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

1038
CA 15-02019
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


IN THE MATTER OF NICOLAS GRANTO, RICHARD FLECK,
KEVIN HENDERSON AND GEORGE MCDONELL,
PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (SEAN J. MACKENZIE OF
COUNSEL), FOR PETITIONERS-APPELLANTS.

CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M.
MAZUR OF COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Niagara County (Frank Caruso, J.), entered March 2, 2015 pursuant to a
CPLR article 78 proceeding. The judgment granted the motion of
respondent to dismiss the petition.

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

     Memorandum: Petitioners, members of the Niagara Falls Police
Department (NFPD), commenced this CPLR article 78 proceeding seeking
designation as police detectives pursuant to Civil Service Law § 58
(4) (c) (ii). In appeal No. 1, petitioners appeal from a judgment
granting respondent’s motion to dismiss the petition on the ground
that the proceeding was not timely commenced. In appeal No. 2,
petitioners Nicolas Granto, Kevin Henderson and George McDonell
(renewal petitioners) appeal from an order denying their motion
seeking leave to renew their opposition to the relief granted in the
judgment in appeal No. 1.

     We reject petitioners’ contention in appeal No. 1 that Supreme
Court erred in granting the motion and dismissing the petition as
untimely. It is well settled that where, as here, the proceeding is
in the nature of mandamus to compel, it “must be commenced within four
months after refusal by respondent, upon 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]; Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181, 1182).
“ ‘[A] petitioner[, however,] may not delay in making a demand in
order to indefinitely postpone the time within which to institute the
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                                                         CA 15-02019

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’ ” (Speis, 114 AD3d at 1182). “The term
laches, as used in connection with the requirement of the making of a
prompt demand in mandamus proceedings, refers solely to the unexcused
lapse of time” and “does not refer to the equitable doctrine of
laches” (Matter of Devens v Gokey, 12 AD2d 135, 137, affd 10 NY2d
898). Inasmuch as “[t]he problem . . . is one of the [s]tatute of
[l]imitations[,] . . . it is immaterial whether or not the delay
cause[s] any prejudice to the respondent” (id.; see Matter of Norton v
City of Hornell, 115 AD3d 1232, 1233, lv denied 23 NY3d 907; Matter of
Thomas v Stone, 284 AD2d 627, 628, appeal dismissed 96 NY2d 935, lv
denied 97 NY2d 608, cert denied 536 US 960; Matter of Curtis v Board
of Educ. of Lafayette Cent. Sch. Dist., 107 AD2d 445, 448; see also
Matter of Sheerin v New York Fire Dept. Arts. 1 & 1B Pension Funds, 46
NY2d 488, 495-496). Thus, to the extent that we held in Matter of
Degnan v Rahn (2 AD3d 1301, 1302) that a respondent is required to
make a showing of prejudice to establish that a proceeding in the
nature of mandamus to compel is barred by the doctrine of laches, that
case is no longer to be followed.

     “[T]he four-month limitations period of CPLR article 78
proceedings has been ‘treat[ed] . . . as a measure of permissible
delay in the making of the demand’ ” (Norton, 115 AD3d at 1233).
Here, petitioners asserted that they became aware that they could be
designated detectives under Civil Service Law § 58 (4) (c) (ii) when
Supreme Court granted such relief to similarly-situated members of the
NFPD in September 2012 (see Matter of Sykes v City of Niagara Falls,
112 AD3d 1302, 1302). Petitioners’ demand, therefore, should have
been made no later than January 2013, but petitioners did not make
their demand to be designated as detectives until March 2014, which
was well beyond four months after they knew or should have known of
the facts that provided them a clear right to relief (see Densmore,
265 AD2d at 839). Contrary to petitioners’ contention in appeal No. 1
that they had a reasonable excuse for the delay in making the demand,
there was nothing about the pendency of the Sykes proceeding that
should have led petitioners to conclude that their own proceeding did
not have merit. In addition, the self-serving affidavit submitted by
petitioners in opposition to the motion, in which they claimed that
they had feared retaliation if they demanded designation as
detectives, is based solely upon conclusory and speculative
allegations, and thus does not substantiate their assertion that they
had a reasonable excuse for the delay. We therefore conclude that “it
was [well] within the court’s discretion to determine that
petitioner[s] unreasonably delayed in making the demand” (Densmore,
265 AD2d at 839; see Norton, 115 AD3d at 1233).

     Contrary to renewal petitioners’ contention in appeal No. 2, we
conclude that the court properly denied their motion seeking leave to
renew. “ ‘A motion for leave to renew must be based upon new facts
that were unavailable at the time of the original motion’ and that
would change the prior determination” (Foxworth v Jenkins, 60 AD3d
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                                                         CA 15-02019

1306, 1307; see CPLR 2221 [e] [2]). “Although a court has discretion
to grant renewal, in the interest of justice, upon facts which were
known to the movant at the time the original motion was made . . . ,
it may not exercise that discretion unless the movant establishes a
reasonable justification for the failure to present such facts on the
prior motion” (Robinson v Consolidated Rail Corp., 8 AD3d 1080, 1080
[internal quotation marks omitted]). Here, the affidavits of renewal
petitioners and their attorney did not present new facts, and renewal
petitioners failed to provide a reasonable justification for the
failure to produce the additional evidence in opposing the laches
argument that formed the basis for respondent’s motion to dismiss (see
Garland v RLI Ins. Co., 79 AD3d 1576, 1577, lv dismissed 17 NY3d 774,
18 NY3d 877; see also Wolfe v Wayne-Dalton Corp., 133 AD3d 1281,
1284).

     All concur except CURRAN, J., who dissents and votes to reverse in
accordance with the following memorandum: I respectfully dissent in
appeal No. 1. The majority and I agree that this proceeding is in the
nature of mandamus. Such a proceeding “must be commenced within four
months after the refusal by respondent, upon the demand of
petitioner[s], to perform its duty” (Matter of Densmore v Altmar-
Parish-Williamstown Cent. Sch. Dist., 265 AD2d 838, 839, lv denied 94
NY2d 758). “[T]he demand must be made within a reasonable time after
the right to make the demand occurs” (Matter of Devens v Gokey, 12
AD2d 135, 136, affd 10 NY2d 898). “[A] demand should be made no more
than four months after the right to make the demand arises” (Densmore,
265 AD2d at 839). Nonetheless, “[t]he sole test [for courts to
consider] is . . . whether, under the circumstances of the case, the
[petitioners’] delay in making the demand was unreasonably protracted”
(Matter of Perry v Blair, 49 AD2d 309, 315; see Matter of Central Sch.
Dist. No. 2 v New York State Teachers’ Retirement Sys., 27 AD2d 265,
268, affd 23 NY2d 213).

     The parties agree that the right to make the demand arose when
the Roving Anti-Crime Unit was disbanded on January 2, 2013. At a
minimum, the reasonable period of time in which to make the demand was
four months later, i.e., May 2, 2013. Petitioners did not make their
demand until 10 months later in March of 2014. In my view, however,
this 10-month delay in making the demand was not so unreasonable as to
deprive petitioners of their day in court.

     The majority relies upon cases where either no excuse was offered
for a delay or where the court determined that the excuse was so
meritless as to be rejected as a matter of law (see Matter of Norton v
City of Hornell, 115 AD3d 1232, 1233, lv denied 23 NY3d 907; see also
Devens, 12 AD2d at 136). Here, petitioners have offered a viable
excuse for the delay and, thus, in my view, we have no need to reach
the ill-stated language in Matter of Degnan v Rahn (2 AD3d 1301,
1302). Rather, the majority has apparently determined that the excuse
offered by petitioners here is meritless as a matter of law. I
disagree with that determination.

     Petitioners delayed their demand because they were awaiting this
Court’s decision in Matter of Sykes v City of Niagara Falls (112 AD3d
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                                                         CA 15-02019

1302), a virtually identical situation to the present matter—including
a lengthier delay in making a demand—and one involving the same police
department. This Court has previously accepted such an excuse as
meritorious (see Matter of Uphoff v Roberts, 244 App Div 596, 597),
and I fail to appreciate any distinction between Uphoff and the case
before us here.

     Petitioners also assert that they feared retaliation from
respondent if they brought suit before this Court decided Sykes based
on their understanding of retaliatory actions having been undertaken
against the petitioners in Sykes. Contrary to the majority, on this
motion to dismiss, I am unwilling to weigh the credibility of the
affidavit submitted by petitioners. The affidavit offers facts
supporting petitioners’ explanation for awaiting our decision in Sykes
and, in my view, the only way to disregard it is to disbelieve it, a
function I maintain is inappropriate on this motion.

     I am concerned that the majority’s decision seeks to draw a hard
and fast line rather than following long-established precedent
requiring that we apply a facts-and-circumstances test to determine
whether the excuse for delay is reasonable (see People ex rel. Gas
Light Co. of Syracuse v Common Council of City of Syracuse, 78 NY 56,
63; People ex rel. McDonald v Lantry, 48 App Div 131, 132; Matter of
McDonald, 34 App Div 512, 514-515). Based on the above precedent, we
also are permitted, in a case where a petitioner offers an excuse for
a delay, to consider prejudice to the respondent or other persons (see
Gas Light Co. of Syracuse, 78 NY at 63; McDonald, 34 App Div at 514).
While I agree that an unexplained delay should not be excused based
solely on a lack of prejudice, I also submit that an explained delay
warrants at least some consideration of prejudice.

     In this case, there is no evidence in the record that
petitioners’ designation and compensation as detectives will cause
prejudice in displacing anyone who has occupied the position in the
interim (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d
430, 441; Matter of Williams v Pyrke, 233 App Div 345, 346, citing
People ex rel. Young v Collis, 6 App Div 467, 469). Therefore, there
also is no issue of the respondent suffering prejudice in being
required to compensate multiple employees for the same positions. In
my view, the above facts, together with the excuse offered by
petitioners and respondent’s conceded absence of prejudice, render it
appropriate to conclude that the petitioners’ delay was not
unreasonable.

     For these reasons, I would reverse the judgment, deny
respondent’s motion to dismiss, reinstate the petition, and grant
respondent time to serve and file an answer, to be followed by further
proceedings in Supreme Court.



Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
