McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department
In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings “on the law."
Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*
Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.
In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."
* N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein