Opinion
11294 Index 654551/17
03-19-2020
Irving LIEBLICH, etc., Plaintiff–Appellant, v. TEACHERS' RETIREMENT SYSTEM OF the CITY OF NEW YORK, Defendant–Respondent.
Squitieri & Fearon, LLP, New York (Stephen J. Fearon, Jr. of counsel), for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York (John Moore of counsel), for respondent.
Squitieri & Fearon, LLP, New York (Stephen J. Fearon, Jr. of counsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York (John Moore of counsel), for respondent.
Renwick, J.P., Gische, Mazzarelli, Webber, Singh, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about January 22, 2019, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's challenge to defendant's calculation of his pension is a challenge to an administrative determination, which should have been brought pursuant to CPLR article 78, and is barred by the applicable four-month statute of limitations ( CPLR 217[1] ; see Hughey v. Metropolitan Transp. Auth., 159 A.D.3d 596, 597, 74 N.Y.S.3d 16 [1st Dept. 2018] ; Clissuras v. City of New York, 131 A.D.2d 717, 718, 517 N.Y.S.2d 39 [2d Dept. 1987], appeal dismissed 70 N.Y.2d 795, 522 N.Y.S.2d 111, 516 N.E.2d 1224 [1987], cert denied 484 U.S. 1053, 108 S.Ct. 1003, 98 L.Ed.2d 970 [1988] ).
The determination—the exclusion of plaintiff's 2011 summer pay from the calculation of his pension benefits—became final and binding upon plaintiff in October 2011, when he received his benefits letter from defendant (see Matter of Eldaghar v. New York City Hous. Auth., 34 A.D.3d 326, 327, 824 N.Y.S.2d 268 [1st Dept. 2006], lv denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ). Defendant's February 22, 2017 letter responding to plaintiff's inquiry and stating that "there is nothing further than can be done" did not extend the limitations period ( id. ). We have considered plaintiff's remaining arguments and find them unavailing.