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

524
CA 15-01750
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF KENNETH M. BUTKOWSKI,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRENDAN J. KIEFER, AS CHIEF OF VILLAGE OF
KENMORE FIRE DEPARTMENT, AND VILLAGE OF
KENMORE, RESPONDENTS-RESPONDENTS.


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

BOND, SCHOENECK & KING, PLLC, BUFFALO (MARK A. MOLDENHAUER OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Frederick J. Marshall, J.), entered January 7, 2015 in a
proceeding pursuant to CPLR article 78. The judgment granted the
motion of respondents to dismiss the amended petition and dismissed
the amended petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion is denied,
the amended petition is reinstated, and the amended petition is
granted.

     Memorandum: On March 5, 2014, petitioner commenced this
proceeding seeking an order directing respondents to reinstate him to
his part-time firefighter position with the Village of Kenmore Fire
Department, together with back pay and benefits. By letter dated
November 13, 2013, respondent Village of Kenmore advised petitioner
that his employment was terminated, effective that day, because his
certification as a first responder or as an emergency medical
technician had expired. Pursuant to CPLR 7804 (f), respondents moved
to dismiss the amended petition on various grounds, and Supreme Court
granted the motion on the ground that the proceeding was time-barred.
That was error.

     We agree with petitioner that this proceeding was in the nature
of mandamus to compel inasmuch as he was entitled to a hearing
pursuant to Civil Service Law § 75 (1) (c), but no such hearing was
held (see generally Matter of De Milio v Borghard, 55 NY2d 216, 219).
Respondents contend that no hearing was required because petitioner
lacked a qualification for his employment, which is “separate and
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                                                         CA 15-01750

distinct from an act of misconduct by a municipal employee in the
performance of his or her work” (Matter of Felix v New York City Dept.
of Citywide Admin. Servs., 3 NY3d 498, 505; see Matter of New York
State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 282-
283). In Felix and other cases relied upon by respondents, however,
there was a local law, ordinance, or regulation setting forth the
employment requirement (see Felix, 3 NY3d at 501-502 [local law];
Matter of Stolzman v New York State Dept. of Transp., 68 AD3d 1331,
1332 [civil service classification standard], lv denied 14 NY3d 708;
Mandelkern v City of Buffalo, 64 AD2d 279, 280 [ordinance]).
Similarly, in Lanterman, the collective bargaining agreement set forth
the credentials required of the employee (id. at 282-283). Here,
respondents did not rely on any rule, ordinance, or regulation, but
rather relied on a collective bargaining agreement that applied only
to full-time firefighters, not to part-time firefighters such as
petitioner. “[B]oth due process and fundamental fairness require that
a qualification or requirement of employment be expressly stated in
order for an employer to bypass the protections afforded by the Civil
Service Law or a collective bargaining agreement and summarily
terminate an employee” (Matter of Lutz v Krokoff, 102 AD3d 146, 149-
150, lv denied 20 NY3d 860).

     In a proceeding in the nature of mandamus to compel, the statute
of limitations runs from the date the petitioner’s demand for
reinstatement is refused (see De Milio, 55 NY2d at 220). Petitioner’s
commencement of this CPLR article 78 proceeding constitutes such a
demand (see Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181,
1182-1183; Matter of Thomas v Stone, 284 AD2d 627, 628, lv dismissed
96 NY2d 935, lv denied 97 NY2d 608, cert denied 536 US 960), and
therefore this proceeding is not barred by the statute of limitations.
We reject respondents’ alternative ground for affirmance (see Matter
of Harnischfeger v Moore, 56 AD3d 1131, 1131-1132; see generally
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-
546), i.e., that service of the petition and notice of petition was
untimely pursuant to CPLR 306-b. We construe respondents’ motion to
dismiss as a refusal of petitioner’s demand for reinstatement (see
generally Thomas, 284 AD2d at 628), which began the running of the
statute of limitations. Thus, at the time respondents made their
motion, petitioner still had time to serve his pleadings within the
time limits of CPLR 306-b.

     We reject respondents’ further alternative ground for affirmance
that this proceeding is barred by the doctrine of laches. A
petitioner may not unreasonably delay in making a demand or the
proceeding will be barred by laches (see Speis, 114 AD3d at 1182;
Matter of Densmore v Altmar-Parish-Williamstown Cent. Sch. Dist., 265
AD2d 838, 839). Inasmuch as petitioner commenced this proceeding less
than four months after he was terminated and the right to make the
demand for reinstatement arose, we conclude that respondents’
contention is without merit (cf. Thomas, 284 AD2d at 628; Densmore,
265 AD2d at 839).

     Finally, respondents contend as another alternative ground for
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                                                         CA 15-01750

affirmance that the amended petition should be dismissed because the
determination to terminate petitioner was not arbitrary and capricious
or contrary to law. We reject that contention, and we conclude that
the termination of petitioner without a hearing is arbitrary and
capricious (see Lutz, 102 AD3d at 150). Ordinarily, when a motion to
dismiss is denied, “the court shall permit the respondent to answer,
upon such terms as may be just” (CPLR 7804 [f]). Where, however, the
“facts are so fully presented in the papers of the respective parties
that it is clear that no dispute as to the facts exists and no
prejudice will result from the failure to require an answer,” a
remittal to allow the respondent to file an answer is not necessary
(Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop.
Educ. Servs. of Nassau County, 63 NY3d 100, 102; see Matter of
Kickertz v New York Univ., 25 NY3d 942, 944). Upon examining the
submissions of the parties, we conclude that there exists no issue
“ ‘which might be raised by answer concerning the merits of the
petitioner’s application’ ” (Matter of Julicher v Town of Tonawanda,
34 AD3d 1217, 1217; see Matter of Kuzma v City of Buffalo, 45 AD3d
1308, 1310-1311; cf. Matter of Timmons v Green, 57 AD3d 1393, 1394-
1395). Indeed, counsel for respondents indicated during oral argument
of this appeal that it would be appropriate for this Court to render a
decision on the merits if we disagreed with their contentions raised
on the appeal, and counsel did not request an opportunity to submit an
answer. We therefore reverse the judgment and grant the amended
petition seeking reinstatement, as well as back pay and benefits, to
the date of the commencement of this proceeding (see Matter of Diggins
v Honeoye Falls-Lima Cent. Sch. Dist., 50 AD3d 1473, 1474).




Entered:   June 17, 2016                       Frances E. Cafarell
                                               Clerk of the Court
