Mellor v. Shepard

Judgment, Supreme Court, New York County (Walter Schackman, J.), entered July 29, 1991, which, in a proceeding pursuant to CPLR article 78 seeking, inter alia, to compel respondent to accept petitioner’s withdrawal of resignation from respondent’s employment, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs.

Since respondent’s refusal to accept petitioner’s withdrawal of resignation was a discretionary act as to which petitioner was not entitled to a hearing, the proceeding is in the nature of mandamus to review (see, Matter of De Milio v Borghard, 55 NY2d 216 ), governed by a four-month period of limitations that began to run after respondent rejected petitioner’s letter seeking to withdraw his earlier letter of resignation. Petitioner fails to demonstrate any misrepresentation by respondent that kept him from commencing this proceeding until a year after respondent’s rejection letter, which would estop respondent from asserting the Statute of Limitations as a defense (cf., Robinson v City of New York, 24 AD2d 260 ). Concur — Ellerin, J. P., Kupferman, Ross and Kassal, JJ.