Opinion
March 13, 1992
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Callahan, J.P., Boomer, Balio, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and petition dismissed. Memorandum: Respondent contends that Supreme Court erred in denying its motion for summary judgment seeking dismissal of the petition on the ground that it was barred by the applicable Statute of Limitations. We agree. On March 11, 1982, petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to issue him an exempt fireman's certificate. The record establishes that petitioner requested an exempt fireman's certificate from respondent's fire chief on several occasions in 1967 and 1968 and was refused. At an examination before trial, petitioner testified that he stopped making requests for a certificate because he knew that it was not going to be granted. The record also establishes that, in May 1980, petitioner made a written request for an exempt fireman's certificate and was refused by the June 1980 resolution of respondent's past and present fire chiefs.
In this proceeding, petitioner asserts that respondent's refusal to issue him an exempt fireman's certificate constitutes a failure to perform a duty enjoined upon it by law. Petitioner's CPLR article 78 proceeding is in the nature of mandamus to compel and, therefore, must be commenced within four months after the respondent's refusal to perform its duty, upon the demand of petitioner (see, CPLR 217; Matter of Kaye v Board of Educ., 97 A.D.2d 794; Matter of Van Luven v Henderson, 52 A.D.2d 1042). Because this proceeding was not commenced within four months of either respondent's 1968 oral refusal or 1980 written refusal of petitioner's demands for an exempt fireman's certificate, it is time-barred (see, CPLR 217) and we need not determine which refusal commenced the running of the Statute of Limitations.