Matter of Martin v Schriro
2012 NY Slip Op 30971(U)
April 11, 2012
Supreme Court, New York County
Docket Number: 112251/11
Judge: Donna M. Mills
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SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY
PRESENT : DONNA M. MILLS
In the Matier ofthe Appltcation of RONALD MARTIN,
THE NEW YORK CITY DEPARTMENT OF
CORRECTIONS; el al.,
The following papers, numbered 1 to
were read on this motion
Notice of MotiodOrder to Show Cause-Affidavits- Exhbits ....
Answering Affidavits- Exhibits
1 2 5
Upon the foregoing papers, it is ordered that this motion is:
DECIDED I ACCORDANCE WITH ATTACHED MEMORANDUM DECIS
I/ FINAL DISPOSITION
For a Judgment under Article 78
of the Civil Practice Law and Rules.
Dr. Dora Schriro, Correction Commissioner of t h e
New York City Department of Correction; THE
NEW YORK CITY DEPARTMENT OF
CORRECTION; and THE CITY OF NEW YORK,
Index No. 112251/11
APR 1 2 2012
COUNTY CLERKS OFFICE
In this Article 78 proceeding, petitioner Ronaid Martin, a correction officer
currently employed by the New York City Department of Correction (âDOCâ), brings this
proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules seeking
an order directing the DOC to expunge references to his being psychologically unfit to
carry a firearm and compelling DOC to reinstate his firearm privileges. Respondents
now cross-move to dismiss the petition on the grounds that the petition is time-barred
by the four-month statute of limitations applicable to an Article 78 special proceeding,
and in the alternative, that the petitioner has failed to exhaust his administrative
The events leading up to DOCâs decision to label Officer Martin as unfit to carry a
firearm have to do with two complaints made by another correction officer. In April of
2010, a fellow Correction Officer assigned to the Fire Safety Unit filed the first complaint
alleging that petitioner had made
with the DOCâs Equal Employment Office (â6EEOââ)I
derogatory, race and gender based comments in and around the workplace. The
second complaint is dated April 30, 2010.
EEO spoke to Officer Martin on June 24, 2010 in connection with the complaints.
On October 19, 2010, the charges were ultimately determined by â¬EO to be
unsubstantiated. However, it was alleged that during the June 24, 2010, EEO interview,
petitioner abruptly refused to answer any further questions and threatened other
members of DOCâS staff.
As a result of the allegations that Officer Martin threatened DOC staff, he was
sent to its Health Management Division (âHMDâ) on June 30, 2010 to be seen by a
psychologist. HMD is a unit within DOC that monitors correction officers on sick leave
and is staffed by doctors and nurses.
As a result of the June 30, 2010 appointment with a psychologist at HMD, HMD
determined that he was psychologically not qualified to carry a weapon. Consequently,
DOC confiscated petitionerâs weapon and transferred him to a different command
assignment. Subsequently, in an effort to have HMD reconsider its determination,
petitioner met with HMD personnel a number of times. During these meetings petitioner
submitted two independent psychological evaluations. In response, HMD requested a
three-page report from petitionerâs personal physician detailing his menta fitness to
possess a firearm. Petitioner did not submit the requested report to HMD.
On June 20, 201 1, petitioner, through his attorneys, wrote to the Office of the
Commissioner of the DOC. In that letter, petitioner disputed HMDâs determination that
he was psychologically unfit to carry a firearm and objected to HMDâs requirement that
he submit further medical documentation. On August 5, 201 1, DOC replied to petitioner
that HMD would not be able to reevaluate petitionerâs firearms privileges unless and
until he submitted the requested report.
Petitioner filed the instant Article 78 petition on October 27, 201 I,
DOCâS refusal to restore his firearms privilege and reverse its finding that Officer Martin
is psychologically unfit to carry a firearm as arbitrary and capricious. Petitioner claims
that HMD wholly relied on the account of the EEO investigators, who alleged that
petitioner threatened certain DOC personnel, and only superficially investigated the
circumstances underlying those events.
Respondents argue that petitionerâs Article 78 proceeding in this case is time
barred. They contend that when HMD determined that petitioner was psychologically
not qualified to carry a weapon on June 30, 2010, he was therefore aggrieved by that
determination, and his claim accrued, as of that date. Petitioner did not commence this
Article 78 proceeding until October 27, 201 1, more than a year from the date of HMDâs
An Article 78 proceeding must be commenced âwithin four months after the
determination to be reviewed becomes final and binding on the petitionerâ (CPLR 217
I]). agency determination becomes final and binding when the aggrieved party
received actual notice of the determination. (Matter of Metropolitan Museum Historic
Dist. Coalition v De Montebello, 20 AD3d 28 [Ist Dept 20051).
In an effort to avoid the four-month limitations period applicable to special
proceedings, petitioner contends that his cause of action to bring this Article 78 action
began to run on August 5, 201 1, upon receiving the letter from DOCâS Office of Legal
Counsel denying his request for restoration of his firearm privileges.
âA challenged determination is final and binding when it âhas its impactâ upon the
petitioner who is thereby aggrievedâ (Matter of Edmead v McGuire, 67 NY2d 714, 716
), e.g., when a request for reinstatement is unequivocally denied (Matter of Drake
v Reuter, 27 AD3d 736 ). A request for reconsideration of an administrative
determination will not extend the four-month limitations period (Matter of De Milio v
Borqhard, 55 NY2d 216, 220 ). Where, however, an agency holds a new hearing
at which new testimony is taken, new evidence is proffered and new matters are
considered, or reconsideration of the matter appears to b e on a fresh look at the merits,
the statutory period within which to commence a review proceeding is renewed (Chase
v Board of Educ. of Roxbury Cent. School Dist., 188 AD2d 192, 197 ).
Petitionerâs claim accrued when he received DOCâs letter of June 30, 201 0,
revoking his firearms status. DOCâs subsequent rejection of his request on August 5,
201 1 merely referenced the original revocation of his firearm, and there was no new
determination to be challenged by way of an Article 78 proceeding, since the August
201 1 denial did not âconstitute the sort of âfresh, complete and unlimited examination
into the meritsâ as would suffice to revive the Statute of Limitationsâ (Ravkowski v New
York Citv Department of Trans., 259 AD2d 367 [Iâ
An Article 78 proceeding is a special proceeding. It may be summarily
determined upon the pleadings, papers, and admissions to the extent that no triable
issues of fact are raised. (CPLR 409 [b]; 7801, 7804 [h].) Thus, much like a motion for
summary judgment, the court should decide the issues raised on the papers presented
and grant judgment for the prevailing party, unless there is an issue of fact requiring a
trial. (CPLR 7804 [h]; Matter of York v McGuire, 99 AD2d 1023 , affd 63 NY2d
In the instant action, since the DOC did not undergo a fresh, complete and
unlimited examination into the merits of the June 30, 2010 decision, the DOC'S
subsequent letter does not constitute a new and final determination that may be
challenged in the instant Article 78 proceeding (see Eldaqhar v New York City Hous.
Auth., 34 AD3d 326, 327
Dept 20061). Accordingly, the petition should be dismissed
In light of the dismissal on statute of limitations grounds, this Court declines to
address the respondent's alternative argument seeking dismissal on failure to exhaust
Accordingly, it is hereby
ORDERED and ADJUDGED that t h e petition is denied and the proceeding is
J. S .C.
COUNTY CLERK'S OFFICE