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In re Granto

Supreme Court of New York, Fourth Department

March 24, 2017

IN THE MATTER OF NICOLAS GRANTO, RICHARD FLECK, KEVIN HENDERSON AND GEORGE MCDONELL, PETITIONERS-APPELLANTS,
v.
CITY OF NIAGARA FALLS, RESPONDENT-RESPONDENT. (APPEAL NO. 1.)

          MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (SEAN J. MACKENZIE OF COUNSEL), FOR PETITIONERS-APPELLANTS.

          CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M. MAZUR OF COUNSEL), FOR RESPONDENT-RESPONDENT.

          PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.

         Appeal 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.

         It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

         Memorandum: 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.

         We 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 [1]; 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.

         "[T]he 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).

         Contrary 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] [2]). "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).

         All 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).

         The 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.

         The 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.

         Petitioners 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.

         Petitioners 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 ...


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