        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1110.1
CA 13-00109
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF LAURA SPEIS,
PETITIONER-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PENFIELD CENTRAL SCHOOLS,
RESPONDENT-RESPONDENT-APPELLANT.


CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (MICHAEL
T. HARREN OF COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT.

FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C., EAST SYRACUSE
(CHARLES E. SYMONS OF COUNSEL), FOR RESPONDENT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment (denominated decision and
order) of the Supreme Court, Monroe County (Thomas M. Van Strydonck,
J.), entered April 4, 2012 in a proceeding pursuant to CPLR article
78. The judgment, inter alia, granted the motion of respondent to
dismiss the petition.

     It is hereby ORDERED that said cross appeal is unanimously
dismissed, the judgment is reversed on the law without costs, the
motion is denied, the petition is reinstated, respondent is granted 20
days from service of the order of this Court with notice of entry to
serve and file an answer, and the matter is remitted to Supreme Court,
Monroe County, for further proceedings in accordance with the
following Memorandum: Petitioner commenced this CPLR article 78
proceeding seeking, inter alia, reinstatement of her employment with
respondent together with certain backpay. Prior to commencing this
proceeding, petitioner had been employed by respondent as a teacher
until 2005, when her position was abolished. Pursuant to Education
Law § 3013 (3) (a), petitioner was placed on a “preferred eligible
list of candidates for appointment to a vacancy . . . that may
thereafter occur in an office or position similar to the one which
[petitioner] filled.” In her petition, petitioner alleged that such a
vacancy occurred in 2008 and that respondent failed to inform her of
that vacancy. According to petitioner, it was not until August 2011
that she learned that respondent had hired a third party to fill the
position without first offering it to teachers on the preferred list.
Consequently, petitioner commenced this proceeding in December 2011.
Thereafter, respondent made a pre-answer motion seeking, inter alia,
dismissal of the petition pursuant to CPLR 7804 (f) on the ground that
the relief requested was barred by the doctrine of laches. Petitioner
cross-moved to amend the petition to add a necessary party and for
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                                                         CA 13-00109

leave to file a late notice of claim, if required. Supreme Court
granted respondent’s motion to dismiss on the ground that petitioner’s
three-year delay in bringing this proceeding after respondent hired
the third party was unreasonable and therefore the doctrine of laches
barred this proceeding. The court further denied as moot petitioner’s
cross motion. Petitioner appeals, and respondent cross-appeals.

     We agree with petitioner on her appeal that the court erred in
granting respondent’s motion on the ground that this proceeding is
barred by the doctrine of laches (see generally Austin v Board of
Higher Educ. of City of N.Y., 5 NY2d 430, 442; Matter of Kaye v Board
of Ed., Merrick Union Free Sch. Dist., 97 AD2d 794, 794-795). “Where
the aggrieved party is a wrongfully terminated permanent civil service
employee seeking reinstatement, his [or her] remedy is by way of
mandamus to compel the performance of a ministerial act enjoined by
law” (Matter of Curtis v Board of Educ. of Lafayette Cent. Sch. Dist.,
107 AD2d 445, 447). Inasmuch as this proceeding is in the nature of
mandamus to compel, it was required to have been commenced “within
four months after the refusal by respondent, upon the demand of
petitioner, to perform its duty” (Matter of Densmore v
Altmar-Parish-Williamstown Cent. Sch. Dist., 265 AD2d 838, 839, lv
denied 94 NY2d 758; see CPLR 217 [1]). “[A] petitioner[, however,]
may not delay in making a demand in order to indefinitely postpone the
time within which to institute the proceeding. The petitioner must
make his or her demand within a reasonable time after the right to
make it occurs, or after the petitioner knows or should know of the
facts which give him or her a clear right to relief, or else, the
petitioner’s claim can be barred by the doctrine of laches” (Matter of
Barresi v County of Suffolk, 72 AD3d 1076, 1076, lv denied 15 NY3d
705; see Matter of Devens v Gokey, 12 AD2d 135, 136-137, affd 10 NY2d
898; Matter of Chevron U.S.A. Inc. v Commissioner of Envtl.
Conservation, 86 AD3d 838, 840; Curtis, 107 AD2d at 447-448).

     Here, petitioner made her demand upon respondent no later than
December 23, 2011, upon her filing of the petition, which “may be
construed as the demand” (Matter of Meegan v Griffin, 161 AD2d 1143,
1143, lv denied 76 NY2d 710, rearg denied 76 NY2d 1018; see Matter of
Thomas v Stone, 284 AD2d 627, 628, lv dismissed 96 NY2d 935, lv denied
97 NY2d 608, cert denied 536 US 960). Petitioner submitted unrefuted
sworn allegations that she did not learn of the vacancy or
respondent’s decision to hire a third party to fill it until August
2011. Thus, August 2011 was the earliest time that petitioner knew or
should have known of the facts that provided her with a clear right to
relief (see generally Chevron U.S.A. Inc., 86 AD3d at 840; Barresi, 72
AD3d at 1076). Petitioner thereafter made her demand upon respondent
by filing the petition in December 2011. We conclude that, under the
circumstances presented here, petitioner’s delay was not unreasonable.
Thus, the court erred in granting respondent’s pre-answer motion to
dismiss the petition based on the doctrine of laches. We therefore
reverse the judgment, deny respondent’s motion, reinstate the
petition, and grant respondent 20 days from service of the order of
this Court with notice of entry to serve and file an answer; we
further remit the matter to Supreme Court to determine petitioner’s
                                 -3-                         1110.1
                                                        CA 13-00109

cross motion.

     In addition, respondent’s cross appeal must be dismissed because
it is not aggrieved by the judgment granting its motion (see generally
Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). To
the extent that respondent contends as an alternative ground for
affirmance that petitioner was required to file a notice of claim
prior to commencing this proceeding (see id.; see generally Parochial
Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546), we
reject that contention. “A notice of claim is not a condition
precedent to a special proceeding properly brought pursuant to CPLR
article 78, in the nature of mandamus, seeking judicial enforcement of
a legal right derived through enactment of positive law” (Matter of
Sharpe v Sturm, 28 AD3d 777, 778-779; see also Matter of Brunecz v
City of Dunkirk Bd. of Educ., 23 AD3d 1126, 1127). Furthermore,
because the petition may be construed as the demand, we reject
respondent’s contention that the proceeding was barred by the statute
of limitations (see Meegan, 161 AD2d at 1143; see also CPLR 217 [1]).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
