Wasielewski v. Vossler , 605 N.Y.S.2d 612 ( 1993 )

Judgment reversed on the law with costs and petition reinstated. Memorandum: Supreme Court erred in summarily dismissing petitioner’s CPLR article 78 proceeding on the ground that it was not timely commenced within four months after the determination to be reviewed became "final and binding upon the petitioner” (CPLR 217). A challenged determination is final and binding when it "has an impact” upon the petitioner who is thereby aggrieved and the aggrieved party is notified of that determination (Matter of Edmead v McGuire, 67 NY2d 714, 716; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 357; see, Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834). Supreme Court concluded that the determination became "final and binding” upon petitioner on October 2, 1992, when respondents wrote a letter denying petitioner’s request for an appearance before the Commission to protest the deletion of the account clerk series from the promotional line for senior personnel clerk. That letter, however, was only a denial of a request to appear before respondents and cannot be construed as a "final and binding” determination with respect to petitioner’s eligibility to participate in the examination for senior personnel clerk. We conclude that it was not until petitioner received respondents’ letter dated March 17, 1993, denying her request to participate in the promotional examination, that she received notice of a final determination that had an impact which can be construed as "final and binding”. Because petitioner’s article 78 proceeding was commenced within four months after receipt of that determination, it was timely.

All concur except Lawton and Doerr, JJ., who dissent and vote to affirm in the following Memorandum: