Biondo v. New York State Bd. of Parole

• Decision Date: 01 November 1983
• Citation: 470 N.Y.S.2d 130,458 N.E.2d 371,60 N.Y.2d 832
• Parties: , 458 N.E.2d 371 In the Matter of Sebastian BIONDO, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 130

470 N.Y.S.2d 130

60 N.Y.2d 832, 458 N.E.2d 371

In the Matter of Sebastian BIONDO, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Court of Appeals of New York.

Nov. 1, 1983.

[60 N.Y.2d 833] Murray Bogatin, New York City, for appellant.

Robert Abrams, Atty. Gen. (Nancy A. Spiegel and Peter H. Schiff, Asst. Attys. Gen., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 90 A.D.2d 943, 457 N.Y.S.2d 946, should be reversed, with costs, and the matter remitted to the Supreme Court, Albany County, for a hearing to determine when petitioner was informed of the appeal board's determination.

The four-month Statute of Limitations did not begin to run until the petitioner received notice of the appeal board's determination (see, e.g., 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7804.02; Matter of Abramson v. Commissioner of Educ., 1 A.D.2d 366, 371, 150 N.Y.S.2d 270; cf. Matter of Queensborough Community Coll. v. State Human Rights Appeal Bd., 41 N.Y.2d 926, 394 N.Y.S.2d 625, 363 N.E.2d 349). The contrary conclusion reached by the courts below, that the running of the statutory period began to run immediately upon the issuance of the determination, overlooks the additional requirement that the petitioner be "aggrieved" by the determination (Matter of Martin v. Ronan, 44 N.Y.2d 374, 381, 405 N.Y.S.2d 671, 376 N.E.2d 1316). We have previously held that for the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final (Mundy v. Nassau County Civ. Serv. Comm., 44 N.Y.2d 352, 405 N.Y.S.2d 660, 376 N.E.2d 1305). A similar principle should apply when the petitioner has received no notice, ambiguous or otherwise, of the determination by which he is said to be aggrieved. Indeed, fundamental fairness would seem to compel the conclusion that a petitioner should not be held to have been dilatory in challenging a determination of which he was not aware (cf. Matter of Bianca v. Frank, 43 N.Y.2d 168, 401 N.Y.S.2d 29, 371 N.E.2d 792).

We also note that although the petitioner's sentence has expired it cannot be said, as we recently held in Matter of Tremarco v. New York State Bd. of Parole, 58 N.Y.2d 968, 460 N.Y.S.2d 535, 447 N.E.2d 83, that the proceeding has been rendered moot. In that case the sentence...