Matter of Taylor v New York State Div. of State Police
Annotate this CaseDecided on September 28, 2004
Supreme Court, Albany County
In the Matter of the Application of CLINT TAYLOR, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- THE
against
NEW YORK STATE DIVISION OF STATE POLICE, Respondent.
2623-04
Petitioner: Stephen G. DeNigris, Esq.
Respondent: Eliot Spitzer, Attorney General of the State of
New York by David L. Fruchter, Assistant Attorney General
John G. Connor, J.
Petitioner seeks an order pursuant to Article 78 of the CPLR reversing Respondents' January 7, 2004 determination terminating him from his position in the New York State Troopers for possession of child pornography. Respondent moves to dismiss the Petition on the grounds that (1) Petitioner's claims are barred by the applicable statute of limitations and (2) Petitioner failed to obtain jurisdiction over the Respondent. Petitioner cross-moves for an order pursuant to CPLR 306-b to extend the time to perfect service of process upon the Respondent for good cause shown or in the interests of justice.Commencement of an Article 78 proceeding is deemed to have occurred upon the filing of the Notice of Petition and Petition in the County Clerk's Office. McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. §306-a. The proceeding must be commenced within four months of the final determination from which Petitioner seeks redress. McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. §217. Here Petitioner challenges a January 6, 2004 determination, served upon Petitioner January 7, 2004 and upon Petitioner's counsel January 12, 2004. Petitioner filed his Notice of Petition and Petition with the Albany County Clerk on May 5, 2004, less than four months after the final determination of Respondent. [*2]
Respondent argues that, notwithstanding the timely filing of the Notice of Petition and Petition, the proceeding should be deemed untimely since Petitioner did not properly serve Respondent pursuant to CPLR 307. Petitioner admits that he did not properly effectuate service pursuant to CPLR 307 but argues that his counsel diligently attempted service, that notice of the proceeding was provided to Respondent, that the Statute of Limitations would preclude the Petitioner from refiling the Petition, that the delay was de minimis and that there was no prejudice to Petitioner as a result of the late service. Petitioner further contends that there was no evidence of his possessing child pornography and that Respondent's determination was arbitrary, capricious, and not supported by the evidence presented.
CPLR 306-b provides in pertinent part:
Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, third-party summons and complaint, or petition, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.
McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. §306-b. In order to constitute "good cause" Petitioner must show that the failure to serve process in a timely manner was a result of exceptional circumstances beyond his control. See, State of New York v. Sella, 185 Misc.2d 549 (2000). Counsel's inadvertence, neglect, mistake, or misplaced reliance does not constitute "good cause" under the statute. Id., at 553. The Court does not find that Petitioner has shown "good cause" for an extension of the time to serve Respondent.
Notwithstanding the aforesaid, the inquiry is different for determining whether Petitioner met the "interests of justice" standard. The Court of Appeals set forth the factors to be considered by the Court in determining whether to extend the time of service in the "interests of justice", to wit:
Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statue of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.
[*3]Leader v. Maroney, Ponzini, 97 N.Y.2d 95, 105-106 (2001). The Court finds that although Petitioner's counsel did not follow the strict guidelines of CPLR 307, and the Court does not countenance ignoring the rules of civil practice, the time period for Petitioner to properly serve Respondent should be extended in the interests of justice. Petitioner's counsel, who practices in Washington, D.C., timely served the Office of the Attorney General by personal service and timely sent a copy of the papers, albeit via U.S. Postal Service 2-day Priority Mail, to counsel in the Office of the State Police with whom he had been dealing within the context of the disciplinary proceedings against Petitioner. Counsel for the State Police never rejected the papers or communicated with Petitioner's counsel relative to said service. Proper service should have been upon a state officer or to the chief executive officer of such agency by personal delivery or in the alternative by certified mail, return receipt requested, as set forth in the CPLR 307. Petitioner's counsel apparently did not realize his mistake until receipt of Respondent's Motion to Dismiss, at which time he cross-moved for an extension under CPLR 306-b. The Statute of limitations had expired at the time Respondent made its motion making it impossible for Petitioner to cure his mistake. Petitioner alleges that he was dismissed from his job for a crime he did not commit and attests that he has a meritorious action. Respondent was aware of Petitioner's claim, since both counsel for Respondent and the Office of the Attorney General received timely notification of the claim, and no prejudice will ensue if the Court grants an extension of time for Petitioner to effectuate service in accordance with CPLR 307.
Accordingly, Respondent's motion to dismiss is denied and Petitioner's cross-motion for an extension of time to effectuate service pursuant to CPLR 307 is granted without costs. Petitioner shall serve Respondent within fifteen (15) days of the date of this Decision and Order. The aforesaid opinion constitutes the Decision and Order of this Court. All papers shall be forwarded to counsel for Petitioner for filing and service. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relative to filing, entry and notice of entry.
SO ORDERED.
Dated:September ,2004
Hudson, New York
-
JOHN G. CONNOR
Justice of the Supreme Court
[*4]
Papers Considered: Notice of Petition; Verified Petition of Clint Taylor with Exhibits annexed; Petitioner's Cross-Motion for an Order extending the time to serve process, together with Affidavits of Stephen DeNigris, Esq. and Clint Taylor, and Affirmation of Stephen DeNigris, Esq. in support thereof, and in opposition to Respondent's Motion to Dismiss; Memorandum of Law of Stephen DeNigris, Esq.; Appendix of Cases of Stephen DeNigris, Esq.; Respondent's Notice of Motion to Dismiss, together with Affirmations of David Fruchter, Esq. and Darren O'Connor, Esq. in support thereof with Exhibits annexed; Reply Affirmation of David Fruchter, Esq.
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