| Matter of Moskowitz v New York City Police Pension Fund |
| 2011 NY Slip Op 01697 [82 AD3d 473] |
| March 8, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Keith Moskowitz, Appellant, v New York City Police Pension Fund et al., Respondents. |
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Michael A. Cardozo, Corporation Counsel, New York (David R. Priddy of counsel), for respondents.
Order, Supreme Court, New York County (James A. Yates, J.), entered March 31, 2009, as amended by order, same court and Justice, entered August 28, 2009, which denied as untimely the petition seeking to compel respondents to change petitioner's retirement date to July 25, 2006 and grant his pension application, and granted respondents' cross motion to deny the petition and dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
In an article 78 proceeding for mandamus to compel, the four-month statute of limitations runs from the date upon which the respondent agency refuses to act (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430, 441-442 [1959]; see also Ruskin Assoc., LLC v State of N.Y. Div. of Hous. & Community Renewal, 77 AD3d 401, 403 [2010]). By letter dated November 3, 2006, respondents refused to comply with petitioner's demand that his pension be reinstated. Petitioner's commencement of this proceeding on September 9, 2008 was thus untimely. Petitioner's April 2007 request for reconsideration does not toll or revive the statute of limitations (see Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974, 976 [1983], cert denied 469 US 823 [1984]). Concur—Tom, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.