In the Matter of Theresa E. S. Johnson, Appellant, v. New York City Employees' Retirement System et al., Respondents

In the Matter of Theresa E. S. Johnson, Appellant, v New York City Employees’ Retirement System et al., Respondents. [717 NYS2d 102] [MAJORITY] —Judgment, Supreme Court, New York County (Michael Stallman, J.), entered August 12, 1999, which, in a CPLR article 78 proceeding to annul respondent New York City Employees’ Retirement System’s determination denying petitioner’s application for a disability retirement, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs. Respondent’s determination denying petitioner a disability retirement became final and binding, and thus the four-month Statute of Limitations in CPLR 217 began to run, on or about February 20, 1998, when, respondent, by letter, advised petitioner of the denial of her application. The proceeding, which was not commenced until on or about January 20, 1999, is therefore time-barred. Petitioner’s second application, submitted July 16, 1998 without any new or additional evidence as required by respondent’s rule 23 (a) (2) (b), was, in effect, a request for reconsideration of respondent’s February 20, 1998 determination, and, as such, did not extend the limitations period (see, Matter of De Milio v Borghard, 55 NY2d 216, 220, 222). Concur — Sullivan, P. J., Rubin, Saxe, Buckley and Friedman, JJ.