IN RE: the Application of Anthony Farina (2026)

Documents reviewed:

NYSCEF Doc No. 1 — Petition, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 2 — Notice of Petition (Motion #01), Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 3 — Exhibit A: Second Amended Complaint, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 4 — Exhibit B: Original Complaint, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 5 — Exhibit C: 3/26/26 Defense Request, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 6 — Exhibit D: 3/30/26 Determination (OAG Reaffirmation Email), Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 7 — Exhibit E: PreSAC Denial (3/13/25), Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 8 — Exhibit F: Along Decision, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 9 — Exhibit G: Walters Decision, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 10 — Memorandum of Law (Petitioner), Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 11 — Affirmation, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 12 — Exhibit A: Affirmation of Diane Farina, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 13 — RJI — Re: Notice of Petition, Filed 07/21/2026 (Rubin, D.)

NYSCEF Doc No. 15 — Affirmation (Motion #01): AI Certification for Petition Papers, Filed 07/22/2026 (Watson, B.)

NYSCEF Doc No. 16 — Affidavit/Affirmation of Service, Filed 08/03/2026 (Rubin, D.)

NYSCEF Doc No. 17 — Affidavit/Affirmation of Service, Filed 08/10/2026 (Rubin, D.)

NYSCEF Doc No. 22 — Order (Other): SoOrdered Amended Brief Schedule, Filed 08/19/2026 (Court User)

NYSCEF Doc No. 23 — Notice of Motion (Motion #02): CPLR § 3211(a)(5), 217 Motion, Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 24 — Memorandum of Law in Support (Motion #02), Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 25 — Exhibit X (Motion #02): Return, Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 26 — Exhibit 1 (Motion #02): Farina Request for Representation 3/11/25, Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 27 — Exhibit 2 (Motion #02): First Amended Complaint in Federal Action (5/19/25), Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 28 — Affirmation (Motion #02): AI Certification, Filed 08/31/2026 (Velasco, Y.)

NYSCEF Doc No. 31 — Memorandum of Law in Opposition (Motion #02), Filed 09/17/2026 (Watson, B.)

NYSCEF Doc No. 32 — Affirmation in Opposition (Motion #02): Affirmation of Bonnie R. Watson, Filed 09/17/2026 (Watson, B.)

NYSCEF Doc No. 33 — Exhibit A (Motion #02): Galliher Decision, Filed 09/17/2026 (Watson, B.)

NYSCEF Doc No. 34 — Exhibit B (Motion #02): Schoff Decision, Filed 09/17/2026 (Watson, B.)

NYSCEF Doc No. 35 — Reply Affirmation (Motion #02): Velasco Reply, Filed 09/21/2026 (Velasco, Y.)

NYSCEF Doc No. 36 — Memorandum of Law in Reply (Motion #02), Filed 09/21/2026 (Velasco, Y.)

BACKGROUND

This Article 78 proceeding arises from the Attorney General's representation determination under Public Officers Law § 17 concerning Petitioner Anthony Farina's role as a defendant in the federal civil rights action Brooks v. Farina, et al., No. 9:25-cv-68 (N.D.NY). On March 13, 2025, the Office of the Attorney General (OAG) issued a written denial of Petitioner's request for defense and indemnification, stating that, based upon review of the complaint and publicly available information, the State was "not authorized to provide for your legal representation or to pay for private counsel to represent you in the Lawsuit"(NYSCEF Doc. No. 7). The letter did not request additional information. The letter also informed Mr. Farina that the OAG had advised the federal court that an extension of his answer deadline was necessary to prevent entry of a default, as mandated by Public Officers Law § 17(2)(c) (NYSCEF Doc. No. 7).

More than one year later, on March 26, 2026, Petitioner submitted what he labeled a "renewed request for representation and indemnification" (NYSCEF Doc. No. 5). Petitioner asserted that the filing of a Second Amended Complaint (SAC) in the federal action required a fresh OAG determination (NYSCEF Doc. No. 5) By email dated March 30, 2026, the Attorney General replied that the Office's "definitive representation determination" remained the March 13, 2025 denial and referred Petitioner back to that letter (NYSCEF Doc. No. 6). No new analysis was conducted, no reconsideration was granted, and no fresh determination was issued. Petitioner commenced this proceeding on July 21, 2026—approximately sixteen months after the March 13, 2025 final and binding determination (NYSCEF Doc. No. 1).

Petitioner contends that the SAC introduced new factual material triggering renewed obligations under Public Officers Law § 17, and that prior decisions involving other correction officers, namely Along, Walters, Galliher and Schoff, demonstrate that the denial of representation was erroneous (NYSCEF Doc. Nos. 8-10, 33-34). Respondent asserts that the matter is time-barred under CPLR § 217(1), that reconsideration does not toll the statute of limitations, that the SAC offered no new evidence unknown at the time of denial, and that the Matter of Along, Index #EFCA2025-002182 and Matter of Walters, Index # EFCA2025-002425 decisions have no bearing on timeliness or on the OAG's individualized determinations (NYSCEF Doc. No. 24).

LEGAL ANALYSIS

The Court first addresses the statute of limitations issue, which is dispositive. Under CPLR § 217(1), an Article 78 proceeding must be commenced within four months after the challenged determination becomes "final and binding." A determination becomes final when it is clear the petitioner seeking review has been aggrieved by it.

Lubin v Board of Education, 60 NY2d 974, 976 (1983).

As the Court of Appeals made clear in Matter of Best Payphones, Inc. v Department of Information Technology & Telecommunications of the City of NY, 5 NY3d 32, 34 (2005), "[f]inality and binding effect" for purposes of CPLR § 217(1) arise only when two requirements are met: first, "the agency must have reached a definitive position on the issue that inflicts actual, concrete injury," and second, "the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party." (citing Stop—The—Barge v Cahill, 1 NY3d 218, 223 (2003); Matter of Essex County v Zagata, 91 NY2d 447, 453 (1998); Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519, 521 (1986), cert. denied, 479 U.S. 985 (1986).

The OAG's March 13, 2025 denial met all the criteria of finality. The letter was unequivocal, advised no further submissions, invited no supplementation, and contained no indication that reconsideration would be available. It advised Petitioner that the Office had requested only ministerial relief in federal court to avoid the entry of a default while representation questions were resolved (NYSCEF Doc. No. 7). Consistent with Lubin and Best Payphones, Inc., the March 13, 2025 determination was final and binding upon receipt because it inflicted an actual, concrete injury by definitively denying representation and left no administrative avenue open for Petitioner to alter or ameliorate that injury. As such, Petitioner had until July 13, 2025 to commence this proceeding, but he did not do so until July 21, 2026, more than one year after the expiration of the statute of limitations (NYSCEF Doc. No. 1).

Petitioner's March 26, 2026 submission does not revive or toll the limitations period. As stated in Matter of Lohman v Egan, 171 AD3d 1490, 1491 (4th Dept 2019), adopting the rule of

Matter of Heysler v Park, 167 AD2d 837, 838 (4th Dept 1990), a second application seeking the same relief, or an application for reconsideration, does not extend or toll the limitations period. Even where petitioners contend that the original determination misconstrued facts or overlooked information, a request for reconsideration cannot be used to circumvent the finality of an earlier determination. As the Fourth Department held in Matter of Heysler v Park, 167 AD2d 837, 838 (4th Dept 1990), relying on and quoting the Court of Appeals' decision in Matter of De Milio v Borghard, 55 NY2d 216, 222 (1982), "the rule that the limitations period begins to run on the date that the determination to be reviewed becomes final and binding would be completely emasculated if the petitioner could extend the commencement of this period by merely requesting that reconsideration be given to a prior decision because it is asserted that the earlier decision was based upon facts which were misconstrued."

Accordingly, reconsideration cannot circumvent finality or toll the statute, the limitations period will begin anew only where the petitioner presents new evidence. This new-evidence requirement is further clarified in Lohman, 171 AD3d at 1491, which explains that a new four-month limitations period arises only where the petitioner presents genuinely new evidence and the agency conducts "a fresh and complete examination of the matter based on [that] evidence." In Lohman, the Court rejected the petitioner's attempt to restart the statute because the materials offered in the subsequent application were already known to the agency at the time of its original determination, relying on Matter of Riverso v DEC, 125 AD3d 974, 976-977, and Matter of Qualey v Shang, 70 AD2d 619, 621, and reaffirming the principle set out in Matter of Heysler v Park, 167 AD2d 837, 838, and Matter of De Milio v Borghard, 55 NY2d 216, 222, that only a new determination issued after an actual reevaluation of new evidence can trigger a new limitations period. Here, the Attorney General undertook no such fresh examination. The OAG's original March 13, 2025 denial expressly stated that its determination was based "upon our review of the Complaint and publicly available information," and the SAC merely repeated information already in the public domain and already known to the OAG at the time of its denial (NYSCEF Doc No. 7). No new administrative determination exists to reset or revive the four-month limitations period, because the SAC did not present any genuinely new evidence and the OAG's March 30, 2026 email simply reaffirmed its prior determination rather than issuing a new one (NYSCEF Doc No. 6).

Petitioner's reliance on the decisions issued in Along, Walters, Galliher and Schoff is misplaced. Those petitioners filed timely within four months of their respective OAG determinations, and those matters were adjudicated on their merits under Public Officers Law § 17 (NYSCEF Doc Nos. 8-9, 33-34). The fact that other correction officers, based on their own fact-specific records, succeeded in showing entitlement to defense does not alter Petitioner's obligations under CPLR§ 217(1). As Lohman and Heysler makes clear, agency determinations are individualized, and the existence of separate decisions involving different petitioners does not extend or revive the statute of limitations in another case. See Matter of Lohman v Egan, 171 AD3d 1490, 1491 (4th Dept 2019); Matter of Heysler v Park, 167 AD2d 837, 838 (4th Dept 1990). Along, Walters, Galliher and Schoff have no bearing on the timeliness of Farina's petition and cannot circumvent an expired statute of limitations.

The Court finds that Petitioner's Article 78 proceeding is time-barred, and because timeliness is a jurisdictional prerequisite, the Court may not reach the merits of Petitioner's POL § 17 claims, including his assertions regarding representation, indemnification, or reimbursement.

For all the foregoing reasons, and upon full review of the submissions and applicable law, it is hereby

ORDERED, that the Verified Petition of Petitioner Anthony Farina is DENIED in its entirety as time-barred under CPLR § 217(1); and it is further

ORDERED, that Petitioner is not entitled to representation, indemnification, reimbursement of attorneys' fees, or any other relief sought under Public Officers Law § 17; and it is further

ORDERED, that this constitutes the Decision & Order of the Court.

ENTER,

Dated: October 5, 2026

Utica, New York

HON. ELIZABETH SNYDER FORTINO J.S.C.

Elizabeth Snyder Fortino, J.