IN THE MATTER OF NICOLAS GRANTO, RICHARD FLECK, KEVIN HENDERSON AND GEORGE MCDONELL, PETITIONERS-APPELLANTS,
CITY OF NIAGARA FALLS, RESPONDENT-RESPONDENT. (APPEAL NO. 1.)
MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (SEAN J. MACKENZIE
OF COUNSEL), FOR PETITIONERS-APPELLANTS.
H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER
M. MAZUR OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN,
from a judgment (denominated order) of the Supreme Court,
Niagara County (Frank Caruso, J.), entered March 2, 2015
pursuant to a CPLR article 78 proceeding. The judgment
granted the motion of respondent to dismiss the petition.
hereby ORDERED that the judgment so appealed from is affirmed
Petitioners, members of the Niagara Falls Police Department
(NFPD), commenced this CPLR article 78 proceeding seeking
designation as police detectives pursuant to Civil Service
Law § 58 (4) (c) (ii). In appeal No. 1, petitioners
appeal from a judgment granting respondent's motion to
dismiss the petition on the ground that the proceeding was
not timely commenced. In appeal No. 2, petitioners Nicolas
Granto, Kevin Henderson and George McDonell (renewal
petitioners) appeal from an order denying their motion
seeking leave to renew their opposition to the relief granted
in the judgment in appeal No. 1.
reject petitioners' contention in appeal No. 1 that
Supreme Court erred in granting the motion and dismissing the
petition as untimely. It is well settled that where, as here,
the proceeding is in the nature of mandamus to compel, it
"must be commenced within four months after refusal by
respondent, upon demand of petitioner, to perform its
duty" (Matter of Densmore v
Altmar-Parish-Williamstown Cent. Sch. Dist., 265 A.D.2d
838, 839, lv denied 94 N.Y.2d 758; see CPLR
217 ; Matter of Speis v Penfield Cent. Schs., 114
A.D.3d 1181, 1182). " [A] petitioner[, however, ] may
not delay in making a demand in order to indefinitely
postpone the time within which to institute the proceeding.
The petitioner must make his or her demand within a
reasonable time after the right to make it occurs, or after
the petitioner knows or should know of the facts which give
him or her a clear right to relief, or else, the
petitioner's claim can be barred by the doctrine of
laches' " (Speis, 114 A.D.3d at 1182).
"The term laches, as used in connection with the
requirement of the making of a prompt demand in mandamus
proceedings, refers solely to the unexcused lapse of
time" and "does not refer to the equitable doctrine
of laches" (Matter of Devens v Gokey, 12 A.D.2d
135, 137, affd 10 N.Y.2d 898). Inasmuch as
"[t]he problem... is one of the [s]tatute of
[l]imitations[, ]... it is immaterial whether or not the
delay cause[s] any prejudice to the respondent"
(id.; see Matter of Norton v City of
Hornell, 115 A.D.3d 1232, 1233, lv denied 23
N.Y.3d 907; Matter of Thomas v Stone, 284 A.D.2d
627, 628, appeal dismissed 96 N.Y.2d 935, lv
denied 97 N.Y.2d 608, cert denied 536 U.S. 960;
Matter of Curtis v Board of Educ. of Lafayette Cent. Sch.
Dist., 107 A.D.2d 445, 448; see also Matter of
Sheerin v New York Fire Dept. Arts. 1 & 1B Pension
Funds, 46 N.Y.2d 488, 495-496). Thus, to the extent that
we held in Matter of Degnan v Rahn (2 A.D.3d 1301,
1302) that a respondent is required to make a showing of
prejudice to establish that a proceeding in the nature of
mandamus to compel is barred by the doctrine of laches, that
case is no longer to be followed.
four-month limitations period of CPLR article 78 proceedings
has been treat[ed]... as a measure of permissible delay in
the making of the demand' " (Norton, 115
A.D.3d at 1233). Here, petitioners asserted that they became
aware that they could be designated detectives under Civil
Service Law § 58 (4) (c) (ii) when Supreme Court granted
such relief to similarly-situated members of the NFPD in
September 2012 (see Matter of Sykes v City of Niagara
Falls, 112 A.D.3d 1302, 1302). Petitioners' demand,
therefore, should have been made no later than January 2013,
but petitioners did not make their demand to be designated as
detectives until March 2014, which was well beyond four
months after they knew or should have known of the facts that
provided them a clear right to relief (see Densmore,
265 A.D.2d at 839). Contrary to petitioners' contention
in appeal No. 1 that they had a reasonable excuse for the
delay in making the demand, there was nothing about the
pendency of the Sykes proceeding that should have
led petitioners to conclude that their own proceeding did not
have merit. In addition, the self-serving affidavit submitted
by petitioners in opposition to the motion, in which they
claimed that they had feared retaliation if they demanded
designation as detectives, is based solely upon conclusory
and speculative allegations, and thus does not substantiate
their assertion that they had a reasonable excuse for the
delay. We therefore conclude that "it was [well] within
the court's discretion to determine that petitioner[s]
unreasonably delayed in making the demand"
(Densmore, 265 A.D.2d at 839 ; see Norton,
115 A.D.3d at 1233).
to renewal petitioners' contention in appeal No. 2, we
conclude that the court properly denied their motion seeking
leave to renew. " A motion for leave to renew must be
based upon new facts that were unavailable at the time of the
original motion' and that would change the prior
determination" (Foxworth v Jenkins, 60 A.D.3d
1306, 1307; see CPLR 2221 [e] ). "Although a
court has discretion to grant renewal, in the interest of
justice, upon facts which were known to the movant at the
time the original motion was made..., it may not exercise
that discretion unless the movant establishes a reasonable
justification for the failure to present such facts on the
prior motion" (Robinson v Consolidated Rail
Corp., 8 A.D.3d 1080, 1080 [internal quotation marks
omitted]). Here, the affidavits of renewal petitioners and
their attorney did not present new facts, and renewal
petitioners failed to provide a reasonable justification for
the failure to produce the additional evidence in opposing
the laches argument that formed the basis for
respondent's motion to dismiss (see Garland v RLI
Ins. Co., 79 A.D.3d 1576, 1577, lv dismissed 17
N.Y.3d 774, 18 N.Y.3d 877; see also Wolfe v Wayne-Dalton
Corp., 133 A.D.3d 1281, 1284).
concur except Curran, J., who dissents and votes to reverse
in accordance with the following memorandum: I respectfully
dissent in appeal No. 1. The majority and I agree that this
proceeding is in the nature of mandamus. Such a proceeding
"must be commenced within four months after the refusal
by respondent, upon the demand of petitioner[s], to perform
its duty" (Matter of Densmore v
Altmar-Parish-Williamstown Cent. Sch. Dist., 265 A.D.2d
838, 839, lv denied 94 N.Y.2d 758). "[T]he
demand must be made within a reasonable time after the right
to make the demand occurs" (Matter of Devens v
Gokey, 12 A.D.2d 135, 136, affd 10 N.Y.2d 898).
"[A] demand should be made no more than four months
after the right to make the demand arises"
(Densmore, 265 A.D.2d at 839). Nonetheless,
"[t]he sole test [for courts to consider] is... whether,
under the circumstances of the case, the [petitioners']
delay in making the demand was unreasonably protracted"
(Matter of Perry v Blair, 49 A.D.2d 309, 315;
see Matter of Central Sch. Dist. No. 2 v New York State
Teachers' Retirement Sys., 27 A.D.2d 265, 268,
affd 23 N.Y.2d 213).
parties agree that the right to make the demand arose when
the Roving Anti-Crime Unit was disbanded on January 2, 2013.
At a minimum, the reasonable period of time in which to make
the demand was four months later, i.e., May 2, 2013.
Petitioners did not make their demand until 10 months later
in March of 2014. In my view, however, this 10-month delay in
making the demand was not so unreasonable as to deprive
petitioners of their day in court.
majority relies upon cases where either no excuse was offered
for a delay or where the court determined that the excuse was
so meritless as to be rejected as a matter of law (see
Matter of Norton v City of Hornell, 115 A.D.3d 1232,
1233, lv denied 23 N.Y.3d 907; see also
Devens, 12 A.D.2d at 136). Here, petitioners have
offered a viable excuse for the delay and, thus, in my view,
we have no need to reach the ill-stated language in
Matter of Degnan v Rahn (2 A.D.3d 1301, 1302).
Rather, the majority has apparently determined that the
excuse offered by petitioners here is meritless as a matter
of law. I disagree with that determination.
delayed their demand because they were awaiting this
Court's decision in Matter of Sykes v City of Niagara
Falls (112 A.D.3d 1302), a virtually identical situation
to the present matter-including a lengthier delay in making a
demand-and one involving the same police department. This
Court has previously accepted such an excuse as meritorious
(see Matter of Uphoff v Roberts, 244 A.D. 596, 597),
and I fail to appreciate any distinction between
Uphoff and the case before us here.
also assert that they feared retaliation from respondent if
they brought suit before this Court decided Sykes
based on their understanding of retaliatory actions having
been undertaken against the petitioners in Sykes.
Contrary to the majority, on this motion to dismiss, I am
unwilling to weigh the credibility of the affidavit submitted
by petitioners. The affidavit offers facts supporting
petitioners' explanation for awaiting our decision in