Tilt v. Krone
| Decision Date | 04 November 1968 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of James T. TILT et al., Respondent, v. Mary Goode KRONE et al., Constituting the Civil Service Commission of the State of New York et al., Appellants. |
Schulman, Abarbanel & Kroner, Joel Field, New York City, for respondents.
Louis J. Lefkowitz, Atty. Gen., John Q. Driscoll, Albany, for appellants.
Before GIBSON, P.J., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered December 12, 1967 in Albany County.
In this article 78 proceeding, petitioners seek to require the Commissioner of Taxation and Finance to tender them offers of employment in the sales tax division of the New York State Department of Finance.
On April 14, 1965, by enactment of chapter 93 of the Laws of 1965, the State of New York adopted a sales and use tax to take effect August 1, 1965. The legislation also provided for transfer to the State of the responsibility for the collection of local municipal sales and use taxes which were then in effect. Petitioners, holding permanent competitive class positions with veterans' preferences, were employees of the New York City Department of Finance, in the collection and administration of the City's Sales and Compensating Use Tax. In order to carry out the provisions of subdivision 2 of section 70 of the Civil Service Law relating to transfers and preferences, appellants obtained from the New York City Director of Finance certification of those employees in the city system who were engaged in the performance of sales tax duties. The State Commissioner of Taxation and Finance then commenced processing transfers to the State system, all transfers being completed by January 1, 1966. The certified list from the city did not contain petitioners' names.
Over 18 months after enactment of the statute authorizing the transfer (and some 14 months after its effective date), a proceeding was commenced by petitioners to compel appellants to tender them offers of employment. This was dismissed. They then presented formal letter requests for employment to the Commissioner of Taxation and Finance in April 1967, which were followed by the present proceeding.
Appellants correctly contend that the application should be denied for a failure to timely apply for the relief. The 4 months period of limitations in an article 78 proceeding in the nature of mandamus, provided for in CPLR 217, is a bar when a petitioner has unreasonably delayed to make a demand so as to postpone indefinitely the time within which to institute such a proceeding (Central School Dist. No. 2 v. New York State Teachers Retirement System, 27 A.D.2d 265, 278 N.Y.S.2d 141).
It appears that transfers from the city to the State were commenced August 1, 1965 (the statute's effective date) and petitioners should have known of the transfers of their associates...
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