MATTER OF EDMEAD v. McGUIRE

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

We agree with the Appellate Division that the determination of the Board of Trustees became "final and binding" (CPLR 217) and, therefore, that the four-month limitation period commenced to run, on the date petitioner was notified of the Board's decision. A challenged determination is final and binding when it "has its impact" upon the petitioner who is thereby aggrieved (Mundy v Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 357; see also, Matter of Biondo v State Bd. of Parole, 60 N.Y.2d 832, 834; Matter of Martin v Ronan, 44 N.Y.2d 374, 380-381; Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 41 N.Y.2d 926). The limitations period does not commence to run where the agency has created the impression that the determination, albeit issued, was intended to be nonconclusive (see, Mundy v Nassau County Civ. Serv. Commn., supra, p 358; Matter of Castaways Motel v Schuyler, 24 N.Y.2d 120, 126). However, where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified (see, Matter of Biondo v State Bd. of Parole, supra, p 834). Contrary to petitioner's contention, the time limitation is not somehow tolled until the action directed by the determination has already been taken (Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., supra; see also, Matter of Allstate Ins. Co. v Stewart, 29 N.Y.2d 925, affg 36 A.D.2d 811).

Here, although petitioner's actual retirement was delayed until October 27, 1982 when his terminal leave was exhausted, the impact of the determination on the date of its issuance and petitioner's notification thereof, September 8, 1982, was in no way rendered tentative, uncertain or otherwise less final and binding. Consequently, the statutory period commenced on September 8, 1982, and the proceeding, commenced more than five months later, on February 18, 1983, was correctly dismissed by the Appellate Division as untimely.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.