Gaines v. Abate

Judgment, Supreme Court, New York County (Joan Lobis, J.), entered January 19, 1994, which dismissed petitioner’s CPLR article 78 petition seeking to compel respondents to apply Military Law § 243 to the determination of his seniority for the purposes of increasing his compensation, unanimously affirmed, without costs. The IAS Court correctly dismissed the petition as time-barred under CPLR 217 because the action was not commenced within four months after petitioner’s previous demands for the relief requested in the petition were rejected by respondents. Since petitioner previously sought the relief requested in the petition, there is no merit to his argument that his petition constitutes a first demand for limitations purposes. In any event, even if the petition were not time-barred, it fails to state a cause of action (Mulligan v City of New York, 194 Misc 579, 17 affd 275 App Div 795, affd 300 NY 541). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.