Matter of Castro v Kelly

[*1] Matter of Castro v Kelly 2010 NY Slip Op 52172(U) [29 Misc 3d 1236(A)] Decided on December 15, 2010 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2010
Supreme Court, New York County

In the Matter of the Former Police Officer Jason Castro, Petitioner,

against

Raymond W. Kelly, as Police Commissioner of the City of New York, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Respondents.



106277/2010



For petitioner:

Howard Sterinbach, Esq.

Worth, Longworth & London, LLP

111 John St, Suite 640

New York, NY 10038

(212) 964-8038

For Respondents:

Michael A. Cardozo, Esq.

Corporation Counsel

by: Gianfranco J. Cuadra, Esq.

Special Assistant Corporation Counsel

New York City Law Department

100 Church St, Rm 2-300

New York, NY 10007

(212) 788-6838

Michael D. Stallman, J.

In this Article 78 proceeding, the issue presented is whether, for the purposes of computing salary and benefits, respondents were required under Military Law § 243 to adjust petitioner's date of appointment so as to include the time that petitioner was on active military duty prior to his employment as a police officer.

BACKGROUND

According to the Article 78 petition, some time in 2003 or 2004, petitioner Jason Castro passed examination number 2045 to become a police officer with the New York City Police Department, and he was placed on list number 1910. On or about March 25, 2005, petitioner enlisted with the United States Army reserves, and was sent for six months of basic training at Fort Jackson in South Carolina. While he was in South Carolina, his number for the NYPD had been called, and petitioner was informed that the next NYPD class would begin in January 2006.

Petitioner believed that it was impossible to start with the January 2006 class of NYPD recruits because the United States Army was deploying him overseas in 2006. According to petitioner, he was deployed with the United States Army at the Iraq/Kuwait border for approximately fifteen months. Petitioner was allegedly discharged from active military duty and returned to New York on or about October 13, 2007.

By letter dated March 28, 2008, petitioner was informed that his name was placed on a special military list for the job title of police officer. The letter states, in pertinent part: "If appointed from the special military list, you will be assigned a retroactive seniority date of July 11, 2005 for the purpose of computing seniority credit and training and experience credit from promotion and seniority in the event of suspension or demotion. This seniority is credited as actual City service in meeting the eligibility requirements for promotional examinations."

Verified Petition, Ex B.

According to the petition, petitioner was subsequently appointed to the NYPD as of July 8, 2008, trained at the Police Academy from July 2008 until December 2008, and was assigned to the 70th Precinct after graduation. Petitioner allegedly inquired with the Payroll Department of the at 70th Precinct as to why his salary had not been adjusted to reflect a retroactive NYPD appointment date of July 11, 2005.

Petitioner later received a copy of a memorandum dated May 21, 2009 from Rafael Pineiro, Chief of Personnel, to the Commanding Officer, Personnel Orders Section. It states, in pertinent part: "AS PER THE ATTACHED LETTER FROM THE DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, UNDER SECTION 243 OF THE NEW YORK STATE MILITARY LAW, THE APPOINTMENT DATE OF P.O. JASON K. CASTRO, TAXNo.946840, ASSIGNED TO THE 70 PRECINCT, IS RETROACTIVE TO JULY 11, 2005 FOR PURPOSES OF SENIORITY, PROMOTION, TRAINING, SALARY, VACATION ACCRUAL RATE AND VACATION PICK SENIORITY RETROACTIVE TO THAT DATE."

Verified Petition, Ex C (emphasis in original). [*2]

Petitioner claims that a representative of the 70th Precinct Payroll Department advised him that (1) his salary would be increased in future paychecks to that of an officer who had been appointed July 11, 2005 (as compared with an officer appointed July 8, 2008), and (2) petitioner would receive a check for back pay for the difference in what he had been paid up to that point and what he would have been paid based on an appointment date of July 11, 2005.

On August 23, 2009, petitioner claims that he was suspended without pay from the NYPD, after allegedly being involved in an off-duty incident. Petitioner allegedly resigned from the NYPD on October 15, 2009.

By letter dated November 2, 2009 to the NYPD's Employment Management Division, petitioner's counsel requested back pay for the difference in his salary had his appointment date been adjusted to July 11, 2005. Counsel also requested that petitioner be paid for 24 days of work, arguing that petitioner had been suspended for more than 30 days with pay (i.e., from August 23, 2009 until October 15, 2009), purportedly in violation of Administrative Code § 14-115. Verified Petition, Ex E. By a letter dated March 15, 2010, petitioner again requested the back pay to which he claimed he was entitled pursuant to Military Law § 243. Verified Petition, Ex F.

Petitioner claims that he has received no response from the NYPD to those letters. Petitioner commenced this Article 78 proceeding on May 13, 2010, seeking an order compelling respondents to pay him the difference between the salary that he had received and the salary that he would have received had his appointment date been adjusted retroactively to July 11, 2005, as per the memorandum of the NYPD's Chief of Personnel.

Respondents cross-move to dismiss the Article 78 petition.

DISCUSSION

Respondents argue that petitioner was required to bring this proceeding either within four months of the issuance of Chief Pineiro's memorandum dated May 21, 2009, within four months of his resignation, or at the latest, within four months of November 2009, when petitioner sent a letter requesting his back pay. Respondents' Mem. at 18. Alternatively, respondents argue that the proceeding is barred by laches, because petitioner allegedly waited six months after the memorandum was issued to demand the back pay. Id. at 19. According to respondents, a demand should be made no more than four months after the right to make the demand accrues, citing Densmore v Altmar-Paris-Williamstown Central School District (265 AD2d 838 [4th 1999]).

Finally, respondents argue that mandamus does not lie, in that petitioner does not have a clear legal right to the relief sought. Respondents argue that, because petitioner was not a public employee at the time that he left for military service, he was not entitled to have his military service counted towards his period of employment, for the purposes of computing salary and benefits, citing Mulligan v New York (194 Misc 579 [Sup Ct, NY County 1949], affd 275 AD795 [1st Dept], affd 300 NY 541 [1950]).

On a motion to dismiss on the ground that it is barred by the statute of limitations, respondents bear the initial burden of establishing, prima facie, that the time in which to sue has expired. Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 (2d Dept 2008); Matter of Estate of Baird, 58 AD3d 958, 959 (3d Dept 2009); see Brignoli v Balch, Hardy & Scheinman, 178 AD2d 290, 290 (1st Dept 1991)("The defendant bears the burden of proof on an affirmative defense"). In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff. Id. [*3]

To determine whether the statute of limitations has run, the Court must initially address whether the Article 78 petition seeks mandamus to compel, or seeks mandamus to review, because the accrual date for an Article 78 petition in the nature of mandamus to compel is different from the accrual date from a petition in the nature of mandamus to review. See Matter of De Milio v Borghard, 55 NY2d 216, 219-220 (1982). Here, the petition clearly seeks to compel respondents to pay petitioner an amount of retroactive salary to which petitioner claims he is entitled by virtue of Military Law § 243. According to petition, the payment of salary is mandated by Military Law § 243, and therefore not a decision which respondents have the discretion to deny. Petitioner views the payment of his salary as a ministerial act that implements a directive from Chief Pineiro. The Court therefore concludes that the petition is in the nature of seeking mandamus to compel.

The fact that respondents dispute whether Military Law § 243 provides petitioner with a clear right to such salary does not mean that the petition is actually seeking mandamus to review. The applicable statute of limitations is determined from the nature of the petition, not whether petitioner will actually prevail on the merits of the petition. Because a statute of limitations defense is not addressed to the underlying merits of a proceeding, the applicable statute of limitations should therefore not depend on whether the underlying petition has merit. However, if respondents demonstrate that petitioner has no clear legal right to mandamus to compel, then mandamus to compel does not lie, and the petition would be dismissed. It would be a waste of judicial resources to address further a question of whether the limitations period of the petition had run, when the court would have already decided that mandamus to compel does not lie.

"In an article 78 proceeding in the nature of mandamus to compel, the Statute of Limitations commences running when, after a demand, a body or officer " refuse[s] * * * to act or to perform a duty enjoined by law.'" Matter of Waterside Assoc. v New York State Dept. of Envtl. Conservation, 72 NY2d 1009, 1010 (1988)(internal citations omitted). "A petitioner seeking relief in the nature of mandamus to compel is not aggrieved until an appropriate demand is made and refused." Matter of Mitchell v Essex County Sheriff's Dept., 302 AD2d 732, 734 (3d Dept 2003). "The refusal must be clear and explicit, and any ambiguity created by a public body should be resolved against it." Matter of Fischer v Roche, 81 AD2d 541, 542 (1st Dept), affd 54 NY2d 962 (1981).

Here, respondents never explicitly refused to entertain the petitioner's demand. Respondents admit that they never responded either to petitioner's letter dated November 2, 2009, or to petitioner's letter dated March 15, 2010, which reiterated his prior demand. Respondents' Mem. at 16. The lack of a response does not constitute a clear and explicit refusal.Therefore, under the circumstances, the applicable four-month statute of limitations period never began to run. Matter of Town of Harrison Police Benev. Assn., Inc. v Town of Harrison Police Dept., 69 AD3d 639, 640-641 (2d Dept 2010); Matter of Wagner v Nicoletti, 249 AD2d 484 (2d Dept 1998).

The fact that the statute of limitations runs as of the date of the agency's clear and explicit refusal "does not mean that the aggrieved party can, by delay in making his demand, extend indefinitely the period during which he is required to take action. If he does not proceed promptly with his demand he may be charged with laches." Austin v Board of Higher Educ. of City of NY, 5 NY2d 430, 442 (1959). The Appellate Divisions of the Second, Third and Fourth Judicial Departments have held that, "[t]he reasonable time requirement for a prompt demand should be measured by the four-month Statute of Limitations of CPLR article 78, and thus a demand should [*4]be made no more than four months after the right to make the demand arises." Matter of Blue v Commissioner of Social Servs., 306 AD2d 527, 528 (2d Dept 2003); Matter of Thomas v Stone, 284 AD2d 627, 628 (3d Dept 2001); Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 838 (4th Dept 1999). "[W]hile invocation of the equitable defense of laches ordinarily requires a showing of prejudice, when the doctrine is invoked in an article 78 proceeding in the nature of mandamus, proof of unexcused delay without more may be enough." Matter of Sheerin v New York Fire Dept. Articles 1 and 1B Pension Funds, 46 NY2d 488, 495-496 (1979)(internal citation omitted).

Here, the petition alleges that, after Chief Pineiro's May 21, 2009 memorandum, "a representative of the 70th Precinct Payroll Department advised petitioner that two things would happen: (1) petitioner's salary would be increased in future paychecks to that of an officer who had been appointed July 11, 2005, as compared with his salary that was for an officer appointed July 8, 2008; and (2) petitioner would receive a back pay check that would reflect the difference in what he had been paid up to that point . . .As each NYPD paycheck arrived, petitioner saw neither an increase in his salary nor the retroactive pay. But the 70th Precinct Payroll Department told petitioner to be patient. . . .On or about August 23, 2009, petitioner was suspended without pay from the NYPD after allegedly being involved in an off-duty incident."

Verified Petition ¶¶ 24-26. For the purpose of determining whether laches bars the petition, it would appear that petitioner's right to demand payment of certain retroactive salary and an increase in pay arose when this representative allegedly informed petitioner that he would be receiving such payments. Viewing the allegations of the petition as true, the inference from the allegations quoted above is that petitioner demanded payment of his salary increase and retroactive pay prior to his suspension on August 23, 2009, and that the 70th Precinct Payroll Department told petitioner to be patient. Because it is not pleaded in the petition when 70th Precinct Payroll Department informed petitioner that would be receiving increased salary and back pay, it cannot be determined on this motion that petitioner's demand for the increased salary and back pay occurred more than four months thereafter, so as to establish that the petition is barred by laches.[FN1]

Turning to the merits of the petition, "Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right' to the relief requested." [*5]Matter of Council of City of New York v Bloomberg, 6 NY3d 380, 388 (2006). In addition, "there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief." Matter of Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educ. Servs., 77 NY2d 753, 757 (1991). Petitioner's contention that he is entitled to increase salary and back pay is based on Military Law § 243 (7), which states, in relevant part: "Any person whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. If the name of any such person is reached for certification during his military duty, it shall be placed on a special eligible list in the order of his original standing, provided he makes request therefor following termination of his military duty and during the period of his eligibility on such list. . . . Any such person thus appointed shall, for the purpose of computing seniority credit and training and experience credit for promotion and date of membership in the retirement system and seniority in the event of suspension or demotion, be deemed to have been appointed on the earliest date upon which any eligible, who was the lower on such original eligible list, was appointed, provided, however that service credit shall be computed from the actual date of appointment."

Here, it is undisputed that petitioner was appointed from a special eligible list for the NYPD because he was on military duty when his name was reached for certification from list number 1910. Military Law § 243 (7) deems the appointment date of a person appointed from a special eligible list to be "on the earliest date upon which any eligible, who was the lower on such original eligible list, was appointed," for the purpose of computing:

(1) seniority credit; (2) training and experience credit for promotion

(3) date of membership into the retirement system; and

(4) seniority in the event of suspension or demotion.

The issue is whether the computation of petitioner's salary would fall under "seniority credit." The statute itself does not define "seniority credit."

The text of Military Law § 243 (7) can be traced back to 1946, to the provisions of former Military Law § 246. In 1946, the Legislature amended Military Law § 246 (7) to read as it appears today as Military Law § 243 (7). L 1946 ch 589. The renumbering of the sections of the Military Law occurred in 1953, when the Legislature repealed section 26 of the Military Law and replaced it with Article 11 of the Military Law. L1953, ch 420. Military Law § 246 (7) was renumbered as Military Law § 243 (7), and the entire provision has remained largely unchanged since 1946.[FN2]

As respondents indicate, Mulligan v City of New York (194 Misc 579 [Sup Ct, NY County 1949], affd 275 AD795 [1st Dept], affd 300 NY 541 [1950]) is virtually identical to the instant case. In Mulligan, the court addressed the issue of "whether plaintiff, after termination of his military duty, was entitled to be appointed a patrolman fourth grade at a salary of $2,500, or a patrolman seventh [*6]grade at a $2,000." The plaintiff contended that, under the statutory formula of Military Law § 246 (7), then in effect in 1949, the words " seniority credit' . . . mean the length of service for all purposes', and include the right to be credited and compensated on the same basis as qualified eligibles who were lower on the list than [plaintiff] was at the time of their appointment."

The Supreme Court rejected the plaintiff's construction of the statute. The court reasoned, "Generally speaking, the term seniority credit , standing by itself, does not include, and has no reference to salary or rate of compensation. That the Legislature did not intend to include salary or compensation within the purview of the statutory formula is evidenced by the circumstance that, at the time of the enactment of subdivision 7 in 1946 (L. 1946, ch. 589), many other proposals were presented to the Legislature for the benefit of eligibles who had been or were about to be inducted into the military service. Some of these expressly relate to salary or rate of compensation. For instance, Assembly Introductory No. 1389, Print No. 1481, defines seniority to include salary increments accruing to the position . This and other somewhat substantially similar measures failed of passage. Indeed, the only proposals which passed the Legislature were Senate Introductory No. 511, Print No. 523 and Senate Introductory No. 1225, Print No. 1343. The Governor vetoed the first bill and approved the second. The second bill contains the formula embodied in subdivision 7. In approving the bill, the Governor recognized the intention of the Legislature to grant retroactive seniority credit for certain purposes only' for the purposes therein specified, and not for all purposes', as plaintiff contends.That the Legislature did not intend to give seniority credit' the comprehensive meaning for which plaintiff contends would seem to be conclusively shown by the analogous provision of subdivision 5 in the same section a statute in pari materia. That subdivision deals with the rights and privileges of a public employee who has been restored to his former position after the termination of his military duty. It provides that such employee shall thereafter be entitled to the rate of compensation he would have received had he remained in his position continuously during such period of military duty * * * and shall not be subjected * * * to any loss of time service, increment, or any other right or privilege, or be prejudiced in any way with reference to promotion, transfer, reinstatement or continuance in office. (Italics supplied.) Subdivision 5 then repeats, in identical language, the statutory formula in subdivision 7. This formula was added in 1946 at the time the same formula was inserted in subdivision 7 (see L. 1946, ch. 589).A comparison of the provisions of subdivision 5 with those of subdivision 7 shows an intention on the part of the Legislature to differentiate between public employees actually engaged in performing the duties of their employment at the time of their induction into the armed forces and veteran eligibles appointed to public office after the termination of their military duty. This is demonstrated by the repetition in subdivision 5 of the formula in subdivision 7. Why did the Legislature insert the salary provision in subdivision 5 if the formula in subdivision 7, repeated in [*7]subdivision 5, is sufficient to evidence the intention of the Legislature to grant salary increments to veteran public employees as well as to qualified eligibles? Why did the Legislature include the salary provision in subdivision 5 and omit it in subdivision 7? It could not have been haphazard or unintentional.Giving effect to the provisions of both subdivision 5 and subdivision 7, the conclusion seems irresistible that the purpose of the Legislature was to give greater protection or benefits to public employees than to eligibles and to grant veteran public employees rights and privileges in addition to mere seniority credit' by treating them the same as their nonveteran fellow employees, as respects grade and rate of compensation, after restoration to their former civilian employment. On the other hand, in the case of qualified eligibles, it would seem to have been the purpose of the Legislature to grant them mere seniority credit in situations involving promotions, suspensions or demotions. That it was within the province of the Legislature to make the distinction cannot be denied. Its wisdom or fairness is not for the courts. To hold that eligibles coming under subdivision 7 should receive the same benefits as public employees coming within subdivision 5 would necessitate the reading into the former subdivision the salary provisions contained in the latter. This the court cannot do; for it is not privileged, by judicial construction, to legislate' (citation omitted)."

Mulligan cannot be distinguished on any factual or legal grounds. Plaintiff does not point to any flaw or error in the reasoning in Mulligan. Therefore, the doctrine of stare decisis requires this court to follow Mulligan. "Precedents involving statutory interpretation are entitled to great stability. . . . Moreover, if the precedent or precedents have misinterpreted' the legislative intention, the Legislature's competency to correct the misinterpretation' is readily at hand." People v Hobson, 39 NY2d 479, 489 (1976). Although Mulligan interpreted Military Law § 246, the text that Mulligan interpreted is identical to Military Law § 243 (7). The renumbering of the statute at issue in 1953 cannot be considered having any legal significance upon the interpretation of the relevant text. "In the case of a revision or consolidation of statutes, if there is no change in the phraseology of the statute, its former judicial construction becomes a part of the subsequent statute." McKinney's Consolidated Laws of NY, Book 1, Statutes § 75.

The fact that Mulligan was decided more than 60 years ago weighs against departing from Mulligan. "Generally, once the courts have interpreted a statute any change in the rule will be left to the Legislature, particularly where the courts' interpretation is a long-standing one." Matter of Eckart's Estate, 39 NY2d 493, 499-500 (1976).

In light of Mulligan, Military Law § 243 (7) does not grant petitioner a right to an appointment date that takes into account his military service prior to becoming a public employee, for the purpose of computing petitioner's salary as a public employee.

Petitioner's argument that respondents' cross motion must be denied because respondents have not answered the petition is not persuasive. The issue of whether petitioner established a clear right in seeking mandamus to compel is a matter of statutory construction, a matter of pure law. Assuming the allegations of the petition are true, as the Court must do on this cross motion to dismiss, Military Law § 243 (7) cannot be interpreted to grant petitioner the right which he seeks, [*8]in light of Mulligan.

As petitioner indicates, Chief Pineiro's memorandum apparently took a position contrary to the interpretation that respondents advance here. Pinerio impliedly interpreted that Military Law § 243 (7) required an adjustment of petitioner's appointment date for the purpose of computing salary. However, because the legal issue is a matter of statutory construction, neither Pineiro's memorandum nor respondents' contrary interpretation is entitled to any deference. "Deference is generally accorded to an administrative agency's interpretation of statutes it enforces when the interpretation involves some type of specialized knowledge. By contrast, where the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency ... In such circumstances, the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent"

Matter of Belmonte v Snashall, 2 NY3d 560, 565-566 (2004).

To the extent that petitioner meant to argue that respondents were bound by Chief Pineiro's memorandum, this argument would be not be successful. Petitioner does not go so far as to argue that Chief Pineiro's memorandum estopped respondents from asserting a contrary interpretation of Military Law § 243 (7). In any event, "[e]quitable estoppel does not operate to create rights otherwise nonexistent; it operates merely to preclude the denial of a right claimed otherwise to have arisen." Wilson v One Ten Duane Street Realty Co., 123 AD2d 198, 200 (1st Dept 1987)(citation omitted). Thus, whether Chief Pineiro was "wrong" when he issued his May 21, 2009 memorandum is not an issue relevant to deciding this petition. Respondents do not need prove that Chief Pineiro was wrong when he issued the memorandum for them to assert a position that is contrary to the memorandum.

CONCLUSION

Accordingly, it is hereby

ORDERED that respondents' cross motion to dismiss the Article 78 petition is granted; and it is further

ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: December 15, 2010

New York, New YorkENTER:

/s/

J.S.C. Footnotes

Footnote 1: Viewing the allegations in petitioner's favor, as the Court must do on respondents' cross motion to dismiss, the November 2, 2009 letter would not be viewed as the first demand that petitioner made for his increased salary and back pay. Even if the November 2, 2009 were considered to be the first time that petitioner had demanded the increased salary and back pay, it cannot be determined whether this demand was made within four months of the time when the 70th Precinct Payroll Department allegedly informed petitioner that he would received the increased salary and back pay.

Footnote 2: In1999, the Legislature amended Military Law § 243 (7) to add provisions that would ensure that "any person who was hired from a special eligible list (Military List) be given his seniority date as his date of membership in the retirement system." Mem of Assembly, 1999 McKinney's Session Laws NY, at 1991; see L 1999 ch 616.