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Determining when the statute of limitations to file a timely Article 78 begins to run

Determining when the statute of limitations to file a timely Article 78 begins to run
Rodriguez v Yonkers, App. Div., Second Dept., 279 A.D.2d 632

The facts in the Rodriguez case are simple enough: the City of Yonkers terminated Frank Rodriguez, an environmental maintenance worker, for excessive absences effective March 16, 1999. Later Rodriguez decided to file a petition pursuant to Article 78 of the Civil Practice Law and Rules challenging his termination.

In the words of the court: ?the gravamen of the [petitioner's] claim [is] that he was fired by the city without notice of the charges, a hearing, or other due process.?

This, said the court was "the classic formulation of an Article 78 proceeding" -- whether the administrative determination was made in violation of lawful procedure, was affected by error of law or was arbitrary, capricious or an abuse of discretion.

The court never got to consider the merits of Rodriguez's appeal. Why? Because, said the court, Rodriguez filed his Article 78 petition more than four months after he received the final determination dismissing him from his position.

The statute of limitations for filing a timely Article 78 petition is four months from the date on which the final determination was served on the individual or his or her representative.

This, said the Appellate Division, meant that any appeal was time-barred and that Rodriguez's petition had to be dismissed. The basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:

1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.

2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.

3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

To illustrate this point, in Weeks v State of New York, 198 AD2d 615, the Appellate Division refused to recognize the date of the delivery of a decision to an employee's union representative as the date from which to measure when the statute of limitations began to run.

Full post as published by New York Public Personnel Law on May 04, 2010 (boomark / email).