C. S. D. No. 2 of Towns of Coeymans, et al., Albany County v. New York State Teachers Retirement System

• Decision Date: 15 March 1967
• Citation: 278 N.Y.S.2d 141,27 A.D.2d 265
• Parties: C.S.D. NO. 2 OF TOWNS OF COEYMANS, ET AL., ALBANY COUNTY, Town of New Baltimore, Greene County et al., Petitioners-Appellants, v. NEW YORK STATE TEACHERS RETIREMENT SYSTEM, New York State Teachers Retirement Board, C. B. Murray, Martin A. Helfer, Muriel H. Weber, Lester B. Foreman, Arthur Levitt, Frank Wells McCabe, Harold A. Moe and Howard B. Tuggey, Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 141

278 N.Y.S.2d 141

27 A.D.2d 265

C.S.D. NO. 2 OF TOWNS OF COEYMANS, ET AL., ALBANY COUNTY Town of New Baltimore, Greene County et al Petitioners-Appellants, v. NEW YORK STATE TEACHERS RETIREMENT SYSTEM, New York State Teachers Retirement Board, C. B. Murray, Martin A. Helfer Muriel H. Weber, Lester B. Foreman, Arthur Levitt, Frank Wells McCabe, Harold A. Moe and Howard B. Tuggey Respondents-Respondents.

Supreme Court, Appellate Division, Third Department.

March 15, 1967.

Watters & Donovan, New York City (John P. Walsh, New York City, James B. Donovan and David H. Hall, New York City, of counsel), for appellant Central School District No. 2.

Jack Norden, Jr., Cedarhurst, for appellant Union Free School District, Town of Hempstead.

Alfred J. Loew, Floral Park, for appellant Central High School District No. 1, Town of Hempstead.

Bruce Bromley, New York City, for respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.

REYNOLDS, Justice.

This is an appeal from a judgment of the Supreme Court, Albany County, dismissing a proceeding brought pursuant to article 78 of the CPLR to challenge the correctness of determinations made by respondents which affect the amounts of contributions assessed against the appellants pursuant to § 517 of the Education Law.

Appellants have advanced five causes of action. In the first cause of action appellants assert that as a result of action taken by the Retirement Board at its April, 1962 meeting, they were overassessed for the deficiency fund (Education Law, § 517 (2)(c)) for the school year 1962--1963 because the rate fixed produced revenues in excess of the amount necessary to pay up the remaining deficiency which terminated during that year. They seek to recover back this overassessment. In the second cause of action appellants assert that the Retirement Board at its April, 1963 meeting assessed a deficiency for the 1963--1964 school year despite the fact that the deficiency had been liquidated and, in fact, overpaid during the previous school year. Appellants seek to recover back this amount also. In the third and fourth causes of action appellants assert that since 1958 the board had been assessing a 'special deficiency contribution' in violation of § 517(2)(c). Appellants seek to have refunded the amount allegedly overassessed and to prevent further overassessment. In their fifth and final cause of action appellants claim that the board at its March, 1964 meeting improperly assessed a 'normal contribution' in that it utilized components in calculating the assessment not authorized by § 517(2)(b) of the Education Law.

While we find substance in certain of appellants' challenges, particularly as to the use of an interest rate other than that prescribed by Education Law § 501(9) and of mortality tables never formally adopted (Education Law § 508(4); see also, Education Law § 517(2)(b)), we do not reach the merit of these contentions here because we are constrained to agree with Special Term that the proceeding is barred by the statute of limitations and for laches. CPLR 217 provides that:

'Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty * * *.'

This four month limitation clearly bars all allegations which assert the adoption of an arbitrary and capricious actuarial scheme and thus envisage a review in the nature of certiorari. However, the petition also contains allegations that the respondents did not comply with explicit statutory mandates and seeks relief requiring compliance therewith. Thus the proceeding must also be considered as in the nature of mandamus and as such the statutory period of § 217 would not begin to run until a demand for compliance is made and rejected (e.g., Matter of O'Connell v. Kern, 287 N.Y. 297, 301, 39 N.E.2d 246, 248). Despite this, however, where a petitioner does not make a reasonably prompt demand and there is no excuse for the elapsed time, the courts have denied the relief sought on the basis of laches (e.g., Austin v. Board of Higher Educ., 5 N.Y.2d 430, 186 N.Y.S.2d 1, 158 N.E.2d 681). This position is premised on the rationale that a petitioner should not be able to 'indefinitely postpone the time to seek relief by delaying the demand' (Matter of Kleinman v. Kaplan, 20 A.D.2d 594, 245 N.Y.S.2d 268; Matter of Amsterdam City Hosp. v. Hoffman, 278 App.Div. 292, 104 N.Y.S.2d 348). Furthermore, the doctrine of laches involved is not the equitable doctrine of laches and thus 'it is immaterial whether or not the delay caused any prejudice' (Matter of Devens v. Gokey, 12 A.D.2d 135, 137, 209 N.Y.S.2d 94, affd. 10 N.Y.2d 898, 223 N.Y.S.2d 515, 179 N.E.2d 516). The sole test as we see it is thus whether, under the circumstances of the case, the delay in making the...