Munroe v. Ponte

148 A.D.3d 1025

50 N.Y.S.3d 423

In the Matter of Timothy MUNROE, appellant,

v.Joseph PONTE, etc., et al., respondents.

2015-10767, Index No. 13984/14.

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

March 22, 2017.

Kliegerman & Joseph, LLP, New York, N.Y. (Ronald E. Kliegerman and Michael P. Joseph of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Susan Greenberg and Emma Grunberg of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York City Department of Correction dated February 7, 2014, which summarily terminated the petitioner's employment as a correction officer pursuant to Public Officers Law § 30(1)(e) on the basis of his misdemeanor conviction of falsifying business records in the second degree, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Weiss, J.), entered June 9, 2015, which granted the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

In March 2009, the petitioner, a correction officer employed by the respondent New York City Department of Correction (hereinafter the DOC), was served with disciplinary charges alleging that in January 2009, he left his assigned post without permission or authority and entered a different area of the prison, where he carried on "an undue relationship" with an inmate. Additionally, the petitioner was charged with making "false entries in the ... enhanced security post logbook." In October 2009, the petitioner was indicted on several charges, including falsifying business records in the second degree and attempted assault in the third degree. In 2013, the petitioner was convicted of falsifying business records in the second degree (Penal Law § 175.05 [1 ] ).

In February 2014, the DOC mailed a letter to the petitioner's last known address on file with the DOC advising him that his employment was terminated pursuant to Public Officers Law § 30(1)(e). In August 2014, the petitioner commenced this CPLR article 78 proceeding against the DOC and the Commissioner of the DOC (hereinafter together the respondents), alleging, among other things, that the termination of his employment was arbitrary and capricious. The respondents moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition on the grounds that the petition failed to state a cause of action and that the proceeding was time-barred. In an order and judgment entered June 9, 2015, the Supreme Court granted the motion on the ground that the proceeding was time-barred, and dismissed the proceeding. We affirm, albeit on a different ground than that relied upon by the Supreme Court.

Contrary to the Supreme Court's determination, the four-month statute of limitations did not begin to run when the petitioner was personally served with a copy of the respondents' letter notifying him that his employment had been terminated. At that time, the respondents were on notice that the petitioner had retained counsel to represent him in connection with the disciplinary charges. " ‘[B]asic procedural dictates and ... fundamental policy considerations ... require that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed’ " (Matter of Odunbaku v. Odunbaku, 28 N.Y.3d 223, 227–228, 43 N.Y.S.3d 799, 66 N.E.3d 669, quoting Matter of Bianca v. Frank, 43 N.Y.2d 168, 173, 401 N.Y.S.2d 29, 371 N.E.2d 792 ). Under the circumstances of this case, the respondents were required to serve a copy of the letter on the petitioner's counsel in order for the statute of limitations to commence running (see Matter of Bianca v. Frank, 43 N.Y.2d at 173, 401 N.Y.S.2d 29, 371 N.E.2d 792 ; Matter of Sutherland v. New York State Dept. of Envtl. Conservation, 122 A.D.3d 759, 761, 996 N.Y.S.2d 142 ; Thompson v. Poughkeepsie School Dist., 133 A.D.2d 752, 753–754, 520 N.Y.S.2d 42 ). Accordingly, the court erred in dismissing the proceeding on the ground that it was time-barred.

Since the respondents' motion also sought dismissal on the ground that the petition failed to state a cause of action, and that issue was argued before the Supreme Court and has been briefed by the parties on appeal, we address it in the interest of judicial economy (see Barone v. Barone, 130 A.D.3d 765, 767, 14 N.Y.S.3d 412 ). "On a motion pursuant to CPLR 3211(a)(7) and 7804(f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference" (Matter of Brown v. Foster, 73 A.D.3d 917, 918, 900 N.Y.S.2d 432 ; see Matter of Johnson v. County of Orange, 138 A.D.3d 850, 850–851, 29 N.Y.S.3d 502 ). "In determining such a motion, the sole criterion is whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ " (Matter of Kunik...