Salomon v. Town of Wallkill

• Decision Date: 17 July 2019
• Docket Number: 2018-05650 ,Index No. 7740/17
• Parties: In the Matter of Jessenia SALOMON, Appellant, v. TOWN OF WALLKILL, Respondent.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 720

107 N.Y.S.3d 420

In the Matter of Jessenia SALOMON, Appellant,

v.TOWN OF WALLKILL, Respondent.

2018-05650

Index No. 7740/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted - April 2, 2019

July 17, 2019

O'Neil & Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for appellant.

Blustein, Shapiro, Rich & Barone, LLP, Goshen, N.Y. (William A. Frank of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order and judgment is affirmed, with costs.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of her employer, the Town of Wallkill, to classify her as an employee hired after December 31, 2014, subject to a 15% health insurance premium contribution requirement under the applicable collective bargaining agreement, as amended. The Town moved to dismiss the petition as untimely, among other grounds. In an order and judgment dated April 6, 2018, the Supreme Court granted the Town's motion and, in effect, dismissed the petition. The petitioner appeals.

A challenge to an administrative determination must be commenced within four months of the time the determination is "final and binding upon the petitioner" ( CPLR 217[1] ). "A challenged determination is final and binding when it ‘has its impact’ upon the petitioner who is thereby aggrieved" ( Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853, quoting Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 357, 405 N.Y.S.2d 660, 376 N.E.2d 1305 ). An administrative determination regarding payment of salary or pay adjustments is final and binding, and a challenge thereto accrues, when the petitioner receives a check or salary payment reflecting the administrative determination (see Matter of O'Neill v. Pfau, 23 N.Y.3d 993, 995, 993 N.Y.S.2d 666, 18 N.E.3d 377 ; Matter of Imandt v. New York State Unified Ct. Sys., 168 A.D.3d 1051, 1052, 93 N.Y.S.3d 343 ; Matter of Quirk v. Lippman, 156 A.D.3d 516, 517, 68 N.Y.S.3d 39 ; Matter of Maurer v. State Emergency Mgt. Off., 13 A.D.3d 751, 753, 786 N.Y.S.2d 620 ).

Contrary to the petitioner's contention, the continuing wrong doctrine does not apply here to toll the statute of limitations (see generally Capruso v. Village of Kings Point, 23 N.Y.3d 631, 639, 992 N.Y.S.2d 469, 16 N.E.3d 527 ). The doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" ( Selkirk v. State of New York, 249 A.D.2d 818, 819, 671 N.Y.S.2d 824 ; see Peckham v. Island Park Union Free Sch. Dist., 167 A.D.3d 641, 642, 87 N.Y.S.3d 480 ). "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs" ( Henry v. Bank of Am., 147 A.D.3d 599, 601, 48 N.Y.S.3d 67 [internal quotation marks omitted] ). Here, the Town made the determination to classify the petitioner as an employee hired after December 31, 2014, subject to a 15% health insurance premium contribution requirement, as reflected in her first paycheck issued in April 2015, more than two years prior to the commencement of this proceeding. Each subsequent paycheck deduction "represent[ed] the consequences of [that...