TOOLASPRASHAD v. CITY OF NEW YORK (2019)

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered June 1, 2017, dismissing the complaint, pursuant to an order, same court and Justice, entered on or about May 3, 2017, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a former police officer, brings this plenary action to challenge the vesting date of his right to receive Police Pension Fund payments.  The gravamen of plaintiff's claims is a review of the Police Pension Fund's administrative determination of his vesting date, which must be asserted in a CPLR article 78 proceeding (see Hughey v. Metropolitan Transp. Auth., 159 A.D.3d 596, 597, 74 N.Y.S.3d 16 [1st Dept. 2018];  Purcell v. City of New York, 110 A.D.3d 535, 973 N.Y.S.2d 167 [1st Dept. 2013], lv denied 22 N.Y.3d 859, 2014 WL 113796 [2014] ).  Because plaintiff did not assert his claims within the four-month statute of limitations applicable to article 78 claims, they are time-barred (CPLR 217[1] ).

In any event, the record shows that he failed to state a claim for breach of contract as the complaint does not make mention of a contract.  Furthermore, even if plaintiff stated a claim for a declaratory judgment that his right to receive pension payments vested in or about June 2011, based particularly on the prior holding of this Court that the 30–day vesting period “began running anew following the Court of Appeals' denial of leave to appeal” in that action (Matter of Toolasprashad v. Kelly, 110 A.D.3d 509, 510, 975 N.Y.S.2d 1 [1st Dept. 2013], lv denied 23 N.Y.3d 902, 2014 WL 1776596 [2014] ), such declaration as to the vesting date of plaintiff's right to receive pension payments would not bear on the calculation of his pension payment (see Administrative Code of City of N.Y. §§ 13–256 and 13–218).