Bianca v. Frank — 43 N.Y.2d 168

Majority

p. 168

In the Matter of Anthony N. Bianca, Respondent, v Louis J. Frank, as Commissioner of Police of Nassau County, et al., Appellants.

Argued October 13, 1977;

decided November 22, 1977

p. 169

POINTS OF COUNSEL

William Gitelman, County Attorney (William S. Norden and Natale C. Tedone of counsel), for appellants.

Petitioner’s attorney who represented petitioner at the disciplinary proceeding is not required to be served with a copy of the determination of the Police Commissioner of Nassau County, dated February 27, 1975, which dismissed petitioner from the Police Department of Nassau County, in order for the 30-day Statute of Limitations, made and provided for, to commence. (People v Wooley, 40 NY2d 699 ; Matter of Mastrosimone v Frank, 51 AD2d 727 ; Matter of Griffiths v Frank, 51 AD2d 725 ; Smith v Ayer, 101 US 320 ; Link v Wabash R.R. Co., 370 US 626 ; Matter of Hammer v Suffolk County Dept, of Labor, 51 AD2d 549 ; Matter of Cornwall v Baxter, 46 Misc 2d 769 , 23 AD2d

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815 ; Matter of Abramson v Commissioner of Educ. of State of N. Y, 1 AD2d 366 ; Matter of Queensborough Community Coll, of City of Univ. of N. Y. v State Human Rights Appeal Bd., 49 AD2d 766 , 41 NY2d 926 .)

Martin S. Rothman and Eric Gewurz for respondent.

I. Time within which to commence the article 78 proceeding never began to run because petitioner’s counsel who represented him at the disciplinary hearing-trial was never served with the determination sought to be reviewed. Thus, the article 78 proceeding (which was commenced more than 30 days but within four months of the service of said determination upon petitioner) was timely brought. (Matter of Hammer v Suffolk County Dept, of Labor, 51 AD2d 549 ; People v Wooley, 40 NY2d 699 ; Berry v Donner-Hanna Colee Corp., 42 AD2d 404 , 34 NY2d 893 ; State Div. of Human Rights v Shenango, 55 AD2d 852 ; Good v Daland, 119 NY 153 ; Matter of Bianca v Frank, 55 AD2d 642 ; Matter of Mastrosimone v Frank, 51 AD2d 727 ; Matter of Griffiths v Frank, 51 AD2d 725 ; Matter of Cornwall v Baxter, 46 Misc 2d 769 , 23 AD2d 815 ; Matter of Abramson v Commissioner of Educ. of State of N. Y, 1 AD2d 366 ; Matter of Loon Lake Estates v Adirondack Park Agency, 83 Misc 2d 686 , 85 Misc 2d 929 .) II. Section 8-13.0 (subd d) of the Nassau County Administrative Code must be read and construed as it was promulgated. The word "granted” is unambiguous and its meaning is clear. Said statute must be construed as written, and as such it is unconstitutional. It violates the due process clauses of both the United States Constitution and the New York State Constitution. (People ex rel. Burby v Howland, 155 NY 270 ; People ex rel. Broderick v Morton, 156 NY 136 ; Matter of Malpica-Orsini, 36 NY2d 568 ; Matter of Young v Gerosa, 11 AD2d 67 ; Cline v Frink Daily Co., 274 US 445 , Matter of Hardecker v Board of Educ., 180 Misc 1008 , 266 App Div 980 , 292 NY 584 ; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357 ; Vulcan Rail & Constr. Co. v County of Westchester, 250 App Div 212 ; Meltzer v Koenigsberg, 302 NY 523 ; People v Briggs, 193 NY 457 .) III. The section is unconstitutional because it is vague, indefinite and ambiguous. So rife with ambiguity and uncertainty is section 8-13.0 (subd d) that nowhere does it refer to an article 78 proceeding, nor to any judicial proceeding. The word "petition” is neither defined nor described. The section should not be used as a statutory sword to dismiss the proceeding herein. (Matter of Proverb v Niesley, 32 AD2d 657 , 26 NY2d 875 ;

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People v Firth, 3 NY2d 472 ; People v Briggs, 193 NY 457 ; Grayned v City of Rockford, 408 US 104 ; Connally v General Constr. Co., 269 US 385 ; Trio Distr. Corp. v City of Albany, 2 NY2d 690 ; Matter of Murray v City of New York, 30 NY2d 113 ; Bender v New York City Health & Hosps. Corp., 38 NY2d 662 ; Board of Educ. v Levitt, 42 AD2d 372 .) IV. Even the Nassau County Attorney was confused by the section. So obscure, vague and confusing is the section at bar, that in Cullinan v Frank ( 46 AD2d 738 ) the Nassau County Attorney represented to the court below that a police officer has four months within which to commence an article 78 proceeding to review an order of dismissal from the Nassau police force. (Matter of Cullinan v Frank, 46 AD2d 738 .) V. Section 26-4.0 of the Nassau County Administrative Code provides, that, "no existing right or remedy of any character shall be lost or impaired or affected by reason of any provision of this act”. Thus, section 8-13.0 (subd d) of the code should not be deemed to limit, impair nor affect the right of petitioner to commence an article 78 proceeding within four months of proper service of the determination to be reviewed. (People ex rel. Mason v McClave, 99 NY 83 ; People v Dethloif, 259 App Div 480 , 283 NY 309 ; People ex rel. Pierce v Howe, 218 App Div 273 ; Matter of Castaways Motel v Schuyler, 24 NY2d 120 , 25 NY2d 891 , 25 NY2d 692 ; Board of Educ. v Levitt, 42 AD2d 372 .) VI. The section in question unconstitutionally infringes upon the inherent power of the courts to control their calendars, and to adjudicate litigation within a reasonable time in a reasonable manner. (Kagen v Kagen, 21 NY2d 532 ; Plachte v Bancroft, 3 AD2d 437 ; Riglander v Star Co., 98 App Div 101 , 181 NY 531 .) VII. The section herein violates the equal protection clauses of the Fourteenth Amendment of the United States Constitution, and section 11 of article 1 of the New York State Constitution. (Matter of Wimmer v Kirwan, 51 AD2d 635 ; Shapiro v Thompson, 394 US 618 ; Dunn v Blumstein, 405 US 330 ; Kramer v Union School Dist., 395 US 621 ; Southern Ry. Co. v Greene, 216 US 400 ; Royster Guano Co. v Virginia, 253 US 412 ; Louisville Gas Co. v Coleman, 277 US 32 ; Matter of Madole v Barnes, 20 NY2d 169 ; Allied Stores of Ohio v Bowers, 358 US 522 ; Aerated Prods. Co. of Buffalo v Godfrey, 290 NY 92 .) VIII. There was no final administrative determination which was ripe for judicial review, because the Nassau County Police Department failed to follow the procedure set forth in section 8-13.0 (subd c, par 2) of the Nassau County Administrative

p. 172

Code which dictates, inter alia, that a member of the police force may be dismissed only after, "such member shall have had an opportunity to be publicly heard and examined before the commissioner.” Having failed to strictly comply with the said provision, the determination never became final. Moreover, contra to section 8-13.0 (subd b), a deputy inspector rather than a captain sat as the hearing officer. (Matter of Benedict v LaGuardia, 252 App Div 540 , 277 NY 674 ; Weeks v Coe, 36 App Div 339 ; Anthony v Schofield, 265 App Div 423 .) IX. Having failed to inform petitioner of his right to bring an article 78 proceeding, and having failed to inform him of the short Statute of Limitations, appellants should be estopped from interposing the defense of the Statute of Limitations. (Robinson v City of New York, 24 AD2d 260 ; Quintero v Long Is. R. R, 55 Misc 2d 813 , 31 AD2d 844 .) X. Under the facts at bar, and in view of all of the equities, the court should apply CPLR 2004 and should rule that the proceeding was timely commenced.

OPINION OF THE COURT

Petitioner, a Nassau County patrolman, was charged with multiple violations of the rules and regulations of the Nassau County Police Department. On February 7, 1975, accompanied by counsel, he attended a disciplinary hearing and, based on the determination and recommendation after the hearing, petitioner was served with a notice advising him of his dismissal from the force. It is conceded that petitioner’s counsel was never served with the notice of disposition.

On June 3, 1975, approximately 90 days after petitioner was served with the notice of his dismissal, he commenced an article 78 proceeding to annul the determination and seek reinstatement. Special Term dismissed the proceeding on the ground that it was time-barred pursuant to subdivision d of section 8-13.0 of the Nassau County Administrative Code (L 1939, ch 272, as amd by L 1948, ch 436) in that it was not commenced within 30 days from the service upon the petitioner of the determination sought to be reviewed. The Appellate Division modified the order of Supreme Court and, in effect, reinstated the petition holding that the 30-day Statute of Limitations had not commenced since the attorney for the petitioner at the disciplinary hearing was not served with the determination of the Police Commissioner.

p. 173

The sole issue before us is whether petitioner’s attorney, who represented petitioner at the disciplinary proceeding, is required to be served with a copy of the determination of the Police Commissioner in order for the 30-day Statute of Limitations provided for in subdivision d of section 8-13.0 of the Nassau County Administrative Code to commence. The section provides: "A petition to review a determination by the commissioner to fine, suspend, dismiss or otherwise discipline a member of the police force shall not be granted after the expiration of thirty days from the service of a notice of such determination upon the member of the force so fined, suspended, dismissed or otherwise disciplined.”

The appellants argue that since this section explicitly states that the 30 days is to commence "from the service of a notice of such determination upon the member”, no requirement to serve the member’s attorney may be implied or imposed as a prerequisite for the running of the time limitation.

This argument contravenes basic procedural dictates and the fundamental policy considerations which require that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed (Matter of Hammer v Suffolk County Dept of Labor, 51 AD2d 549 ).

Indeed, once a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf. This is not simply a matter of courtesy and fairness; it is the traditional and accepted practice which has been all but universally codified (see, e.g., CPLR 2103, subd [b]; 7506, subd [d]; Executive Law, § 168; Administrative Procedure Act, § 307).

Of course a legislative enactment could specifically exclude the necessity of serving counsel, but any intention to depart from the standard practice must be clearly established and stated in unmistakable terms. Short of that any general requirement that notice must be served upon the party, or as in this case "upon the member of the force” must be read in the accepted sense to require, at least, that notice be served upon the attorney the party has chosen to represent him.

p. 174

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

Order affirmed, without costs, because of excessive length of respondent’s brief.

Cases cited

People v. Wooley 40 NY2d 699 N.Y. 1976-11-30 p. 169, p. 170
Smith v. Ayer 101 US 320 SCOTUS p. 169
Link v. Wabash Railroad 370 US 626 SCOTUS 1962-06-25 p. 169
Cornwall v. Baxter 46 Misc 2d 769 N.Y. Sup. Ct. 1964-07-02 p. 169, p. 170
Berry v. Donner-Hanna Coke Corp. 42 AD2d 404 N.Y. App. Div. 1973-10-26 p. 170
Berry v. Donner-Hanna Coke Corp. 34 NY2d 893 N.Y. 1974-06-27 p. 170
State Division of Human Rights v. Shenango, Inc. 55 AD2d 852 N.Y. App. Div. 1976-12-17 p. 170
Good v. Daland 119 NY 153 N.Y. 1890-01-21 p. 170
Bianca v. Frank 55 AD2d 642 N.Y. App. Div. 1976-12-20 p. 170
Loon Lake Estates, Inc. v. Adirondack Park Agency 83 Misc 2d 686 N.Y. Sup. Ct. 1975-09-13 p. 170
Loon Lake Estates, Inc. v. Adirondack Park Agency 85 Misc 2d 929 N.Y. Sup. Ct. 1975-10-28 p. 170
People ex rel. Burby v. Howland 155 NY 270 N.Y. 1898-03-08 p. 170
People ex rel. Broderick v. Morton 156 NY 136 N.Y. 1898-06-07 p. 170
In re the Adoption of Malpica-Orsini 36 NY2d 568 N.Y. 1975-05-08 p. 170
Young v. Gerosa 11 AD2d 67 N.Y. App. Div. 1960-06-21 p. 170
Cline v. Frink Dairy Co. 274 US 445 SCOTUS 1927-05-31 p. 170
Hardecker v. Board of Education 180 Misc 1008 N.Y. Sup. Ct. 1943-04-28 p. 170
Hardecker v. Board of Education 292 NY 584 N.Y. 1944-03-10 p. 170
Metropolitan Life Insurance v. Boland 281 NY 357 N.Y. 1939-11-14 p. 170
Meltzer v. Koenigsberg 302 NY 523 N.Y. 1951-06-01 p. 170
People v. Briggs 193 NY 457 N.Y. 1908-12-01 p. 170, p. 171
Proverb v. Niesley 32 AD2d 657 N.Y. App. Div. 1969-05-19 p. 170
Proverb v. Niesley 26 NY2d 875 N.Y. 1970-03-05 p. 170
People v. Firth 3 NY2d 472 N.Y. 1957-12-05 p. 171
Grayned v. City of Rockford 408 US 104 SCOTUS 1972-06-26 p. 171
Connally v. General Construction Co. 269 US 385 SCOTUS 1926-01-04 p. 171
Trio Distributor Corp. v. City of Albany 2 NY2d 690 N.Y. 1957-05-16 p. 171
Murray v. City of New York 30 NY2d 113 N.Y. 1972-03-15 p. 171
Bender v. New York City Health & Hospitals Corp. 38 NY2d 662 N.Y. 1976-02-19 p. 171
Board of Education v. Levitt 42 AD2d 372 N.Y. App. Div. 1973-10-25 p. 171
People ex rel. Mason v. McClave 99 NY 83 N.Y. 1885-04-14 p. 171
People v. Dethloff 283 NY 309 N.Y. 1940-07-24 p. 171
Castaways Motel v. Schuyler 24 NY2d 120 N.Y. 1969-02-27 p. 171
Castaways Motel v. Schuyler 25 NY2d 891 N.Y. 1969-07-02 p. 171
Castaways Motel v. Schuyler 25 NY2d 692 N.Y. 1969-12-03 p. 171
Kagen v. Kagen 21 NY2d 532 N.Y. 1968-02-29 p. 171
Plachte v. Bancroft Inc. 3 AD2d 437 N.Y. App. Div. 1957-04-30 p. 171
Riglander v. Star Co. 98 App Div 101 N.Y. App. Div. 1904-11-25 p. 171
Riglander v. Morning Journal Ass'n 181 NY 531 N.Y. 1905-04-11 p. 171
Shapiro v. Thompson 394 US 618 SCOTUS 1969-04-21 p. 171
Dunn v. Blumstein 405 US 330 SCOTUS 1972-03-21 p. 171
Kramer v. Union Free School District No. 15 395 US 621 SCOTUS 1969-06-16 p. 171
Southern Railway Co. v. Greene 216 US 400 SCOTUS 1910-02-21 p. 171
F. S. Royster Guano Co. v. Virginia 253 US 412 SCOTUS 1920-06-07 p. 171
Louisville Gas & Electric Co. v. Coleman 277 US 32 SCOTUS 1928-04-30 p. 171
Madole v. Barnes 20 NY2d 169 N.Y. 1967-06-15 p. 171
Allied Stores of Ohio, Inc. v. Bowers 358 US 522 SCOTUS 1959-02-24 p. 171
Aerated Products Co. of Buffalo, Inc. v. Godfrey 290 NY 92 N.Y. 1943-03-04 p. 171
Benedict v. LaGuardia 277 NY 674 N.Y. 1938-03-18 p. 172
Robinson v. City of New York 24 AD2d 260 N.Y. App. Div. 1965-12-21 p. 172
Quintero v. Long Island Rail Road 55 Misc 2d 813 N.Y. Sup. Ct. 1968-01-02 p. 172

Majority

Cases cited

Statutes and regulations cited