Practice point: The Appellate Division reversed the dismissal of the terminated employee's petition to annul the agency's action as time-barred.
In informing petitioner by letter that she was terminated, and advising her of the possibility of
review, respondent employed the same language as that used in the article 78 statute of limitations, pursuant to CPLR 217, to inform petitioner that the result of that review
would be "final and binding." The termination letter's language tracked that of paragraph V (G) of Operating Procedure 20-39, which
provides that "[t]he reviewer's decision is final and binding, and is
not subject to further administrative review."
The Appellate Division found that, notwithstanding the fact that the letter otherwise conveyed the effect typically associated with finality for statute of limitations purposes, there was sufficient ambiguity as to finality such
that the petition must be
deemed timely.
Student note: Ordinarily, when an at-will employee's employment is terminated, the four-month statute of limitations
applicable in article 78 proceedings, pursuant to CPLR 217, begins to run from the
date of the termination, regardless of optional
administrative review proceedings. However, where an administrative agency creates ambiguity and the impression of nonfinality, the ambiguity regarding finality is resolved against the agency.
Case: Matter of Matter of Burch v. New York City Health & Hosps. Corp., NY Slip Op 04060
Here is the decision.
Tomorrow's issue: An alleged § 1983 violation.
