DZIEDZIC 264 v. GALLIVAN

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Thomas DZIEDZIC, as President and Principal Executive Officer of International Brotherhood of Teamsters, Local No. 264, and Richard Carr, Petitioners-Appellants, v. Patrick M. GALLIVAN, Sheriff of County of Erie, Joel A. Giambra, County Executive of County of Erie, and County of Erie, Respondents-Respondents.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, SMITH, AND PINE, JJ. Reden & O'Donnell, LLP, Buffalo (Terry M. Sugrue of Counsel), for Petitioners-Appellants. Laurence K. Rubin, County Attorney, Buffalo (Kristin Klein Wheaton of Counsel), for Respondents-Respondents.

 Petitioners commenced this CPLR article 78 proceeding seeking to compel respondent Patrick M. Gallivan, who was at that time the Erie County Sheriff, to certify them as eligible for retirement benefits pursuant to section 89-b and article 14-B of the Retirement and Social Security Law. Contrary to petitioners' contention, Supreme Court properly determined that the proceeding is time-barred pursuant to CPLR 217 and dismissed the amended petition.   Although it appears from the amended petition that petitioners seek to compel Gallivan to perform a ministerial act, we conclude that this proceeding seeks review of a discretionary act and thus is in the nature of mandamus to review rather than to compel the performance of a ministerial act.   In determining the nature of a proceeding, we must look to the substance of the relief sought (see New York Civ. Liberties Union v. State of New York, 3 A.D.3d 811, 813, 771 N.Y.S.2d 563, affd. 4 N.Y.3d 175, 791 N.Y.S.2d 507, 824 N.E.2d 947, rearg. denied 4 N.Y.3d 882, 798 N.Y.S.2d 726, 831 N.E.2d 971;  see generally De Milio v. Borghard, 55 N.Y.2d 216, 220, 448 N.Y.S.2d 441, 433 N.E.2d 506).  “It is hornbook law that a mandamus to compel may not force the performance of a discretionary act, but rather [may force the performance of] only purely ministerial acts to which a clear legal right exists” (Matter of Anonymous v. Commissioner of Health, 21 A.D.3d 841, 842, 801 N.Y.S.2d 302;  see Brusco v. Braun, 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724).   Here, petitioners failed to establish that Gallivan had a ministerial duty to certify them as eligible for the relief requested (cf. Brusco, 84 N.Y.2d at 679, 621 N.Y.S.2d 291, 645 N.E.2d 724).

 Because this is a proceeding in the nature of mandamus to review rather than to compel, the limitations period began to run on the date on which the determination at issue had “ ‘its impact’ upon the petitioner[s] who [were] thereby aggrieved” (Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853).   The record establishes that petitioners' attorney wrote a letter to Gallivan dated June 11, 2003 stating that, although other deputies were certified as eligible for the retirement benefits, petitioners “have not been so certified.”   Thus, the record establishes that, by that date if not sooner, petitioners had been “formally, explicitly and unequivocally” informed that they were not certified as eligible for the retirement benefits they seek (Matter of Heck v. Keane, 6 A.D.3d 95, 98, 774 N.Y.S.2d 214), and they failed to commence this proceeding within four months of that date.   This proceeding therefore is time-barred pursuant to CPLR 217.

We have considered petitioners' remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: