Goodman v. Chief Judge of the Office of Admin. Trials & Hearings of N.Y.

• Decision Date: 25 April 2013
• Citation: 963 N.Y.S.2d 580,2013 N.Y. Slip Op. 02839,105 A.D.3d 651
• Parties: In re Robert GOODMAN, Petitioner–Appellant, v. CHIEF JUDGE OF the OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS OF the CITY OF NEW YORK, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 651

963 N.Y.S.2d 580

2013 N.Y. Slip Op. 02839

In re Robert GOODMAN, Petitioner–Appellant,

v.CHIEF JUDGE OF the OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS OF the CITY OF NEW YORK, et al., Respondents–Respondents.

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

April 25, 2013.

Robert Goodman, New York, appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondents.

Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered March 27, 2012, denying the petition seeking to annul a determination of respondent City of New York, effected on January 13, 2011, which terminated petitioner's employment as a per diem administrative law judge/hearing officer with the Environmental Control Board, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Since petitioner had no administrative remedies, the applicable four-month statute of limitations period ( seeCPLR 217[1] ) began to run immediately upon his termination on January 13, 2011 ( see Matter of De Milio v. Borghard, 55 N.Y.2d 216, 219–220, 448 N.Y.S.2d 441, 433 N.E.2d 506 [1982];Portlette v. Metropolitan Transp. Auth., 25 A.D.3d 389, 391, 808 N.Y.S.2d 652 [1st Dept. 2006] ). Accordingly, this CPLR article 78 proceeding, commenced over 11 months later in December 2011, was untimely. Petitioner's pre-petition efforts to seek reinstatement, including his direct written request to the Chief Administrative Law Judge, made on August 18, 2011, did not toll or restart the limitations period ( see De Milio, 55 N.Y.2d at 222, 448 N.Y.S.2d 441, 433 N.E.2d 506;Matter of Kan v. New York City Envtl. Control Bd., 262 A.D.2d 135, 691 N.Y.S.2d 500 [1st Dept. 1999],lv. dismissed and denied 94 N.Y.2d 857, 704 N.Y.S.2d 530, 725 N.E.2d 1092 [1999] ). Even assuming that petitioner's direct request for reinstatement constituted an “administrative remedy” for purposes of the statute of limitations, it was also untimely since it was made over seven months after his termination ( see Matter of Densmore v. Altmar–Parish–Williamstown Cent. School Dist., 265 A.D.2d 838, 839, 695 N.Y.S.2d 828 [4th Dept. 1999],lv. denied94 N.Y.2d 758, 705 N.Y.S.2d 5, 726 N.E.2d 482 [2000] ).

ANDRIAS, J.P., SAXE, DeGRASSE, RICHTER, GISCHE, JJ., concur.