IN RE: John J. Lynch (2014)

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered January 18, 2013, granting respondents' cross motion to dismiss the petition to annul the determination that petitioner is not entitled to payment of $18,758 for unused annual leave at retirement, denying the petition, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed on the law, without costs, the cross motion denied, the petition reinstated, and the matter remanded for further proceedings.

The motion court erred in finding that the petition was not filed within the four month statute of limitations applicable to article 78 proceedings (see CPLR 217[1] ).   There were two components to the “actual, concrete injury” (see Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005] ) giving rise to petitioner's claim that respondents improperly determined that his unused annual leave had been miscalculated resulting in an overstatement of the amount he was to be paid upon his retirement in 2010.   While the first determination, that petitioner was credited with approximately forty more days of annual leave than he was entitled to between 1992 and 1999, was definitively communicated to petitioner in June 2011, the second, that the “six-year rule,” which would have limited recoupment to a period of six years preceding discovery of the error, did not apply to managers, such as petitioner, was not decided by respondents until March 2012.

Notably, in June 2011, the City's Human Resources Administration took the position that petitioner was covered by the six-year rule, and the issue remained unsettled for more than ten months thereafter.   Accordingly, the petition, filed on July 26, 2012, was timely, having been filed within four months of the March 27, 2012 determination that the six-year rule did not apply to petitioner.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK