Matter of Cowan v Kelly

Matter of Cowan v Kelly 2011 NY Slip Op 08294 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Mazzarelli, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
6082 106108/09

[*1]In re Richard Cowan, Petitioner-Appellant,

v

Raymond Kelly, etc., et al., Respondents-Respondents.




Jeffrey L. Goldberg, Lake Success, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered December 23, 2009, denying the petition and dismissing this article 78 proceeding seeking to annul the determination of respondents to remove petitioner's firearms and not issue him a Certificate of Service, unanimously affirmed, without costs.

Pursuant to CPLR 217(1), any proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. The determination becomes final and binding when the petitioner has received notice of the determination and has been aggrieved thereby (see Matter of Yarbough v Franco, 95 NY2d 342 [2000]).

The decision to place petitioner on "No Firearms" status was final on December 2, 2008. Petitioner was forced to check his firearms on that date and to surrender his identification card. Since the ultimate relief petitioner seeks is review and modification of his status, he became aggrieved by and received notice of the respondents' determination on that date (see Matter of Rocco v Kelly, 20 AD3d 364 [2005]). The commencement of this article 78 proceeding on or about April 30, 2009, was beyond the four-month period of limitations, and the proceeding was properly dismissed as time-barred.

Petitioner's claim that he was not aggrieved until he received no response from respondents to his memorandum of February 20, 2009, requesting the removal of the "No Firearms" designation from his retiree identification card, is unavailing. Petitioner's memorandum constituted nothing more than a request for reconsideration of the respondents' determination of his status, and therefore, did not toll or revive the statute of
limitations (see Matter of Moskowitz v New York City Police Pension Fund, 82 AD3d 473 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2011

CLERK