In Biondo v. New York State Board of Parole, 458 N.E.2d 371 (N.Y. 1983), which theCarter court cited, but did not discuss or explicitly overrule, the Court of Appeals rejected a lower court holding that "the running of the statutory period beg[ins] to run immediately upon the issuance of the determination" being challenged.Summary of this case from Scales v. New York State Division of Parole
Decided November 1, 1983
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DE FOREST C. PITT, J.
Murray Bogatin for appellant.
Robert Abrams, Attorney-General ( Nancy A. Spiegel and Peter H. Schiff of counsel), for respondent.
The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Supreme Court, Albany County, for a hearing to determine when petitioner was informed of the appeal board's determination.
The four-month Statute of Limitations did not begin to run until the petitioner received notice of the appeal board's determination (see, e.g., 8 Weinstein-Korn-Miller, N Y Civ Prac, par 7804.02; Matter of Abramson v Commissioner of Educ., 1 A.D.2d 366, 371; cf. Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 41 N.Y.2d 926). The contrary conclusion reached by the courts below, that the running of the statutory period began to run immediately upon the issuance of the determination, overlooks the additional requirement that the petitioner be "aggrieved" by the determination ( Matter of Martin v Ronan, 44 N.Y.2d 374, 381). We have previously held that for the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final ( Mundy v Nassau County Civ. Serv. Comm., 44 N.Y.2d 352). A similar principle should apply when the petitioner has received no notice, ambiguous or otherwise, of the determination by which he is said to be aggrieved. Indeed, fundamental fairness would seem to compel the conclusion that a petitioner should not be held to have been dilatory in challenging a determination of which he was not aware (cf. Matter of Bianca v Frank, 43 N.Y.2d 168).
We also note that although the petitioner's sentence has expired it cannot be said, as we recently held in Matter of Tremarco v New York State Bd. of Parole ( 58 N.Y.2d 968), that the proceeding has been rendered moot. In that case the sentence expired after the article 78 proceeding had been commenced thus rendering academic the only question presented in the petition, namely, whether petitioner was entitled to remain on parole without a further hearing. Here on the other hand, the sentence expired while the petitioner's case was pending before the appeal board, and the propriety of its decision to dismiss for mootness is the primary issue raised in the petition. Nothing has occurred since the commencement of that proceeding to render that issue moot. Moreover, in contrast to Tremarco, here petitioner was found to have been a parole violator which may have lasting consequences despite the expiration of his sentence.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed, with costs, and matter remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.