Filut v. New York State Educ. Dept.
| Decision Date | 09 December 1982 |
| Citation | 91 A.D.2d 722,457 N.Y.S.2d 643 |
| Parties | In the Matter of Jack M. FILUT, Appellant, v. NEW YORK STATE EDUCATION DEPARTMENT et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Gates, Singer, Deitsch, Weintraub & Fass, New York City (Steven L. Young, New York City, of counsel), for appellant.
Robert D. Stone, Albany (Frederick W. Burgess, Albany, of counsel), for respondents.
Before SWEENEY, J.P., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered May 15, 1981 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to require respondents to approve petitioner's application for admission to the State licensing examination for psychologists.
We affirm the established rule that a four-month limitation of time within which to commence CPLR article 78 proceedings to review an administrative determination (CPLR 217) commences, if such determination has a final and binding impact, on the date when the petitioner receives notice of the determination.
In this proceeding, petitioner, a 1976 graduate of Marquette University with the degree of Doctor of Philosophy in Counseling, sought admission to the licensing examination in psychology. On October 16, 1978, he was notified he would not be admitted to the examination because he failed to satisfy the statutory educational requirements for licensure in that he did not have a doctoral degree in psychology and lacked certain minimum semester hours of education. A lengthy exchange of correspondence and personal communications between petitioner and officials of the Division of Professional Licensing Services followed in which he sought to substantiate by documentation why his academic preparation was sufficient to satisfy the requirements. After further consideration, review, and appeal, petitioner was advised by letter dated March 3, 1980 that the Board of Regents voted on February 29, 1980 to deny him admission to the examination. Petitioner retained counsel who then recommenced an exchange of correspondence and submission of additional documentation culminating in another letter from the executive secretary of the State Board for Psychology dated October 6, 1980, notifying counsel that there was no reason to reopen petitioner's case. By petition dated February 3, 1981, this CPLR article 78 proceeding was commenced alleging that petitioner had been denied due process rights by respondents' failure to reconsider and re-evaluate their decision in light of the new evidence provided, and that the decision was arbitrary and capricious, and seeking a judgment directing his admission to the next examination as well as money damages. Special Term granted respondents' CPLR 3211 (subd. [a], par. 5) motion and dismissed the petition as untimely. The court rejected petitioner's arguments that respondents be estopped from interposition of the Statute of Limitations, and that an application for reconsideration of the administrative determination served to extend the time within which to commence the proceeding. We agree and affirm.
It is beyond cavil that an administrative determination is final and binding when it has an impact upon a petitioner (Matter of Meliti v. Nyquist, 41 N.Y.2d 183, 186, 391 N.Y.S.2d 398, 359 N.E.2d 988; Verbanic v. Nyquist, 41 A.D.2d 466, 467, 344 N.Y.S.2d 406; 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7804.02). As early as October 16, 1978, petitioner was advised that his application was denied for lack of qualification, and he was invited to submit additional documentary evidence for further examination by respondents, which indeed he did. When petitioner received the letter of March 3, 1980, he was advised that the Board of Regents voted to deny him admission to the licensure examination and that future admission would be contingent upon his completion of a doctorate in psychology registered or approved by the department or a doctoral program determined to be the equivalent of a registered program. This determination had an impact on petitioner when he received the letter (see Matter of Davis v. Westchester County Personnel Off., 75 A.D.2d 600, 426 N.Y.S.2d 808). Petitioner argues...
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