In the Matter of ROBERT TURNER, Individually and on Behalf of All Others Similarly Situated, Appellant,
NEW YORK DIVISION OF STATE POLICE, Respondent.
Calendar Date: January 13, 2017
Offices Annette G. Hasapidis, South Salem (Annette G.
Hasapidis of counsel), for appellant.
T. Schneiderman, Attorney General, Albany (Frederick A.
Brodie of counsel), for respondent.
Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Hard, J.), entered July
15, 2015 in Albany County, which dismissed petitioner's
application, in a proceeding pursuant to CPLR article 78, to
review a determination of respondent denying petitioner's
request for overtime compensation.
was employed as an investigator in respondent's
Protective Services Unit (hereinafter PSU) from 2008 to 2012.
As a result of a 2001 pilot program and a subsequent
modification thereto in 2008, PSU investigators began
accruing overtime after
credited with 168 hours of work within a four-week period.
Non-PSU investigators, however, began accruing overtime after
being credited with 160 hours of work within a four-week
period. After an investigator expressed concerns to the
detail commander about this discrepancy in how PSU
investigators and non-PSU investigators accrued overtime, in
July 2014, respondent changed its overtime policy such that
PSU investigators, as of August 2014, would begin accruing
overtime after being credited with 160 hours of work within a
four-week period. This policy change applied prospectively
only, and PSU investigators were made aware of this new
policy change on August 25, 2014.
commenced this CPLR article 78 proceeding on November 7,
2014, seeking to have respondent's new overtime policy
applied retroactively and directing respondent to award
petitioner unpaid overtime wages for the period between 2008
and 2012. Supreme Court dismissed the petition and this
appeal by petitioner ensued.
extent that petitioner seeks to compel respondent to award
him unpaid overtime during the period between 2008 and 2012,
such claim is untimely. The petition alleged that respondent
violated Civil Service Law § 134 (1) by failing to pay
petitioner overtime rates for each hour worked over 160 hours
in a consecutive four-week work period. Assuming, without
deciding, that petitioner is governed by Civil Service Law
§ 134 (1), petitioner was aware of the amount of hours
that he worked in excess of 160 hours during a consecutive
four-week work period between 2008 and 2012. If, as
petitioner claims, respondent failed to pay him overtime due
for that time period, it was incumbent upon petitioner to
commence a CPLR article 78 proceeding within four months
after the receipt of his last paycheck inasmuch as his claim
for overtime back pay continuously accrued upon his receipt
of each paycheck between 2008 and 2012 (see CPLR 217
; Matter of O'Neill v Pfau, 23 N.Y.3d 993,
995 ). Given that petitioner did not commence this
proceeding until 2014, two years after he received his last
paycheck, petitioner's claim seeking a mandamus to compel
to petitioner's assertion, respondent's overtime
policy change issued in August 2014 does not alter this
conclusion. Petitioner's alleged grievance that he was
not paid duly owed overtime wages between 2008 and 2014 in
contravention of Civil Service Law § 134 (1) existed
irrespective of the new policy. Also, in our view, the
meeting that resulted in the August 2014 policy change did
not constitute a "fresh, complete and unlimited
examination" of the overtime policy so as to extend the
statute of limitations (Raykowski v New York City Dept.
of Transp., 259 A.D.2d 367, 368  [internal
quotation marks and citation omitted]; see Matter of
Chisholm v Martinez, 277 A.D.2d 166, 167 ).
disagree with petitioner's assertion that
respondent's determination to apply the new overtime
policy only prospectively, and not retroactively, from August
2014 was arbitrary and capricious. This determination was
discussed and considered at a meeting, and the ultimate
decision to apply the policy prospectively stemmed from a
"general consensus" of those present at the
meeting. In particular, it was noted that a retroactive
application would require respondent to pick an arbitrary
cutoff date as to how far back to apply the new policy and
would involve a significant undertaking to determine the
specific amounts owed to a PSU investigator in light of the
turnover of investigators in the PSU. Furthermore, there is
no indication that the discrepancy in calculating the
overtime stemmed from any intent to treat PSU investigators
differently from non-PSU investigators. Under these
circumstances, we cannot say that respondent's
determination was taken without sound basis in reason or
regard to the facts (see Matter of Peckham v
Calogero, 12 N.Y.3d 424, 431 ; Matter of
Goodfellow v Bahou, 92 A.D.2d 1085, 1085-1086 ,
lv denied 59 N.Y.2d 606');">59 N.Y.2d 606 ; compare Matter
of O'Neill v Pfau, 23 N.Y.3d at 996).
remaining contention has been examined and is ...