Mintz v. City of Rochester

• Decision Date: 23 December 2021
• Docket Number: 916,CA 21-00579
• Citation: 155 N.Y.S.3d 897 (Mem),200 A.D.3d 1650
• Parties: In the Matter of the Application of the Rochester Police Civil Technicians Unit Members Stephanie MINTZ, Karen Hayes, Liz Marsden, Abigail Minchella, Giana Nitti, Brittany Sands, Ryan Radell and Jason Terrigino, Petitioners-Respondents, v. CITY OF ROCHESTER, Rochester Police Department, Rochester Chief of Police La'Ron Singletary, Rochester Mayor Lovely Warren and Tassie Demps, Director of Human Resources, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1650

155 N.Y.S.3d 897 (Mem)

In the Matter of the Application of the Rochester Police Civil Technicians Unit Members Stephanie MINTZ, Karen Hayes, Liz Marsden, Abigail Minchella, Giana Nitti, Brittany Sands, Ryan Radell and Jason Terrigino, Petitioners-Respondents,

v.CITY OF ROCHESTER, Rochester Police Department, Rochester Chief of Police La'Ron Singletary, Rochester Mayor Lovely Warren and Tassie Demps, Director of Human Resources, Respondents-Appellants.

916

CA 21-00579

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

Entered: December 23, 2021

TIMOTHY R. CURTIN, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

VAHEY GETZ LLP, ROCHESTER (JON P. GETZ OF COUNSEL), FOR PETITIONERS-RESPONDENTS.

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the first decretal paragraph and as modified the judgment is affirmed without costs, and respondents are granted 20 days from service of the order of this Court with notice of entry to serve and file an answer.

Memorandum: Petitioners, civilian members of the Technicians Unit of respondent Rochester Police Department, commenced this CPLR article 78 proceeding to challenge the denial of their requests for exemptions from respondent City of Rochester's residency rule, which requires that certain employees reside within the City of Rochester. Respondents moved pursuant to CPLR 3211 to dismiss the petition, and they now appeal from a judgment that denied the motion and granted the petition.

Initially, we note that respondents moved to dismiss on two grounds, to wit, that the petition is time-barred under the statute of limitations and that it fails to state a cause of action. On appeal, however, they challenge only that part of the judgment that denied their motion on statute of limitations grounds. Therefore, we conclude that they have abandoned their contention that the petition fails to state a cause of action (see generally Sto Corp. v. Henrietta Bldg. Supplies, Inc. , 202 A.D.2d 969, 970, 609 N.Y.S.2d 746 [4th Dept. 1994] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).

We reject respondents’ contention that Supreme Court erred in denying that part of the motion seeking to dismiss the petition on statute of limitations grounds. It is well settled that, "[o]n a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, [a] defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Cimino v. Dembeck , 61 A.D.3d 802, 803, 876 N.Y.S.2d 893 [2d Dept. 2009] ; see Federal Natl. Mtge. Assn. v. Tortora , 188 A.D.3d 70, 74, 131 N.Y.S.3d 763 [4th Dept. 2020] ; Larkin v. Rochester Housing Auth. , 81 A.D.3d 1354, 1355, 916 N.Y.S.2d 694 [4th Dept. 2011] ). Consequently, respondents here were required to "establish, inter alia, when [petitioners’] cause of action accrued" ( Swift v. New York Med. Coll. , 25 A.D.3d 686, 687, 808 N.Y.S.2d 731 [2d Dept. 2006] ; see Chaplin v. Tompkins , 173 A.D.3d 1661, 1662, 103 N.Y.S.3d 713 [4th Dept. 2019] ; Larkin , 81 A.D.3d at 1355, 916 N.Y.S.2d 694 ). A CPLR article 78 proceeding must be commenced within four months after the determination to be reviewed becomes "final and binding upon the petitioner" ( CPLR 217 ), which is when the challenged determination "inflicts an actual, concrete injury upon the petitioner" ( Matter of Town of Olive v. City of New York , 63 A.D.3d 1416, 1418, 881 N.Y.S.2d 228 [3d Dept. 2009] [internal quotation marks omitted]). Thus, a CPLR article 78 proceeding accrues when the petitioner seeking review has been aggrieved by the challenged agency action and has received notice of that action (see Matter of Village of Westbury v. Department of Transp. of State of N.Y. , 75 N.Y.2d 62, 72, 550 N.Y.S.2d 604, 549 N.E.2d 1175 [1989] ; Matter of Fields v. City of Buffalo , 174 A.D.3d 1436, 1437, 107 N.Y.S.3d 209 [4th Dept. 2019] ). Here, we conclude that respondents failed to meet that burden inasmuch as they introduced no admissible evidence that petitioners were notified of the determination to deny their requests for exemptions from the residency rule more than four months before the commencement of the proceeding.

Moreover, "[w]hen a court rules on a CPLR 3211 motion to dismiss, it ‘must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord [petitioners] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc. , 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487 [2012] ; see Bisimwa v. St. John Fisher Coll. , 194 A.D.3d 1467, 1469, 149 N.Y.S.3d 428 [4th Dept. 2021] ). Those requirements apply to motions to dismiss based on the statute of limitations (see e.g. Collins v. Davirro , 160 A.D.3d 1343, 1343, 76 N.Y.S.3d 277 [4th Dept. 2018] ; Town of Macedon v. Village of Macedon , 129 A.D.3d 1639, 1641, 13 N.Y.S.3d 733 [4th Dept. 2015] ). Here, petitioners alleged in the petition that they were not notified of respondents’ determination to deny their requests for exemptions from the residency rule until approximately seven weeks prior to the commencement of the proceeding. Thus, accepting that allegation as true, and in light...