Hanslmaier v. Wehr

Dec 16, 1993
Versions:199 A.D.2d 754
605 N.Y.S.2d 436
1993 N.Y. App. Div. LEXIS 11973
Cardona, J.

Appeal from a judgment of the Supreme Court (Williams, J.), entered July 8, 1992 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s cross motion to dismiss the petition as time barred.

On September 23, 1991, petitioner signed a resignation letter terminating his employment with the Sullivan County Department of Public Works. Petitioner’s attorneys requested retraction of the resignation by letter dated November 7, 1991. Respondent denied the request by letter dated November 13, 1991. On March 12, 1992, this proceeding was commenced.

CPLR 217 (1) provides for a four-month Statute of Limitations to run from the time "the determination to be reviewed becomes final and binding upon the petitioner”. The requested retraction and denial thereof did not extend the time to commence the proceeding (see, Matter of Williamson v Fermoile, 31 AD2d 438, affd 26 NY2d 731). Petitioner fails to demonstrate that any hearing or administrative reconsideration of his resignation was required. Petitioner’s cause of action accrued on September 23, 1991, the date of his resignation, and his petition is untimely. It is therefore unnecessary to consider petitioner’s other contentions.

Weiss, P. J., Mikoll, Yesawich Jr. and Crew III, JJ. Ordered that the judgment is affirmed, without costs.