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Fager v. Board of Education

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


May 7, 2010

IN THE MATTER OF KEVIN FAGER, THOMAS GILLETT, AND OTHER PETITIONERS UNITED IN INTEREST, PETITIONERS-APPELLANTS,
v.
BOARD OF EDUCATION, ROCHESTER CITY SCHOOL DISTRICT, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (David Michael Barry, J.), entered January 26, 2009 in a proceeding pursuant to CPLR article 78. The judgment granted respondent's motion to dismiss the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, FAHEY, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and respondent is granted 20 days after service of the order of this Court with notice of entry to serve and file an answer.

Memorandum

Supreme Court erred in granting respondent's motion to dismiss the petition in this CPLR article 78 proceeding as time-barred, and we therefore reverse. "A CPLR article 78 proceeding must be commenced within four months after the determination sought to be reviewed becomes final and binding . . .[, i.e.,] when it definitively impacts and aggrieves the party seeking judicial review" (Matter of Scott v City of Albany, 1 AD3d 738, 739; see CPLR 217 [1]; Matter of Novillo v Board of Educ. of Madison Cent. School Dist., 17 AD3d 907, 909, lv denied 5 NY3d 714). Here, petitioners commenced the proceeding less than four months after respondent's determination became final and binding.

20100507

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