MATTER OF ROENKE v. State University of New York

• Decision Date: 21 June 2001
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of HENRY M. ROENKE et al., Appellants,<BR>v.<BR>STATE UNIVERSITY OF NEW YORK et al., Respondents.

284 A.D.2d 781

726 N.Y.S.2d 771

In the Matter of HENRY M. ROENKE et al., Appellants,

v.STATE UNIVERSITY OF NEW YORK et al., Respondents.

Decided June 21, 2001.

Peters, Spain, Mugglin and Lahtinen, JJ., concur.

Crew III, J. P.

Prior to January 1, 1998, petitioners participated in a tax deferred savings plan pursuant to Education Law § 399, which permitted petitioners, as employees of two community colleges operating under Education Law article 126, to invest in annuity and/or custodial accounts by payroll deduction (see, Education Law § 399 [1], [2]). In or about December 1997, petitioners were advised that respondent State University of New York (hereinafter SUNY) no longer would permit them to make contributions to their respective custodial accounts. Petitioners were, however, permitted to make contributions to various tax sheltered annuities.

Thereafter, in August 1998, petitioners commenced the instant proceeding pursuant to CPLR article 78 alleging, inter alia, that Education Law § 399 compelled SUNY to designate a company or companies from which employees such as petitioners could purchase shares in a tax deferred custodial account and, further, that SUNY's failure to do so resulted in the loss of investment opportunities and income for petitioners and others similarly situated. Respondents moved to dismiss the proceeding as time barred and Supreme Court, receiving no opposition thereto, granted the motion. Petitioners thereafter moved to renew/reargue^[*] and Supreme Court, upon renewal, adhered to its prior decision. This appeal by petitioners ensued.

We affirm. The crux of petitioners' argument on appeal is that Education Law § 399 mandates that SUNY promulgate a list of companies from which shares in a custodial account may be purchased. As petitioners are seeking to require SUNY to discharge its statutory duty, the argument continues, the relief sought is in the nature of mandamus to compel and, as such, the Statute of Limitations does not begin to run until an appropriate demand is made and refused (see, e.g., Matter of Coliseum Towers Assocs. v Livingston, 153 AD2d 683, 685-686, affd 80 NY2d 961). Viewing the underlying petition as their first "demand" that respondents comply with the provisions of Education Law § 399 (4) and (5), petitioners assert that this proceeding was timely commenced.

The primary flaw in petitioners' argument is that nothing in Education Law § 399 compels SUNY to establish custodial account programs in the first instance. Education Law § 399 (1) provides as follows: "An employer is hereby authorized to establish by resolution special annuity and custodial account programs which shall provide for the purchase of contracts or establishment of custodial accounts providing retirement and death benefits for or on behalf of employees electing to enter into an agreement with such employer providing for a...