When seeking relief in the nature of mandamus, the individual must make the demand and await the agency's refusal before filing an Article 78 petition

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency's refusal before filing an Article 78 petitionDonoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well. Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department's motion to dismiss her petition, the Appellate Division reversed the lower court ruling "on the law and in the exercise of discretion." And reinstated the petition. Nor, said the court, is Donoghue's appeal "moot," since Donoghue has not obtained all of the relief she sought. The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act. The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request. Addressing the question "Is Donoghue's action barred by the statute of limitations?"– the Appellate Division said that Donoghue's Article 78 petition was in the nature of a prayer for "mandamus relief." In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run "until the refusal" is served on the individual or his or her attorney.* Thus, said the court, "[i]f there is no refusal, the limitations period does not begin to run." Considering another procedural issue, the Appellate Division noted that Donohue's request was not made within the four-months required. However the court, in an "exercise" of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer 'can be construed as the necessary demand and refusal' [Donoghue's] pre-petition demand should not be deemed untimely." * As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168]. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm

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