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

185
CA 11-00962
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF DAVID K. ROBIDA,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHRISTINE M. ZIEMBA, CHIEF OF POLICE,
CHEEKTOWAGA POLICE DEPARTMENT, AND TOWN OF
CHEEKTOWAGA, RESPONDENTS-RESPONDENTS.


LAW OFFICES OF W. JAMES SCHWAN, BUFFALO (W. JAMES SCHWAN OF COUNSEL),
FOR PETITIONER-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (CRAIG R. BUCKI OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated decision, order and judgment)
of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered
February 2, 2011 in a proceeding pursuant to CPLR article 78. The
judgment dismissed the petition as untimely.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination terminating him from
his employment as a police officer. Supreme Court properly granted
respondents’ motion to dismiss the proceeding as time-barred. The
amended charges against petitioner were brought pursuant to both Civil
Service Law § 75 and Town Law § 155, and a hearing was held in
accordance with those statutes. The Town Board of respondent Town of
Cheektowaga (Town Board) adopted a resolution that terminated
petitioner pursuant to, inter alia, Town Law § 155 for acts of
off-duty misconduct that the Town Board determined to be “acts of
delinquency seriously affecting [petitioner’s] general character and
fitness for office.”

     Town Law § 155 specifically provides that a CPLR article 78
proceeding to review a determination pursuant to the statute must be
commenced within 30 days of the determination and, inasmuch as it is
undisputed that this proceeding was commenced more than 30 days after
the Town Board’s determination, it is time-barred (see generally
Matter of Flores v Board of Trustees of Vil. of Dobbs Ferry, 37 AD3d
718, 719-720, lv denied 8 NY3d 815; Matter of Smith v Village of
Pawling, 215 AD2d 667; Matter of Healy v Village of Cooperstown, 70
                                 -2-                           185
                                                         CA 11-00962

AD2d 712). Contrary to petitioner’s contention, the 30-day
limitations period set forth in Town Law § 155 is not limited to those
disciplinary proceedings that were brought solely pursuant thereto.
The statute of limitations for a CPLR article 78 proceeding in which
the petitioner seeks to annul a determination pursuant to Civil
Service Law § 75 is governed by CPLR 217 (1), which provides that,
“[u]nless a shorter time is provided in the law authorizing the
proceeding,” the proceeding must be commenced within four months after
the determination to be reviewed becomes final. Here, such “shorter
time” was provided by Town Law § 155, which authorized the
disciplinary proceeding and under which petitioner’s employment was
terminated.




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
