New York Court of Appeals, 1983

Fiedelman v. New York State Department of Health

New York Court of Appeals · Decided February 10, 1983

58 N.Y.2d 80; 445 N.E.2d 1099; 459 N.Y.S.2d 420; 1983 N.Y. LEXIS 2826

Cases that cite this one

28 later published cases cite this decision. The 25 that cite it most often are listed here.

Matter of Gillard v. Annucci (Appellate Division of the Supreme Court of New York 2019)
Lumbermens Mutual Casualty Co. v. City of New York (Appellate Division of the Supreme Court of New York 2004)
Singh v. State of New York (Appellate Division of the Supreme Court of New York 2025)
Matter of Brownell v. New York State Justice Ctr. for the Protection of People with Special Needs (Appellate Division of the Supreme Court of New York 2023)
Matter of Passmore (OB/GYN of Huntington, PLLC--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2022)
Matter of Malik v. State of New York Indus. Bd. of Appeals (Appellate Division of the Supreme Court of New York 2019)
JOHNSTON, WILLIAM B. v. KIRKLAND, GALEN D. (Appellate Division of the Supreme Court of New York 2012)
Johnston v. Kirkland (Appellate Division of the Supreme Court of New York 2012)
Johnston v. Kirkland (Appellate Division of the Supreme Court of New York 2012)
Lester v. New York State Office of Parks (Appellate Division of the Supreme Court of New York 2009)
IESI NY Corp. v. Martinez (Appellate Division of the Supreme Court of New York 2004)
ATM One v. Landaverde (Appellate Division of the Supreme Court of New York 2003)
Montella v. Safir (Appellate Division of the Supreme Court of New York 2002)
ATM One, LLC v. Escobar (Nassau County District Court 2002)
ATM One, L. L. C. v. Landaverde (Appellate Terms of the Supreme Court of New York 2001)
Doolittle v. County of Broome (Appellate Division of the Supreme Court of New York 2000)
City of Syracuse v. Public Employment Relations Board (Appellate Division of the Supreme Court of New York 2000)
De Milt v. Tax Appeals Tribunal of State of New York (Appellate Division of the Supreme Court of New York 1996)
People v. Fulton (New York Supreme Court 1994)
Taylor v. Vassar College (Appellate Division of the Supreme Court of New York 1988)
Callace v. New York State Employees' Retirement System (Appellate Division of the Supreme Court of New York 1988)
People ex rel. Smith v. New York State Board of Parole (Appellate Division of the Supreme Court of New York 1987)
Callace v. New York State Employees Retirement System (New York Supreme Court 1987)
Willoughby Nursing Home v. Axelrod (Appellate Division of the Supreme Court of New York 1986)
Carborundum Abrasives Co. v. New York State Department of Environmental Conservation (New York Supreme Court 1985)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Per Curiam.

The provisions of CPLR 2103 (subd [c]) prescribing extensions of time where service on a party is made by mail do not apply to administrative proceedings.

The order of the Commissioner of Health imposing fines and suspending petitioner’s right to issue prescriptions was mailed to petitioner and his attorney by certified mail on April 3, 1981 in conformity with the provisions of subdivision 7 of section 3393 of the Public Health Law. Subdivision 1 of section 3394 of that law provides for judicial review under CPLR article 78, and subdivision 2 prescribes that application for such review must be made “within sixty days after service of the order or determination upon the person whose license, certificate, right or privilege is affected thereby or upon the attorney of record for such person”. The present proceeding was commenced by an order to show cause served on the respondents on June 4,1981, the 62nd day after the mailing of the administrative determination. The proceeding was therefore untimely unless petitioner may avail himself of the provi*82sions of CPLR 2103 granting extensions of time in certain circumstances where service is made by mail.*

Respondent’s motion to dismiss this proceeding was granted at Special Term. The Appellate Division reversed, two Justices dissenting, held the proceeding timely, and granted petitioner leave to appeal on a certified question. We now reverse.

CPLR 2103 is a carry forward of the substance of sections 163 and 164 of the former Civil Practice Act. Section 163 had provided, inter alia, that where a party had appeared in an action, a notice or other paper required to be served must be served on his attorney. Section 164 provided, inter alia, that when an adverse party had a specified time after service within which to do an act, three days were to be added to the time specified if such service was made through the post office. The extension provision of section 164 was held to be applicable to service of a paper by an administrative agency (e.g., Weingarten v Cohen, 275 App Div 253, affd 300 NY 528).

The application of CPLR 2103, however, is expressly restricted to service “in a pending action”. After providing in subdivision (a) who can make service, subdivision (b) provides:. “Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon his attorney”. The manner of such service is then prescribed in paragraphs 1 through 4. In the sequential subdivision (c) provision is made for service on a party himself if the party has not appeared by an attorney or his attorney cannot be served, and the methods prescribed in paragraphs 1, 2 and 4 of subdivision (b) are incorporated by reference. Inasmuch as an administrative proceeding is not an action (see CPLR 105, subd [b]; Matter of Luoma v Spearin, Preston & Burrows, 282 App Div 612, affd 307 NY 728; Matter of Art Metal Constr. Co. v McGoldrick, 260 App Div 153; Matter of Clark, 60 Misc 2d 51) and in any event the article 78 proceeding was not pending until it had been instituted, the extension prescribed in CPLR 2103 (subd [b], par 2) is *83not available to extend the 60-day period prescribed in subdivision 2 of section 3394. The present article 78 proceeding was therefore not timely commenced.

No view is expressed whether service under section 3394 is deemed completed on the posting of the administrative order or on its receipt where service is made by mail inasmuch as this issue has not been raised or addressed by the parties on this appeal.

Finally, respondents did not waive their objection to the timeliness of petitioner’s article 78 proceeding as such an objection was contained in their answer (see CPLR 7804, subd [f]; 3211, subd [e]; Matter of Hans v Burns, 48 AD2d 947).

For the reasons stated, the order of the Appellate Division should be reversed, with costs, the petition dismissed and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in Per Curiam opinion.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, petition dismissed and question certified answered in the negative.

The provision in effect at the time of service in this case prescribed a three-day extension. By chapter 20 of the Laws of 1982 that period was enlarged to five days effective January 1, 1983.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.