IN RE: Police Officer Christopher JOHNSON (2006)

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered on or about May 25, 2004, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78, to compel respondent, inter alia, to vacate substantiated findings made by it in two cases involving petitioner and to compel the agency to expunge such findings from petitioner's records, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered October 28, 2004, denying reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

 Although the petition was brought well beyond the applicable four-month limitation period (see CPLR 217;  Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853 [1986] ), respondent waived the statute of limitations defense by failing to interpose it in its answer or in a pre-answer motion to dismiss (see CPLR 3211[e];  Dougherty v. City of Rye, 63 N.Y.2d 989, 991-992, 483 N.Y.S.2d 999, 473 N.E.2d 249 [1984] ).   Nonetheless, the petition was properly denied.   Petitioner's challenge to respondent's findings that the civilian complaints against petitioner had been substantiated is unavailing since they were, so far as can be determined on the present record, rationally based on the evidence available to respondent.   Some substantiated findings by the Civilian Complaint Review Board (CCRB), such as the findings related to petitioner's actions in 1995, do not result in formal discipline.   However, this is a matter within the discretion of the Police Commissioner.   The determination as to whether a substantiated CCRB complaint should be expunged or retained, and if retained, whether it should be utilized in personnel decisions, are policy matters entailing the exercise of the Police Commissioner's discretion (New York City Charter § 440[e] ).   Dictating the manner in which such discretion should be exercised is not relief available in this proceeding pursuant to CPLR article 78 (see New York Civil Liberties Union v. State, 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947 [2005] ).