Covington v. Fischer, 125 A.D.3d 1320 (N.Y. App. Div. 2015). · Go Syfert
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Covington v. Fischer, 125 A.D.3d 1320 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
2 citation events across 1 distinct court.
Strongest positive: Baker v. Eastern Niagara Hosp., Inc. (nyappdiv, 2023-06-09)
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discussed Cited as authority (rule) Baker v. Eastern Niagara Hosp., Inc.
N.Y. App. Div. · 2023 · confidence medium
Inasmuch as defendants failed to establish that decedent was or should have been aware [*2]of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied ( see generally Matter of Covington v Fischer , 125 AD3d 1320, 1320 [4th Dept 2015]; Lazic v Currier , 69 AD3d 1213, 1214 [3d Dept 2010]; Matter of Edwards v Coughlin , 191 AD2d 1044, 1044-1045 [4th Dept 1993]).
discussed Cited as authority (rule) Matter of Kirsch v. Board of Educ. of Williamsville Cent. Sch. Dist.
N.Y. App. Div. · 2017 · confidence medium
Even assuming, arguendo, that respondents preserved for our review their further contention that the proceeding is barred by the statute of limitations (cf. Matter of Troy Sand & Gravel Co. v New York State Dept. of Transp., 277 AD2d 782 , 783-784 [2000], lv denied 96 NY2d 708 [2001]), we conclude that respondents failed to meet their burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced (see CPLR 217 [1]; Matter of Covington v Fischer, 125 AD3d 1320, 1320 [2015]; Matter of Advoc…
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In the Matter of Ronnie Covington
v.
Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Feb 6, 2015.
125 A.D.3d 1320
Cited by 2 opinions  |  Published

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered June 6, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.

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

Memorandum: Supreme Court erred in granting respondent’s motion to dismiss the CPLR article 78 petition as time-barred (see CPLR 3211 [a] [5]). The applicable four-month statute of limitations pursuant to CPLR 217 did not begin to run until petitioner “received notice of the final administrative determination” (Matter of Jackson v Fischer, 67 AD3d 1207, 1208 [2009]; see Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]), and respondent failed to meet his burden of establishing that petitioner received such notice more than four months before commencing the instant proceeding (see Jackson, 67 AD3d at 1208; Matter of Chrysler v Goord, 49 AD3d 1342, 1343 [2008]). Present — Scudder, P.J., Fahey, Peradotto, Carni and Whalen, JJ.