Mawn v. County of Suffolk

A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner (see CPLR 217; cf. New York State Assn. of Counties v Axelrod, 78 NY2d 158 , 165 [1991]). Where, as here, an employee is not entitled to a hearing in connection with the termination of his employment, the determination to terminate his employment becomes final and binding on the date the termination becomes effective (see Matter of Armstrong v Centerville Fire Co., 83 NY2d 937 , 939 [1994]; Matter of Levine v Board of Educ. of City of N.Y., 272 AD2d 328 [2000]). Contrary to the petitioner’s contention, since he entered into a disciplinary stipulation waiving his right to pursue the protections available under his collective bargaining agreement (see Matter of Nedd v Koehler, 159 AD2d 344 , 345 [1990]; Matter of Brothers v Pilgrim Psychiatric Ctr. of N.Y. State Off. of Mental Health, 131 AD2d 756 , 757 [1987]), his subsequent invocation of an administrative remedy did not toll the statute of limitations (cf. Matter of Patry [Village of Tupper Lake], 262 AD2d 757 , 759 [1999]; Matter of Levine v Board of Educ. of City of N.Y., 173 AD2d 619 , 621 [1991]).

Accordingly, the Supreme Court correctly determined that this proceeding was barred by the statute of limitations. Schmidt, J.P., Krausman, Crane and Fisher, JJ., concur.