Baloy v. Keely

• Decision Date: 14 February 2012
• Citation: 938 N.Y.S.2d 430,92 A.D.3d 521,2012 N.Y. Slip Op. 01134
• Parties: In re Romeo BALOY, etc., Petitioner–Appellant, v. Raymond KELLY, etc., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01134
92 A.D.3d 521
938 N.Y.S.2d 430

In re Romeo BALOY, etc., Petitioner–Appellant,
v.
Raymond KELLY, etc., Respondent–Respondent.

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

Feb. 14, 2012.

Jerold E. Levine, Valley Stream, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), for respondent.

[92 A.D.3d 521] Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 23, 2010, which denied the petition [92 A.D.3d 522] seeking, among other things, to annul respondent's determination to refuse to issue a “good guy” letter authorizing petitioner to carry firearms upon retirement, and granted respondent's cross motion to dismiss as time-barred this proceeding

[938 N.Y.S.2d 431]

brought pursuant to CPLR article 78, unanimously affirmed, without costs.

When petitioner retired on July 28, 2006, he had not obtained the good guy letter that is required to obtain the subject pistol license. In August 2006, the New York City Police Department (NYPD) advised petitioner's wife in writing that his application for the license would be denied because, at the time of petitioner's retirement, he was on restrictive duty and ineligible to possess firearms. This letter was a “final and binding” determination and petitioner knew or should have known that he was “aggrieved” by it; accordingly, the four-month statute of limitations began to run, at the latest, upon receipt of the letter (CPLR 217[1]; see also Matter of O'Neill v. Schechter, 5 N.Y.2d 548, 554, 186 N.Y.S.2d 577, 159 N.E.2d 146 [1959] ). The court correctly found that the letter dated April 24, 2009 from petitioner's attorney was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations ( see Matter of Eldaghar v. New York City Hous. Auth., 34 A.D.3d 326, 327, 824 N.Y.S.2d 268 [2006], lv. denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ). Further, because the letter dated May 6, 2009 from the NYPD reiterated that petitioner did not obtain a good guy letter upon retirement because of his restricted duty status, it was not a “new determination” that would suffice to revive the statute of limitations ( id.).

The possibility of obtaining administrative relief had been exhausted when petitioner retired without a change in his restricted duty status ( see Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375, 372 N.Y.S.2d...