New York Court of Appeals, 1983

Biondo v. New York State Board of Parole

New York Court of Appeals · Decided November 1, 1983

60 N.Y.2d 832; 458 N.E.2d 371; 470 N.Y.S.2d 130; 1983 N.Y. LEXIS 3506

Cases that cite this one

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

Scales v. New York State Division of Parole (District Court, S.D. New York 2005)
Pisano v. Shillinger (Wyo. 1992)
Guirdanella v. New York State Division of Housing & Community Renewal (New York Supreme Court 1988)
Owners Committee on Electric Rates, Inc. v. Public Service Commission (Appellate Division of the Supreme Court of New York 1989)
Jeanty v. The City Of New York (District Court, S.D. New York 2019)
Cortes v. Mujica (New York Supreme Court 2016)
Saferstein v. Lawyers' Fund for Client Protection (Appellate Division of the Supreme Court of New York 2002)
Matter of Benjamin v. New York City Dept. of Educ. (Appellate Division of the Supreme Court of New York 2014)
Carter v. State of New York (N.Y. 2000)
Vadell v. City of New York Health & Hospitals Corp. (Appellate Division of the Supreme Court of New York 1996)
Abamont v. Cortines (New York Supreme Court 1995)
Chaban v. Board of Education (Appellate Division of the Supreme Court of New York 1994)
Wasielewski v. Vossler (Appellate Division of the Supreme Court of New York 1993)
Di Cocco v. City of Schenectady (Appellate Division of the Supreme Court of New York 1991)
Nickerson v. City of Jamestown (Appellate Division of the Supreme Court of New York 1991)
Bludson v. Popolizio (Appellate Division of the Supreme Court of New York 1990)
Edmead v. McGuire (N.Y. 1986)
McCrain v. Metropolitan Transp. Auth. (New York Supreme Court, New York County 2025)
Archer v. Metropolitan Transp. Auth. (MTA) (New York Supreme Court, New York County 2025)
Archer v. Metropolitan Transp. Auth. (MTA) (New York Supreme Court, New York County 2025)
Argo v. New York City Employees Retirement Sys. NYCERS (Appellate Division of the Supreme Court of New York 2025)
Matter of McArthur v. Town of Brookhaven Dept. of Hous. & Human Servs. (Appellate Division of the Supreme Court of New York 2024)
Matter of Lobban v. New York State Dept. of Health Vital Records (New York Supreme Court, Kings County 2024)
Matter of Harrison v. Warhit (Appellate Division of the Supreme Court of New York 2021)
Matter of Shoga v. Annucci (Appellate Division of the Supreme Court of New York 2021)

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

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Supreme Court, Albany County, for a hearing to determine when petitioner was informed of the appeal board’s determination.

*834The four-month Statute of Limitations did not begin to run until the petitioner received notice of the appeal board’s determination (see, e.g., 8 Weinstein-Korn-Miller, NY Civ Prac, par 7804.02; Matter of Abramson v Commissioner of Educ., 1 AD2d 366, 371; cf. Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 41 NY2d 926). The contrary conclusion reached by the courts below, that the running of the statutory period began to run immediately upon the issuance of the determination, overlooks the additional requirement that the petitioner be “aggrieved” by the determination (Matter of Martin v Ronan, 44 NY2d 374, 381). We have previously held that for the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final (Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352). A similar principle should apply when the petitioner has received no notice, ambiguous or otherwise, of the determination by which he is said to be aggrieved. Indeed, fundamental fairness would seem to compel the conclusion that a petitioner should not be held to have been dilatory in challenging a determination of which he was not aware (cf. Matter of Bianca v Frank, 43 NY2d 168).

We also note that although the petitioner’s sentence has expired it cannot be said, as we recently held in Matter of Tremarco v New York State Bd. of Parole (58 NY2d 968), that the proceeding has been rendered moot. In that case the sentence expired after the article 78 proceeding had been commenced thus rendering academic the only question presented in the petition, namely, whether petitioner was entitled to remain on parole without a further hearing. Here on the other hand, the sentence expired while the petitioner’s case was pending before the appeal board, and the propriety of its decision to dismiss for mootness is the primary issue raised in the petition. Nothing has occurred since the commencement of that proceeding to render that issue moot. Moreover, in contrast to Tremarco, here petitioner was found to have been a parole violator which may have lasting consequences despite the expiration of his sentence.

*835Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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, and matter remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.

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