DECISION & ORDER The e-filed documents for Motion Sequence 001, listed by NYSCEF document numbers “2,” through “56,” have been read and considered on these motions. Upon the foregoing papers, the petition of Matthew Waholek, Jennifer Sheehan, Catherine O’Halloran, Alexis Mullally, Martin Evans, and Edward Korona, pursuant to CPLR Article 78, inter alia, for a judgment annulling a determination of Hicksville Board of Fire Commissioners (“the Board”) and Hicksville Fire Department (“HFD”) affecting Petitioners’ years of service in the HFD, and the cross-motion of Respondents, the Board, HFD, Thomas B. Ofenloch, Dennis G. Mulligan, Albert M. Merk, Robert Dwyer, Robert Chiz, and Gerard Mulholland, to dismiss the petition pursuant to CPLR 7804 and CPLR 3211(a)(5) as time-barred, are determined as hereinafter set forth. Background Petitioners are all volunteer members of the HFD. On April 29, 2024, Petitioners commenced this Article 78 proceeding against Respondents, consisting of the Board, the HFD, and members of the Board, seeking a judgment annulling and setting aside a determination refusing to award a year of service to the Petitioners for the years 2020 and/or 2021; directing Respondents to restore the year(s) of service to Petitioners and all the accompanying benefits the year(s) of service may bestow on Petitioners; and directing Respondents to forthwith implement the appropriate administrative actions under the HFD Bylaws. Petitioners allege that on or about January 1, 2024, the Board served them with notice that they had failed to attain their 2020 and/or 2021 required attendance department percentages per the HFD Bylaws, and accordingly, would not be given year-of-service credit for one or both years. The petition further alleged that by letter of the Board dated March 19, 2024, to the HFD Chief’s Office, the Board indicated its determination was final and it would not reconsider the matter. Respondents cross-move to dismiss the petition contending that it is time-barred, and that Petitioners mislead the Court by indicating that the January 1, 2024 letter was the relevant determination. According to Respondents, the January 1, 2024 letter was a request to reconsider the final determination that was issued on July 12, 2022, when the Board voted “to adjust the records for 2020 and 2021 year of service for the members that didn’t make their percentage.” Respondents contend the statute of limitations began to run on that date, and since Petitioners did not commence this proceeding within four months of that date, it is time-barred. Respondents further argue that even if this Court finds that the statute of limitations was extended by letters sent by the HFD Chief’s Office to Petitioners in January and February 2023, which advised Petitioners of their “right to appeal” the July 12, 2022 decision, the statute of limitations would have begun to run on May 9, 2023, when Petitioners appeals were denied, and therefore, the proceeding would still be time-barred. Petitioners oppose the cross-motion, contending that Respondents failed to provide notice and to accord them due process as required by the Bylaws when disciplinary charges are brought against members; the letters mailed in January and February 2023, informing them of their right to appeal, clearly made any determination rendered prior thereto not binding and final; and the next notification they received after those letters was the letter dated January 1, 2024. Since the proceeding was commenced within four months of January 1, 2024, Petitioners contend it was timely commenced. Analysis “A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner.” (Munro v. New York City Human Resources Admin., Off. of Child Support Enforcement, 221 A.D.3d 904, 906 [2d Dept. 2023] [internal quotation marks omitted]; see CPLR §217[1]). “There are two requirements for fixing the time when [the] agency action is deemed final and binding.” (Matter of Rodas v. RISC Program, Family Servs., Inc., of Dutchess County, 163 A.D.3d 682, 683 [2d Dept. 2018]). “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.” (Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34 [2005]). “A party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the proceeding was commenced.” (Munro v. New York City Human Resources Admin., Off. of Child Support Enforcement, 221 A.D.3d at 906 [internal quotation marks omitted]). Here, Respondents have failed to establish that the July 12, 2022 determination was the final and binding determination which commenced the running of the statute of limitations. “A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted.” (Matter of Carter v. State, Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270 [2000]). Respondents have failed to show either notice or finality with respect to the July 12, 2022 determination. At the meeting on July 12, 2022, the Board agreed to adjust the records of those members who did not meet the percentages for the years 2020 and 2021. The members whose records were being adjusted were not named or included in the minutes of the meeting; rather, the minutes merely indicated that a list of names would be provided to the District Clerk. Although Respondents claim that a public meeting can provide notice of an administrative action, (See Matter of Norris v. Walcott, 36 Misc. 3d 711, 722 [Sup Ct., New York County 2012]), here, Respondents’ evidence fails to establish that notice was provided to Petitioners at the meeting on July 12, 2022. Nor have Respondents established that Petitioners’ administrative appeals had been exhausted as of July 2022. The HFD Bylaws require a specific course of conduct to be followed upon finding that a member has failed to meet the attendance requirements, including, inter alia, that the member be notified in writing of the charges within ten business days of the charges, by registered mail, return receipt requested, and that a hearing be scheduled within twenty days after the returned receipt is received by the Chief’s Office. Further, the Hearing Committee’s decision must be mailed to the member also by registered mail, return receipt requested, and the member has the right to appeal to a Grievance Committee. After a hearing before the Grievance Committee, the member has the right to appeal that determination to the Board. Respondents have failed to submit evidence in support of their cross-motion showing that the required protocols were followed in Petitioners’ cases. The evidence Respondents do submit does not support their contention that the July 2022 determination was final and that anything after that was a “request to reconsider.” Respondents submit, inter alia, letters which were mailed on January 28, 2023, to Catherine O’Halloran, Alexis Mullally, and Matthew Waholek, informing them that “due to missing your department percentage requirements for the year 2020, you were in violation of Department By-Law, Article VII, section 3 and Chiefs Policy 34 (which was in effect at that time) and will not be given a year of service credit for that year. You are being informed of this decision at the direction of the Board of Fire Commissioners. You have the right to appeal this decision, by contacting the Chiefs Office in writing.” (See NYSCEF Doc. No. 52). A similar letter relating to the year 2021 was mailed to Jennifer Sheehan, Alexis Mullally, Edward Korona, Martin Evans, and Catherine O’Halloran on February 14, 2023. (See NYSCEF Doc. No. 53). Given that as of January and February 2023, Petitioners’ administrative appeals had clearly not been exhausted, there could not have been a final and binding determination prior to that time. (See Matter of Carter v. State, Exec. Dept., Div. of Parole, 95 N.Y.2d at 270). Respondents next contend this proceeding is still time-barred since any appeals arising from the letters mailed in January and February were denied at a meeting of the Board on May 9, 2023. After the letters were mailed to Petitioners in early 2023, the HFD Chief’s Office notified the Board, by letter dated February 26, 2023, that many of the members had elected to grieve the removal of a year of service for the year 2020 and/or 2021, and the Chief’s Office had unanimously recommended reinstating the year of service to every member it had been taken away from for those years. According to the letter, this decision was made based on the lack of due process afforded to the members under the District and HFD Bylaws, as well as complications due to the COVID-19 pandemic. At a regular meeting of the Board held on May 9, 2023, the Board rejected the recommendation of the Chief’s Office and voted to impose the loss of the year(s) of service. Therefore, Respondents contend, the determination was definitely final as of May 9, 2023, and therefore, since Petitioners did not commence this proceeding by September 9, 2023, it is time-barred. Respondents’ contentions lack merit. Respondents have not submitted any evidence to show that Petitioners were notified of the May 9, 2023 determination, more than four months before this proceeding was commenced. (See Munro v. New York City Human Resources Admin., Off. of Child Support Enforcement, 221 A.D.3d at 906). “[F]undamental fairness requires that the aggrieved party be notified of the administrative determination before the statutory period in which to seek review commences.” (Matter of Richardson v. New York City Hous. Auth., 89 A.D.3d 1091, 1092 [2d Dept. 2011] [internal quotation marks omitted]). “If an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his [or her] day in court.” (Matter of Carter v. State, Exec. Dept., Div. of Parole, 95 N.Y.2d at 270 [internal quotation marks omitted]). Petitioners acknowledge receiving the letter dated January 1, 2024, which includes their names among the members who would be losing a year of service for the year 2020 and/or 2021 and indicates that each member was provided with their due process rights and the right to be heard under HFD rules.1 Accordingly, the Court finds that this determination was an unequivocal denial of Petitioners’ request for relief and “left no doubt that there would be no further administrative action.” (Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom, of City of N.Y., 5 N.Y.3d at 34 [internal quotation marks omitted]). Although the Court agrees with Respondents that the March 19, 2024 letter represented “a request for discretionary reconsideration” after the determination became final and binding on January 1, 2024, and as such, did not “serve to extend the statute of limitations.” (Servedio v. Lee, 188 A.D.3d 891, 892 [2d Dept. 2020]), this point is academic, given that Petitioners timely commenced this proceeding on April 29, 2024, within four months of the January 1, 2024 determination. As such, Respondents’ cross-motion is denied. A respondent in a proceeding pursuant to CPLR article 78 may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition (see CPLR 7804[f]). If the court denies the respondent’s motion to dismiss, “the court shall permit the respondent to answer, upon such terms as may be just” (see Roff v. Green Hills of Glenham Condo. Ass’n, Inc., 97 A.D.3d 830, 831, 949 N.Y.S.2d 156, 158 [2d Dept. 2012]). Accordingly, it is hereby, ORDERED that Respondents’ cross-motion pursuant to CPLR §§3211(a)(5) and 7804 to dismiss the petition is DENIED; and it is further ORDERED that pursuant to CPLR §7804(f), Respondents shall have twenty days from service of a copy of this Order with notice of entry to serve and file an answer to the petition. Petitioners shall serve and file a reply within ten days after service of an Answer. (See Matter of Bill’s Towing Serv., Inc. v. County of Nassau, 83 A.D.3d 698, 699 [2d Dept. 2011]); and it is further ORDERED that all requests for relief not specifically addressed herein are DENIED. This shall constitute the Decision and Order of the Court. Dated: September 14, 2024
