IN RE: Anthony M. EZZO et al. (2004)

Appeal from an order of the Supreme Court (Caruso, J.), entered June 11, 2003 in Schenectady County, which granted petitioners' application pursuant to General Municipal Law § 50-e (5) for leave to file late notices of claim.

Petitioners are former police officers who sustained disabling injuries while employed by respondent.   In 1999, they gave up their rights under General Municipal Law § 207-c and retired in exchange for respondent's promise to pay each of them workers' compensation benefits of $400 per week for life.   When respondent repudiated the agreement and reduced the payments in May 2000, petitioners applied to the Workers' Compensation Board for recognition and enforcement of the agreement.   By decisions in May and December 2002, the Board denied their applications, finding no evidence of a binding agreement.   Thereafter, in May 2003, petitioners moved for permission to file late notices of claim.   Finding that the applicable limitations period for their proposed claims of mutual mistake, fraudulent inducement and unjust enrichment did not begin to run until the Board denied their applications, Supreme Court granted their motion.   Respondent appeals.

To the extent that petitioners are required to file notices of their claims (see Stanford Hgts. Fire Dist. v. Town of Niskayuna, 120 A.D.2d 878, 879, 502 N.Y.S.2d 548 [1986] ), the applicable limitations period is one year and 90 days from “the happening of the event upon which the claim is based” (General Municipal Law § 50-i[1];  see Klein v. City of Yonkers, 53 N.Y.2d 1011, 1013, 442 N.Y.S.2d 477, 425 N.E.2d 865 [1981];  Kitonyi v. Albany County, 128 A.D.2d 1018, 1019, 513 N.Y.S.2d 555 [1987];  Doyle v. 800, Inc., 72 A.D.2d 761, 762, 421 N.Y.S.2d 379 [1979] ).¹  Supreme Court erred in finding that the triggering event here was the Board's denial of petitioners' applications because they now do not seek judicial review of the Board's actions (cf. Ford v. Snashall, 275 A.D.2d 493, 494, 712 N.Y.S.2d 658 [2000] ).   Inasmuch as they now seek damages or reinstatement instead, they were not required to first pursue an administrative remedy.   Their claims to this alternative relief became actionable when respondent repudiated its agreement (see Bellanca v. Grand Is. Cent. School Dist., 275 A.D.2d 944, 945, 715 N.Y.S.2d 184 [2000] ).

Also, Supreme Court's reliance upon State of New York v. Hollander, 245 A.D.2d 625, 664 N.Y.S.2d 862 [1997], lv. denied 92 N.Y.2d 801, 677 N.Y.S.2d 71, 699 N.E.2d 431 [1998] and State of New York v. Mayflower Nursing Home, 144 A.D.2d 657, 535 N.Y.S.2d 377 [1988] is misplaced, for those cases hold that a common-law cause of action to recover Medicaid overpayments accrues only upon a final administrative determination of the amount of overpayment.   By contrast, petitioners' claims were not dependent on an administrative determination of the amount of benefits to be paid.   They merely sought to enforce respondent's agreement as to that amount in an administrative forum before seeking alternative relief in a judicial one.   There was no bar to the assertion of those claims simultaneously.

In short, petitioners' claims were triggered by respondent's repudiation of the agreement in May 2000.   Thus, they would be timely only if asserted within one year and 90 days thereafter (see Bellanca v. Grand Is. Cent. School Dist., supra at 945, 715 N.Y.S.2d 184).   Inasmuch as petitioners did not seek to file late notices of claim until May 2003, Supreme Court lacked authority to grant their motions (see Pierson v. City of New York, 56 N.Y.2d 950, 954-955, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982];  Schwinghammer v. Sullivan W. Cent. School Dist., 2 A.D.3d 1126, 1126-1127, 768 N.Y.S.2d 696 [2003];  Serkil, L.L.C. v. City of Troy, 259 A.D.2d 920, 921-922, 686 N.Y.S.2d 892 [1999], lv. denied 93 N.Y.2d 811, 694 N.Y.S.2d 633, 716 N.E.2d 698 [1999] ).

ORDERED that the order is reversed, on the law, without costs, and application denied.

FOOTNOTES

1.   Notably, plaintiffs' nontort claims, if any, would not be constrained by this limitation.

ROSE, J.

CREW III, J.P., PETERS, MUGGLIN and KANE, JJ., concur.