Opinion
906358-20
01-12-2021
In the Matter of the Application of Lawrence W. DOYLE and John F. Moynihan, Petitioners, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE OFFICE OF the ATTORNEY GENERAL, Respondent.
Powhida & Cano, PLLC, Attorneys for Petitioners, Alexander Powhida, Esq., of counsel, 36 South Pearl Street, Albany, New York 12207. Hon. Letitia James, Esq., Attorney General of the State of New York, Attorney for Respondent, Andrew W. Koster, Esq., of counsel, The Capitol, Albany, New York 12224.
Powhida & Cano, PLLC, Attorneys for Petitioners, Alexander Powhida, Esq., of counsel, 36 South Pearl Street, Albany, New York 12207.
Hon. Letitia James, Esq., Attorney General of the State of New York, Attorney for Respondent, Andrew W. Koster, Esq., of counsel, The Capitol, Albany, New York 12224.
Henry F. Zwack, J.
By Order to Show Cause, the petitioners Lawrence W. Doyle and John F. Moynihan seek in this Article 78 proceeding mandamus and an Order compelling the respondent New York State Attorney General — particularly the Office of Charities Bureau — to issue a formal written determination denying their whistleblower complaint. The respondent opposes, and moves to dismiss pursuant to CPLR 3211(a)(5) and 3211(a)(7). By a separate Order to Show Cause, the petitioners also move for the admission, pro hoc vice, of Brian R. Della Rocca, Esq., to appear in this proceeding, which is not opposed by the respondent.
For the reasons that follow the Court grants the respondent's motion to dismiss, and dismisses the Petition in its entirety. The petitioners' pro hac vice motion is dismissed as academic.
By Petition filed on October 5, 2020, the petitioners seek mandamus and to compel the respondent to issue a written formal determination denying their whistleblower complaint submitted to the respondent's Charities Bureau ("Bureau") on June 19, 2018. The petitioners tell the Court that they made numerous inquiries to the Bureau on their complaint, and were verbally advised on November 8, 2019 by Bureau Deputy Chief Karin Kunstler Goldman ("Goldman") that the Attorney General's Office was not going to take any action on their complaint. The petitioners then called Goldman on two occasions to request a written determination, and were advised on November 20, 2019 to contact the Bureau Chief James Sheehan ("Sheehan"). On December 6, 2019, Sheehan advised the petitioners that the Bureau chose not to investigate the complaint and also denied their request for a written determination of denial.
As noted, the respondent moves to dismiss, asserting that mandamus is time barred, and also that the Petition fails to state a cause of action (particularly that mandamus is not available, where as here, the performance of the duty demanded is discretionary, and not a duty required by law).
The Court turns first to the respondent's argument that the Petition is barred by the four month statute of limitations applicable to Article 78 proceedings ( CPLR 217(1) ). Here, the Court is mindful that an Article 78 is timely if commenced within four months of when the determination was final, binding and had a direct impact on the petitioners ( New Surfside Nursing Home, LLC v Daines, 103 AD3d 637 [2d Dept 2013] ). In the context of a petition seeking mandamus, the four months "begin(s) to run when the petitioner demands that the official act and the official refuses" ( Matter of Chevron U.S.A. Inc. v Commissioner of Envtl. Conservation, 86 AD3d 838, 840 [3d Dept 2010] ) — which on this record clearly occurred on November 8, 2019, given the petitioners' statement that on that date they asked Goldman about their complaint, and in response "were told that the NY Attorney General's Office are (sic) not going to take action on the submission." Simply stated, Goldman's response left "no doubt" that the Bureau "had reached a definitive position" and would take no further action on the petitioners' complaint ( Matter of Best Payphones, Inc. v Department of Info. Tech & Telcom. of City of NY, (5 NY3d 30, 34 [2005] ), thereby then commencing the running of the statue of limitations, and requiring this proceeding to have been filed by March 8, 2020. Clearly, the Petition filed on October 5, 2020 is not timely.
Nor are the petitioners entitled to the tolling afforded by the Governor's Executive Order 202.8, which is applicable to time limitations that came due on or after March 16, 2020.
Here, the Court is not persuaded by the petitioner's argument that the respondent was required to provide a written determination, or that their demand for a written determination acted to extend the effective date of the Bureau's November 8, 2020 determination to not act on their complaint. Notably, the petitioners point to no statute that entitles them to a written determination. Further, an "oral notification is sufficient to commence the running of the statute of limitations when the determination is unambiguous and its effect certain" ( Matter of Richmondville Volunteer Emergency Squad, Inc. v New York State Department of Health, 107 AD3d 1098, 1100 [3d Dept 2013], quotations and citations omitted). Beginning with the November 8, 2019 Goldman call, and continuing thereafter, the respondent consistently reaffirmed its determination, never leaving any doubt that it would not act on the petitioners' complaint (Matter of Alterra Healthcare Corp. v Novello, 306 AD2d 787, 789 [3d Dept 2003] ).
Even allowing the petitioners' call to Goldman on November 12, 2019, to somehow extended the finality of November 8, 2019 determination, this proceeding is still time-barred. Further, the petitioners' continuing calls through December 6, 2019 were, at best, requests to reconsider and could not extend the time limitations ( Matter of Alterra, 306 AD2d at 789 ).
Having determined that the petition is time-barred, it is not necessary to consider the respondent's motion to dismiss for failure to state a claim. This said, the petitioners are nonetheless not entitled to a writ of mandamus to compel. On a "motion to dismiss a CPLR article 78 proceeding for failure to state of a cause of action requires the reviewing court to assume the truth of the allegations in the petition, consider them in the most favorable light and not consider the allegations in support of the motion" ( Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557, 561 [3d Dept 2000], citations omitted). Mandamus is "an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought" (Matter of Johnson v Corbitt, 87 AD3d 1214, 1215 [3d Dept 2011], lv denied 18 NY3d 802 [2011], citations omitted). "The act sought to be compelled must be ministerial, nondiscretionary and nonjudgmental, and must be premised upon specific statutory authority mandating performance in a specific manner" (Matter of Brown v New York State Dept. of Social Servs., 106 AD2d 740, 741 [3d Dept 1984], citations omitted).
Turning to the Petition, the petitioners failed to point to any specific authority mandating the Bureau to issue a written determination of its decision not to pursue their complaint. Certainly, it was the petitioners' burden to make some allegation or submit some evidence showing an entitlement to relief they seek ( Matter of Cumberland v Commissioner of Corr. & Community Supervision , 131 AD3d 735, 736 [3d Dept 2015] ). Beyond merely reciting a history of their requests to the Bureau, and responses received, they make no factual allegations of an evidentiary nature that the Bureau has a mandatory duty to investigate every complaint received or to provide a written determination if it decides not to act on a complaint. Nor is the Court aware that the Bureau is under such a mandatory duty — rather only that the Bureau's consideration of a complaint is discretionary and is an exercise of its judgment or discretion. This said, in the absence of factual allegations or evidence entitling them to mandamus, their Petition must be dismissed.
Lastly, on account of the dismissal of the Petition, the petitioners' motion for an Order admitting pro hac vice counsel in the matter is dismissed as academic.
Accordingly, it is
ORDERED, that the respondent's motion to dismiss is granted in its entirety; and it is further
ORDERED, that the Petitioners' Article 78 Petition is dismissed in entirety; and it is further
ORDERED, that the Petitioners' motion to admit pro hac vice Brian R. Della Rocca, Esq., is denied as moot.
This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court with NYSCEF, which shall not constitute filing and entry under CPLR 2220. Counsel for the respondent is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.