| Matter of Civil Serv. Empls. Assn. Inc. v Diana |
| 2008 NY Slip Op 01751 [48 AD3d 803] |
| February 26, 2008 |
| Appellate Division, Second Department |
| In the Matter of Civil Service Employees Association, Inc., et al.,Appellants, v Edward A. Diana, Respondent. |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel therespondent Edward A. Diana to permit the petitioner Ronald J. Greene to vote on all mattersbefore the Orange County Deferred Compensation Committee, the petitioners appeal from anorder and judgment (one paper) of the Supreme Court, Orange County (Alessandro, J.), datedNovember 22, 2006, which, in effect, granted the respondent's motion to dismiss the petition astime-barred, and dismissed the proceeding.
Ordered that the order and judgment is reversed, on the law, with costs, the motion to dismissthe petition is denied, the petition is reinstated, and the matter is remitted to the Supreme Court,Orange County for further proceedings consistent herewith.
At meetings of the Orange County Deferred Compensation Committee (hereinafter theCommittee) held on July 15, 2005, and March 15, 2006, the petitioner Ronald J. Greene, arepresentative of the petitioner Civil Service Employees Association, Inc., Local 1000,AFSCME, AFL-CIO (hereinafter CSEA), assigned to sit on the Committee, was not permitted tovote on issues involving the plan administrator of the deferred compensation plan applicable toCounty employees. Greene and CSEA commenced this CPLR article 78 proceeding in the natureof mandamus in July 2006 to compel the respondent Edward A. Diana, the chair of theCommittee, to permit Greene to vote on these matters. However, the Supreme Court grantedDiana's motion to dismiss the petition as time-barred and dismissed the proceeding. We reverse.[*2]
A proceeding pursuant to CPLR article 78 must becommenced within four months after the challenged determination becomes final and binding onthe petitioner (see CPLR 217 [1]). Contrary to the conclusion of the Supreme Court,Diana failed to establish that his refusal to permit Greene to vote on July 15, 2005 as a memberof the Committee was a final and binding determination that inflicted an actual, concrete injurythat could not be "significantly ameliorated" by subsequent administrative action (Matter ofBest Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30,34 [2005]; see Matter of Essex County v Zagata, 91 NY2d 447, 454 [1998]). Rather, theallegations in the petition refer to a continuing statutory violation (see Matter of Condo Unitsv New York State Div. of Hous. & Community Renewal, 4 AD3d 424, 425 [2004]; seegenerally Selkirk v State of New York, 249 AD2d 818, 819 [1998]; cf. Watson v State ofNew York, 35 AD3d 985, 986 [2006]). Thus, the proceeding was timely commenced withinfour months of the March 15, 2006, refusal to permit Greene to vote.
In view of our determination, the matter must be remitted to the Supreme Court, OrangeCounty to permit Diana to file an answer (see Matter of Bethelite Community Church, GreatTomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8 NY3d1001, 1002 [2007]). Mastro, J.P., Rivera, Covello and Dickerson, JJ., concur.