REPORT NO. 9                                                                                   March 26, 1999

S. 3409                                                                                  By:         Senator Volker l
                                                                        Senate Committee:        Codes
                                                                             Effective Date:        1st day of January next
                                                                                                            succeeding the date on
                                                                                                            which it shall become a law

AN ACT to amend the civil practice law and rules, in relation to a written notice of the commencement of the period of limitations in a proceeding against a body or officer.

LAW AND SECTIONS REFERRED TO: CPLR 217(1)

THIS BILL IS APPROVED

        This bill would amend CPLR 217(1) by adding two new paragraphs. New paragraph (B) provides that whenever a body or officer issues a written determination or refusal to act the four month statute of limitations (or shorter period if authorized by law) to bring a proceeding against a body or officer contesting the decision does not commence to run until the notice is mailed or delivered to the petitioner and only if the notice states that the aggrieved person is entitled to seek review of such determination or refusal and setting forth the amount of time provided by law to commence a proceeding. If the notice is not given, presumably the statute never starts to run.

        New paragraph (C) provides that with leave of the court, where, at the time a determination becomes final and binding, the aggrieved person is an infant or insane, the action may be brought within two years after "the times or events specified in paragraph (A) or (B)".

        The law would apply only to determinations made on or after its effective date.

        The law currently states that the time to bring an action against a body or officer starts to run "after the determination to be reviewed becomes final and binding upon the petitioner"

        The sponsors of the bill believe that there is much ambiguity regarding when a determination becomes final and binding and much litigation takes place to determine the point of finality. While that may be true, this legislation does not completely solve this problem. There are many factual issues regarding CPLR 217 which cannot be legislated and will still lead to numerous litigation. Even if the body or officer believes it has made a final and binding determination, the petitioner and the court may disagree. See, New York State Association of Counties v. Axelrod, 78 N.Y.2d 158, 573 N.Y.S.2d 25 (1991). Or, for another example, the wrong party might be notified .Village of Westbury v. Department of Transportation, 75 N.Y.2d 62, 72, 550 N.Y.S.2d 604, 609 (1989).

        However, since lawyers sometimes find it difficult to determine whether an officer or body believes it has made a final and binding decision, much less laymen, this bill serves a laudatory purpose and should be approved.

        When this proposal was originally made in the 1995-1996 legislative session, we pointed out that the proposed law would have inadvertently eliminated the disability exception to the four month period that was in the current law. This bill has now corrected this problem by adding subdivision (C).

For the foregoing reasons, this bill is APPROVED.

Person Who Prepared The Report: Kim Steven Juhase, Esq.

Chair of the Committee: Paul H. Aloe, Esq.