Opinion
April 15, 1971
Order of Supreme Court, New York County, entered on September 9, 1970, which denied the motion of the Superintendent of Insurance to dismiss the petition on the ground of the Statute of Limitations and estoppel, unanimously reversed, on the law, the motion to dismiss the petition granted, and the petition dismissed. Appellant shall recover of petitioner-respondent $50 costs and disbursements of this appeal. By letter dated November 26, 1969, the office of the New York State Superintendent of Insurance adopted an assigned risk automobile insurance plan submitted by the Governing Committee of a group of insurance companies, of which petitioners were members, but non-consenting to this plan. This was "subject to approval of forms to be used in connection with said proposals and to be submitted prior to the proposed effective date of the Plan." The effective date of the Plan was December 22, 1969. This article 78 proceeding was commenced April 20, 1970 to set aside the determination, and the only question before us is the effective date of the four months' Statute of Limitations. (CPLR 217; Matter of Menechino v. Division of Parole, 26 N.Y.2d 837.) The applicable CPLR provision (217) requires that the proceeding "be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner". The petitioners were involved and knew that the decision of the Superintendent of Insurance affected them. The approval of forms was merely incidental. The thought that the Statute of Limitations should not begin to run until any necessary events occur subsequent to the determination by the agency is simply "that a party should not be put to the expense of challenging action which may not affect him, on pain of having his proceeding barred as untimely if it turns out that as a result of subsequent events he is affected." (8 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 7804.02.) Inasmuch as the binding date was November 26, 1969, the petition must be dismissed by virtue of the Statute of Limitations.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and Kupferman, JJ.