Lieblich v Teachers' Retirement Sys. of the City of N.Y.

Lieblich v Teachers' Retirement Sys. of the City of N.Y. 2020 NY Slip Op 01968 Decided on March 19, 2020 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 March 19, 2020
Renwick, J.P., Gische, Mazzarelli, Webber, Singh, JJ.
11294 654551/17

[*1]Irving Lieblich, etc., Plaintiff-Appellant,

v

Teachers' Retirement System of the City of New York, Defendant-Respondent.

Squitieri & Fearon, LLP, New York (Stephen J. Fearon, Jr. of counsel), for appellant.

Georgia M. Pestana, Acting Corporation Counsel, New York (John Moore of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about January 22, 2019, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's challenge to defendant's calculation of his pension is a challenge to an administrative determination, which should have been brought pursuant to CPLR article 78, and is barred by the applicable four-month statute of limitations (CPLR 217[1]; see Hughey v Metropolitan Transp. Auth., 159 AD3d 596, 597 [1st Dept 2018]; Clissuras v City of New York, 131 AD2d 717, 718 [2d Dept 1987], appeal dismissed 70 NY2d 795 [1987], cert denied 484 US 1053 [1988]).

The determination - the exclusion of plaintiff's 2011 summer pay from the calculation of his pension benefits - became final and binding upon plaintiff in October 2011, when he received his benefits letter from defendant (see Matter of Eldaghar v New York City Hous. Auth., 34 AD3d 326, 327 [1st Dept 2006], lv denied 8 NY3d 804 [2007]). Defendant's February 22, 2017 letter responding to plaintiff's inquiry and stating that "there is nothing further than can be done" did not extend the limitations period (id.).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 17, 2020

CLERK