State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518492 

________________________________

In the Matter of SCHOOL

ADMINISTRATORS ASSOCIATION

OF NEW YORK STATE et al.,

Appellants,

et al.,

Petitioner, MEMORANDUM AND ORDER

v

NEW YORK STATE DEPARTMENT OF

CIVIL SERVICE et al.,

Respondents.

________________________________

Calendar Date: November 12, 2014

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Arthur P. Scheuermann, School Administrators Association of

New York State, Latham (Jennifer L. Carlson of counsel), for

appellants.

Eric T. Schneiderman, Attorney General, Albany (Julie M.

Sheridan of counsel), for New York State Department of Civil

Service, respondent.

Lamb & Barnosky, LLP, Melville (Jeffrey Mongelli of

counsel), for Brentwood Union Free School District, respondent.

__________

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Teresi, J.),

entered May 10, 2013 in Albany County, which dismissed

petitioners' application, in a combined proceeding pursuant to

CPLR article 78 and action for declaratory judgment, to, among
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other things, review a certain policy memorandum issued by

respondent Department of Civil Service.

Respondent Brentwood Union Free School District

(hereinafter District) is a participating agency in the New York

State Health Insurance Program (hereinafter NYSHIP), which is

administered by respondent Employee Benefits Division of

respondent Department of Civil Service, and by respondent Jerry

Boone, president of the Civil Service Commission (hereinafter

collectively referred to as the State respondents). On May 15,

2012, the Employee Benefits Division issued policy memorandum No.

122r3, which delineated the circumstances under which an employee

of a participating agency may decline health insurance enrollment

in NYSHIP in exchange for a cash payment or other benefit. 

Specifically, the policy memorandum provided – insofar as is

relevant here – that such an employee could opt out of NYSHIP

coverage in exchange for a monetary payment only if he or she had

health insurance coverage available under another employersponsored group other than NYSHIP. In other words, an employee

could not receive an opt-out payment if, for example, he or she

had health insurance coverage through a spouse who also was

covered under NYSHIP. The policy memorandum further provided

that it would take effect immediately.

Petitioner Daniel Robinson is an administrator employed by

the District, a member of petitioner Brentwood Principals and

Supervisors Organization, whose president is petitioner Richard

Loeschner, and a member of petitioner School Administrators

Association of New York State. Although not contractually

obligated to do so, the District had offered a buyout program for

a number of years that enabled its employees to decline NYSHIP

coverage in exchange for a monetary payment representing 50% of

the premium that the District otherwise would have paid to NYSHIP

to provide health insurance coverage for such employee. Robinson

historically participated in the program and, for option year

ending December 31, 2012, received a payment from the District in

the amount of $6,094.92. Under the May 15, 2012 policy

memorandum, however, Robinson no longer was eligible for a

monetary payment because his spouse, under whose plan he was

covered, obtained her health insurance coverage from NYSHIP.
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On March 4, 2013, petitioners commenced this combined CPLR

article 78 proceeding and action for declaratory judgment

seeking, among other things, to declare the policy memorandum to

be null and void and to enjoin the District and respondent Board

of Education of the Brentwood Union Free School District

(hereinafter collectively referred to as the Brentwood

respondents) from discontinuing its past practice of offering the

original NYSHIP buyout program. With respect to the State

respondents, Supreme Court found that the four-month statute of

limitations began to run on the effective date of the policy

memorandum – May 15, 2012 – and, accordingly, dismissed the

proceeding/action against them as time-barred. As to the

Brentwood respondents, Supreme Court found that petitioners'

claim fell within the exclusive jurisdiction of the Public

Employment Relations Board and, therefore, dismissed the

petition/complaint against them for lack of subject matter

jurisdiction. Petitioners now appeal,1 contending only that

Supreme Court erred in dismissing the petition/complaint as timebarred.

The parties agree that this combined CPLR article 78

proceeding and action for declaratory judgment is governed by the

four-month statute of limitations set forth in CPLR 217 (1). In

this regard, both the statute and case law make clear that the

statute of limitations period for a CPLR article 78 proceeding

begins to run when "the determination to be reviewed becomes

final and binding upon the petitioner" (CPLR 217 [1]; accord

Walton v New York State Dept. of Correctional Servs., 8 NY3d 186,

194 [2007]; Matter of Capital Dist. Regional Off-Track Betting

Corp. v New York State Racing & Wagering Bd., 97 AD3d 1044, 1046

[2012]; see Matter of Board of Educ. of the Kiryas Joel Vil.

Union Free Sch. Dist. v State of New York, 110 AD3d 1231, 1232-

1233 [2013], lv denied 22 NY3d 861 [2014]). Such determination,

in turn, "becomes 'final and binding' when two requirements are

met: completeness (finality) of the determination and exhaustion

of administrative remedies. First, the agency must have reached

a definitive position on the issue that inflicts actual, concrete

1 All petitioners except Robinson are named in the notice

of appeal.
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injury and second, the injury inflicted may not be . . .

significantly ameliorated by further administrative action or by

steps available to the complaining party" (Walton v New York

State. Dept. of Correctional Servs., 8 NY3d at 194 [internal

quotation marks and citation omitted]; see Matter of North Dock

Tin Boat Assn., Inc. v New York State Off. of Gen. Servs., 96

AD3d 1186, 1187 [2012]; Matter of Town of Olive v City of New

York, 63 AD3d 1416, 1418 [2009]). In the context of quasilegislative determinations such as the one at issue here, actual

notice of the challenged determination is not required in order

to start the statute of limitations clock; rather, the statute of

limitations begins to run once the administrative agency's

"definitive position on the issue [becomes] readily

ascertainable" to the complaining party (Matter of Riverkeeper,

Inc. v Crotty, 28 AD3d 957, 962 [2006]; see Matter of Owners

Commn. on Elec. Rates v Public Serv. Commn. of State of N.Y., 76

NY2d 779, 780 [1990], revg on dissenting op of Levine, J., 150

AD2d 45, 53 [1989]).

At the heart of the State respondents' statute of

limitations defense is the May 15, 2012 policy memorandum itself,

which redefined the class of employees eligible to participate in

buyout programs offered by participating agencies and, further,

made clear that such policy was "effective immediately."2

Although the subject memorandum indeed contained a "grandfather

clause" that, in effect, afforded a limited grace period to

certain participating agencies with an existing buyout program in

place, the presence of such clause did not render the decision of

the Department of Civil Service as to employee eligibility any

less final, nor did it render the injury allegedly suffered by

Robinson any less concrete. We therefore are satisfied that the

policy memorandum constituted a "definitive position" on the

issue of buyout program eligibility – one that, as to the State

respondents, could not be "significantly ameliorated by further

administrative action" (Walton v New York State. Dept. of

2 There is no question that, as a participating agency, the

District was required to comply with this directive in offering

buyout programs to its employees, including Robinson.
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Correctional Servs., 8 NY3d at 194).3

As to the actual date upon which the four-month statute of

limitations began to run, the State respondents correctly note

that the "readily ascertainable" requirement is styled as a

constructive notice standard; actual, in-hand notice of the

underlying determination is not required (see Matter of

Riverkeeper, Inc. v Crotty, 28 AD3d at 961-962). In this regard,

the State respondents delineated the procedures followed in

disseminating the subject policy memorandum, including mailing

copies to the chief executive officers of all participating

agencies, as well as to any individual who had requested a copy

via the participating agency "Courtesy List," posting the

memorandum on a website for health benefit administrators (to

which union representatives could request access) and discussing

the memorandum at the participating agency regional meetings

hosted by the Department of Civil Service in October 2012 – an

event "attended by over 650 representatives of the approximately

900 local governments that participate in NYSHIP." Under these

circumstances, we are of the view that petitioners' claims

accrued – and the statute of limitations began to run – upon the

effective date of the policy memorandum, i.e., May 15, 2012 (see

Lenihan v City of New York, 58 NY2d 679, 681 [1982]). Moreover,

even if we were to defer the triggering of the statute of

limitations until the October 2012 regional meetings, the instant

proceeding and action – commenced in March 2013 – still would be

time-barred. Petitioners' remaining arguments as to the

timeliness of this matter, to the extent not specifically

addressed, have been examined and found to be lacking in merit. 

Further, in light of our conclusion that this matter is timebarred, we need not address the State respondents' alternative

3 Our conclusion in this regard is in no way altered by

petitioners' attempt to mitigate the impact of the policy

memorandum by filing an improper practices charge against the

District for unilaterally altering its buyout program without

engaging in collective bargaining. The fact that petitioners

might be able to obtain some measure of relief from the Brentwood

respondents does not affect the finality of the Department of

Civil Service's determination vis-a-vis the State respondents.
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ground for dismissal. Accordingly, Supreme Court's judgment is

affirmed.

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court