Aponte v. Giardino

Order, Supreme Court, New York County, entered October 4, 1976, granting, inter alia, respondents’ cross motion to dismiss petition, unanimously reversed to extent appealed from, on the law and without costs or disbursements, the motion to dismiss is denied, the petition is reinstated, and respondents shall serve their answer within 20 days after service by appellant upon respondents of a copy of the order to be entered hereon with notice of entry thereof. In this article 78 proceeding, petitioner sought her reinstatement as an employee of the Board of Higher Education of the City of New York. The court at Special Term dismissed the *939petition as time-barred on the view that the proceeding was not commenced for more than four months after petitioner was notified of her dismissal. However, as respondents frankly acknowledge, the law is now clear that the four-month period of limitation does not start to run until a demand has been made and refused. (See Matter of Johnson v Director, Downstate Med. Center, 52 AD2d 357, affd 41 NY2d 1061.) So judged, it is conceded that the proceeding was timely commenced. Concur—Lupiano, J. P., Silverman, Lane, Sandler and Sullivan, JJ.