Heaton v. Monroe County

• Decision Date: 12 November 2010
• Citation: 910 N.Y.S.2d 611,78 A.D.3d 1501
• Parties: In the Matter of Lisa HEATON, Petitioner-Respondent, v. MONROE COUNTY and Monroe County Sheriff, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 611

78 A.D.3d 1501

In the Matter of Lisa HEATON, Petitioner-Respondent,

v.MONROE COUNTY and Monroe County Sheriff, Respondents-Appellants.

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

Nov. 12, 2010.

Harris Beach PLLC, Pittsford (Edward A. Trevvett of Counsel), for Respondents-Appellants.

Trevett Cristo Salzer & Andolina, P.C., Rochester (Daniel P. Debolt of Counsel), for Petitioner-Respondent.

PRESENT: FAHEY, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.

MEMORANDUM:

Supreme Court properly granted the petition in this CPLR article 78 proceeding challenging the determination denying petitioner's application for General Municipal Law § 207-c benefits. Respondents denied the application on the ground, inter alia, that petitioner failed to report her injury in a timely manner pursuant to the requirements of a General Order issued by respondent Monroe County Sheriff. Contrary to respondents' contention, however, the record establishes thatthe reporting requirements of that General Order did not apply to petitioner's injury. Contrary to the contention of the dissent, moreover, we conclude that the statute of limitations defense, which was not addressed at Supreme Court, does not remain pending and undecided. "[I]t is well established that the court's failure to issue an express ruling is deemed a denial thereof" (Rochester Equip. & Maintenance v. Roxbury Mtn. Serv., Inc., 68 A.D.3d 1803, 1805, 891 N.Y.S.2d 781, citing Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 864, 604 N.Y.S.2d 432). On the merits of that defense, we reject respondents' contention that the proceeding was not timely commenced. "The statute of limitations is an affirmative defense which must be pleaded and proved by the party invoking it" ( Paladino v. Time Warner Cable of N.Y. City, 16 A.D.3d 646, 647, 793 N.Y.S.2d 63; see Mendez v. Steen Trucking, 254 A.D.2d 715, 716, 680 N.Y.S.2d 134), and respondents failed to establish that the proceeding was commenced more than four months after petitioner received notice that her application was denied ( see CPLR 217 [1]; cf. Matter of Raymond v. Walsh, 63 A.D.3d 1715, 880 N.Y.S.2d 597, appeal dismissed and lv. denied 14 N.Y.3d 790, 899 N.Y.S.2d 122, 925 N.E.2d 925).

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

All concur except CARNI, J., who dissents and votes to reverse in accordance with the following Memorandum:

I respectfully disagree with the conclusion of my colleagues that Supreme Court properly granted petitioner's application for General Municipal Law § 207-c benefits. Therefore, I dissent. I conclude that, on the record before us, there is an issue of fact as to when petitioner was first informed of the determination denying her application for General Municipal Law § 207-c benefits, and the resolution of that issue of fact is essential to determining the merits of respondents' statute of limitations defense ( see ...