De Milio v. Borghard, 55 N.Y.2d 216 (1982)
For a probationary government employee discharged without a right to a hearing, the four-month statute of limitations to challenge the discharge begins to run from the date of termination, not from the denial of a request for reconsideration.
Summary
De Milio, a probationary employee, was terminated by the Westchester County Department of Environmental Facilities. He requested reconsideration, alleging factual misinterpretations, but his request was denied. He then commenced an Article 78 proceeding, which was dismissed as untimely, measured from his termination date. The Court of Appeals affirmed, holding that because De Milio was a probationary employee without a right to a hearing, the statute of limitations began on the termination date, and a request for reconsideration does not extend this period. This ruling clarifies the commencement of the limitations period for challenging employee discharges under Article 78, distinguishing between employees with and without hearing rights.
Facts
The Westchester County Department of Environmental Facilities employed De Milio in a probationary role.
On October 12, 1979, the commissioner informed De Milio that his employment would end on October 25, 1979.
De Milio initiated a grievance procedure under his union’s collective bargaining agreement, which proved unsuccessful.
On October 29, 1979, De Milio requested the commissioner to reconsider the termination, citing misconstrued facts.
De Milio received a negative response to his reconsideration request around November 15, 1979.
Procedural History
On March 5, 1980, De Milio commenced an Article 78 proceeding to challenge his termination.
Special Term dismissed the petition, citing the four-month statute of limitations under CPLR 217, measured from the October 25, 1979, termination date.
The Appellate Division affirmed this dismissal, stating that a reconsideration request does not extend the limitations period.
Two dissenting justices argued the period should run from November 15, 1979, the date reinstatement was denied.
The Court of Appeals then reviewed the case.
Issue(s)
Whether the four-month statute of limitations in an Article 78 proceeding challenging a probationary government employee’s discharge begins on the termination date or the denial date of a request for reconsideration.
Holding
No, because as a probationary employee without the right to a hearing, the statute of limitations begins to run on the date of termination. A request for reconsideration does not extend this limitations period.
Court’s Reasoning
The court differentiated between types of Article 78 proceedings: certiorari (review of a hearing), mandamus to compel (employee entitled to a hearing but denied), and mandamus to review (employee not entitled to a hearing).
Since De Milio was a probationary employee, he was not entitled to a hearing, making his proceeding one for mandamus to review.
For mandamus to review, “the period runs from the notice of discharge, or the effective date of discharge, if later.”
The court distinguished this case from situations where an employee is entitled to a hearing but is denied one; in those cases, the limitations period runs from the denial of reinstatement.
The court rejected De Milio’s argument that his petition sought review of the denial of reinstatement, finding that the petition focused solely on the original discharge.
The court emphasized that allowing a reconsideration request to extend the statute of limitations would “emasculate” the rule that the limitations period begins when the determination becomes final and binding.
The court stated, “The rule that the four-month limitations period begins to run on the date that the determination to be reviewed becomes final and binding would be completely emasculated if the petitioner could extend the commencement of this period by merely requesting that reconsideration be given to a prior decision because it is asserted that the earlier decision was based upon facts which were misconstrued.”