal Law] Section 207-a." On November 1, 2007, Eidt and the other retired firefighters filed their petition seeking to compel the City ?to increase the amounts paid in connection with their supplemental disability allowances in accordance with the mandates set out in General Municipal Law §207-a.?

The City moved to dismiss the petition as time-barred, contending that the proceeding was commenced more than four months after June 19, 2007, when the Long Beach City Council adopted the resolution fixing the amount of their respective allowances. The Supreme Court granted the City?s motion and dismissed the petition. The Appellate Division reversed the lower court?s ruling.

The Appellate Division ruled that as this action was in the nature of ?mandamus to compel,? in contrast to an action in the nature of ?certiorari to review.?** CPLR 217 provides that a proceeding against a body or officer must be commenced within four months "after the respondent's refusal, upon the demand of the petitioner . . . to perform its duty."

In a proceeding that is in the nature of mandamus to compel, said the Appellate Division, ?the statute begins to run when there has been a demand for compliance and a rejection thereof.? Here Long Beach?s "refusal" did not occur until October 12, 2007, when the City Comptroller issued the letter rejecting the Edit demand of September 19, 2007.

The decision notes that Long Beach had previously determined that Edit and the other retired firefighters were entitled to supplemental disability allowances pursuant to General Municipal Law §207-a(2). The City then allegedly failed properly to carry out the ministerial act of fully implementing the payment of such allowances. Accordingly, the remedy of mandamus is available to compel the City to act in accordance with the obligation imposed on it by that section of the statute.

As Edit?s petition was filed on November 1, 2007 -- little more than two weeks after the City's refusal was transmitted to the firefighters -- it was timely. The Appellate Division remanded the matter to Supreme Court for further action.

* Case law holds that such supplements are to be adjusted to reflect salary increases that the disabled retired firefighter would have otherwise been paid had he or she remained on active duty.

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03902.htm

Full post as published by New York Public Personnel Law on May 20, 2009 (boomark / email).