| Matter of Eidt v City of Long Beach |
| 2009 NY Slip Op 03902 [62 AD3d 793] |
| May 12, 2009 |
| Appellate Division, Second Department |
| In the Matter of Douglas Eidt et al., Appellants, v City ofLong Beach, Respondent. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y. (Robert M. Agostisi of counsel),for respondent.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Cityof Long Beach to pay supplemental disability allowances pursuant to General Municipal Law§ 207-a (2), the petitioners appeal from an order and judgment (one paper) of the SupremeCourt, Nassau County (Brandveen, J.), entered March 31, 2008, which granted the motion of theCity of Long Beach pursuant to CPLR 3211 (a) (5) and 7804 (f) 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 todismiss the petition is denied, the petition is reinstated, and the matter is remitted to the SupremeCourt, Nassau County, for further proceedings on the petition.
The petitioners are firefighters who were employed by the City of Long Beach, but are nolonger on active duty. The petitioners each receive an accidental disability retirement allowancefrom the New York State Police and Fire Retirement System (see Retirement and SocialSecurity Law § 363-c). Pursuant to General Municipal Law § 207-a (2), thepetitioners each have the right to receive, from the City, the difference between "the amountsreceived under [their] allowance[s] . . . and the amount of [their] regular salary orwages" until they attain the mandatory service retirement age applicable to them or attain the ageor perform the period of service specified by applicable law for the termination of their service.On June 19, 2007, the Long Beach City Council adopted a resolution which fixed the amounts ofthe supplemental disability allowances it would pay to the petitioners for the fiscal year2007/2008, which commenced on July 1, 2007. After their receipt of the first allowances checksfor fiscal year 2007/2008, the petitioners allegedly realized that the City was underpaying theamount of the supplemental disability allowances to which they [*2]were entitled pursuant to General Municipal Law § 207-a(2). Thereafter, the petitioners met with the City Comptroller to air their grievance and, by letterdated September 19, 2007, they formally demanded, inter alia, that the City pay "the properamount owed." In a responsive letter dated October 12, 2007, the City Comptroller, inter alia,informed the petitioners that "the City is in full compliance with the obligations of [GeneralMunicipal Law] Section 207-a." On November 1, 2007, the petitioners commenced the instantCPLR article 78 proceeding seeking to compel the City to increase the amounts payed inconnection with their supplemental disability allowances in accordance with General MunicipalLaw § 207-a. The City moved to dismiss the petition as time-barred, contending that theproceeding was commenced more than four months after June 19, 2007, when the Long BeachCity Council adopted the resolution fixing the amount of the allowances. The Supreme Courtgranted the motion and dismissed the proceeding. We reverse.
The petitioners correctly contend that this proceeding is in the nature of mandamus tocompel, as opposed to certiorari to review. "[M]andamus lies to compel the performance of apurely ministerial act where there is a clear legal right to the relief sought" (Klostermann vCuomo, 61 NY2d 525, 539 [1984], quoting Matter of Legal Aid Socy. of SullivanCounty v Scheinman, 53 NY2d 12, 16 [1981]; see Matter of Joy Bldrs., Inc. v Ballard, 20 AD3d 534, 535[2005]). Here, the City had previously determined that the petitioners were entitled tosupplemental disability allowances pursuant to General Municipal Law § 207-a (2), butallegedly failed properly to carry out the ministerial act of fully implementing the payment ofsuch allowances. Accordingly, the remedy of mandamus is available to compel the City to act inaccordance with the obligation imposed by that section of the statute.
CPLR 217 (1) provides that a proceeding against a body or officer must be commencedwithin four months "after the respondent's refusal, upon the demand of the petitioner. . . to perform its duty." Where, as here, the proceeding is in the nature ofmandamus to compel, the statute begins to run when there has been a demand for complianceand a rejection thereof (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430[1959]). The City's "refusal" did not occur in the instant matter until October 12, 2007, when theCity Comptroller issued the letter rejecting the petitioner's demand of September 19, 2007(see Matter of Van Aken v Town of Roxbury, 211 AD2d 863, 864). Consequently, thepetition, which was filed on November 1, 2007, or little more than two weeks after the City'srefusal, was timely. Thus, the court should have denied the City's motion to dismiss the petitionas time-barred.
The petitioners' remaining contentions need not be reached in view of our determination.Spolzino, J.P., Santucci, Belen and Lott, JJ., concur.