In this CPLR Article 78 proceeding, petitioner Shalva Palyani ("Mr. Palyani") seeks a judgment compelling the New York State Athletic Commission (the "Commission") to terminate the boxing suspension it imposed against him.

The Commission cross-moves to dismiss the petition as time barred and Mr. Palyani opposes dismissal.

In 2003, Mr. Palyani submitted an application for a boxing license to the Commission, which is "vested with the sole discretion, management, control and jurisdiction" over New York boxing, sparring matches or exhibitions. Pet., at ¶¶ 3, 9; Affirmation in Support of Cross-Motion to Dismiss ("Cross"), at ¶ 4. As part of the application process, he underwent a brain MRI that revealed an "area of focal encephalomalacia * * * consistent with old trauma." Pet., at ¶¶ 10-11; Cross, at ¶¶ 6, 7.

Although Mr. Palyani had never been granted a license to box in New York, in mid- December 2003, the Commission informed him:

"PLEASE TAKE NOTE YOU HAVE BEEN SUSPENDED BY THE NEW [*2]YORK BOXING COMMISSION MEDICAL DEPARTMENT 12/9/2003 INDEFINITE."

Several years later, on October 24, 2006, Mr. Palyani demanded that the Commission remove his suspension. Pet., at ¶ 22. He stressed that he had never been issued a New York boxing license, and argued that the "suspension" was therefore altogether unauthorized. Pet., Ex. E. He further pointed out that a boxing license is only valid for one year, and as such, even if he had been granted a license by the Commission, his " suspension' should have lapsed with the expiration of the license." Pet., Ex. E. Mr. Palyani explained that because "the Commission's action of placing and continuing [him] on suspension' is not authorized by statute or regulation, * * * the Commission has a legal duty to remove [him] from the suspension list, and * * * the Commission is presently acting without jurisdiction." Pet., Ex. E.

By letter dated November 7, 2006, the Commission denied "any and all demands for relief in their entirety." Pet., at ¶ 23; see also, Ex. F.

The Professional Boxing Safety Act of 1996, 15 U.S.C. § 6306(a)(2)(B), requires all members of the Association of Boxing Commissions to adopt any medical suspension issued by another member. Since the Commission is a member of the Association, as are the boxing commissions in every state, Mr. Palyani's name is registered on a national suspension list and he cannot box anywhere in the United States. Pet., at ¶¶ 24, 26.

On December 11, 2006—a little over a month after receiving the Commission's refusal of his demand—Mr. Palyani filed this Article 78 proceeding. He argues that in maintaining his suspension, the Commission is acting in excess of its jurisdiction and in violation of its regulations. Pet., at ¶ 14-15. In particular, Mr. Palyani asserts that the Commission had no authority to suspend him (since it had never issued any license in the first place) and that even if it did "the term for a suspension and license has long since expired." Pet., at ¶¶ 30, 34. 38. Mr. Palyani requests that the Commission "be compelled and/or mandated to perform its administrative, ministerial, and legal duty of terminating [his] suspension and removing [his] name from the national suspension list." Pet., at ¶ 37.

The Commission cross-moves to dismiss the petition as time barred, asserting that an "agency decision that is subject to Article 78 review is final and binding, for statute of limitations purposes" when the aggrieved party is notified. Cross, at ¶¶ 10, 14. Specifically, the Commission contends that Mr. Palyani was " aggrieved' at some point during December 2003, when he received the letter * * * advising him that he was on indefinite medical suspension. Thus, the statute of limitations began to run and expired in the first half of 2004." Id., at ¶ 15.

Mr. Palyani opposes dismissal, emphasizing that he is not challenging the Commission's decision that he was ineligible to box; rather, he is attacking the Commission's authority to maintain his suspension indefinitely despite never having issued any license in [*3]the first place. Affirmation in Opposition (to Cross-Motion) ("Opp."), at ¶¶ 7, 8. In short, Mr. Palyani makes clear that he is not seeking judicial inquiry in the form of certiorari or mandamus to review: he is not seeking analysis of whether the Commission's determination that he was not entitled to a boxing license was an error in judgment or an abuse of discretion. Instead, he is seeking "relief in the form of mandamus to compel and in the form of prohibition," urging that the Commission has a clear legal duty to terminate his suspension and that it is prohibited from maintaining the suspension in excess of its jurisdiction. Id, at ¶ 7. Mr. Palyani argues that the statute of limitations, at the earliest, began to run upon denial of his October 2006 demand that the Commission vacate his suspension.

"A proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner * * * or after the respondent's refusal, upon the demand of the petitioner * * * to perform its duty."

The provision makes clear that the four-month statute of limitations accrues at different points. A petitioner seeking review of a discretionary determination—by way of a proceeding in the nature of certiorari or mandamus to review—must commence the proceeding no later than four months from when the determination "has its impact." See, Matter of Edmead v. McGuire, 67 NY2d 714, 716 (1986); see also, Finger Lakes Racing Assn. v. State of New York Racing and Wagering Board, 34 AD3d 895 (3d Dept. 2006). Accordingly, the aggrieved must take action within four months of notification of the decision under challenge. Matter of Edmead v. McGuire, 67 NY2d, at 716.

One seeking relief in the nature of mandamus to compel—when "the aggrievement does not arise from a final determination but from the refusal of the body or officer to act or to perform a duty enjoined by law"—must make a demand for compliance and "the statute of limitations does not run out until four months after the refusal." Austin v. Board of Higher Educ., 5 NY2d 430, 442 (1959); Schwartz v. Morgenthau, 23 AD3d 231, 233 (1st Dept. 2005), affd. 7 NY3d 427 (2006); Waters v. Dennison, 2007 WL 672526, at * 2 (Sup. Ct. Bronx County, Feb. 23, 2007) (challenge to administrative authority could be made within four months of Department of Corrections' refusal to vacate the five-year period of post-release supervision that it had imposed).

Here, Mr. Palyani is not seeking reversal of the Commission's discretionary determination not to issue a boxing license based on his MRI results. In this Article 78 proceeding, he is not seeking reconsideration of whether he should be granted a license to box in New York nor is he disputing the findings, wisdom or rationality of the Commission's decision. [*4]

Instead, Mr. Palyani is challenging the Commission's authority to suspend him and its power to continue the allegedly unlawful suspension indefinitely. He argues that a clear legal right exists entitling him to the relief demanded and that the Commission should perform its ministerial obligation of lifting the unauthorized suspension. Because Mr. Palyani is not inquiring into the merit of the Commission's decision—whether it was erroneous or an abuse of discretion—but rather is seeking to compel performance of a clear legal obligation based on statutory requirements, this proceeding could be brought within four months of rejection of his demand and is not time barred.^[FN1]

The cases cited by the Commission are readily distinguishable.

In Stevens v. American Water Services, Inc., 32 AD3d 1188, 1190 (4th Dept. 2006), lv. denied 35 AD3d 1295 (4th Dept. 2006), for example, the Appellate Division made plain that statutes established that the respondents, the Water Board and Sewer Authority, "acted within their authority." Although it is clear that the Commission has broad authority with regard to issuance of licenses and regulation of boxing, it has not demonstrated that such power includes the ability to suspend an applicant who has never been issued a license and to continue the suspension in perpetuity.

Other precedent upon which the Commission relies is likewise inapposite. See, DeJesus v. Roberts, 296 AD2d 307, 309 (1st 2002) (proceeding challenging rejection of application on the ground that the determination was "arbitrary and capricious" was time barred; statute of limitations ran from communication of decision to petitioners and was not impacted by their request for reconsideration), lv. denied 99 NY2d 510 (2003); Metropolitan Package Store Assn. v. Duffy, 143 AD2d 832 (2d Dept. 1988) (four-month statute of limitations for review of administrative discretion runs from when petitioner learned of determination), lv. denied 73 NY2d 705 (1989); Matter of De Milio v. Borghard, 55 NY2d 216, 220 (1982) (statute of limitations in proceeding in the nature of mandamus to review, wherein petitioner sought to challenge his discharge as arbitrary and capricious, began to run on the date of dismissal); Berry v. Culross, 90 AD2d 809, 810 (2d Dept. 1982) (denial of "analytically identical" application did not extend four-month statutory period for seeking review of initial decision); Davis v. W. Kingsbury, 30 AD2d 944, 945 (1st Dept. 1968) (challenge to discretionary rating), affd. 27 NY2d 567 (1970).

Because the petition is timely, the Commission's cross-motion to dismiss is denied. Pursuant to CPLR 7804(f), this Court "shall permit" the Commission to serve and file an answer within 30 days of the date printed on this Decision and Order. Mr. Palyani may then reply and shall re-notice the matter for hearing.

Accordingly, it is

ORDERED that the cross-motion to dismiss the petition is denied; and it is further

ORDERED that the Commission shall serve and file an answer within 30 days of the date of this Decision and Order after which time the petitioner may reply and shall re-notice [*5]the matter for hearing.

This constitutes the Decision and Order of the Court.

Dated: New York, New York

April 26, 2007

ENTER:

_________________________

Hon. Eileen Bransten