Petitioner Romeo Baloy ("Petitioner" or "Detective Baloy") moves, pursuant to Article 78, to annul and reverse Respondent's determination to not issue him a Pistol License Inquiry Response Form, informally known as a "good guy letter," claiming that the refusal was arbitrary, capricious and an abuse of discretion. Petitioner moves to mandate the issuance of said letter so he may obtain a Retired Police Officer pistol license.

Respondent, Raymond Kelly ("Respondent" or "Commissioner"), the Police Commissioner of New York City, moves to dismiss, pursuant to CPLR §§ 3211(a)(5), 3211(a)(7) and 7804(f), on the grounds that Petitioner is time-barred from commencing this proceeding and Petitioner fails to state a cause of action upon which relief may be granted. For the reasons stated herein, the cross-motion is granted and the petition is denied.

Background

Petitioner is a retired New York City Police Department ("NYPD" or "Department") Officer who was injured in a gunfight on December 15, 2004. After following a narcotics suspect into a Bronx apartment building, Detective Baloy was shot in the right thigh and right hand, but he quickly returned fire and killed the suspect. Baloy's wounds required substantial medical care, causing the NYPD to place him on extended medical leave.

The NYPD awarded Detective Baloy their second highest medal, the Combat Cross, for admirably performing his duties on December 14, 2004. In March, 2005, however, the NYPD Chief Surgeon removed Petitioner's authorization to carry firearms. Subsequently, on July 27, 2006, the day before Detective Baloy retired, he requested that he be issued a good guy letter to enable him to obtain a Retired Police Officer pistol license. [*2]

Upon retiring, Baloy was informed that he was ineligible for the letter because it can reflect only an officer's status at the time of his separation from the NYPD. Respondent's August 22, 2006 letter to Petitioner's wife reiterates this reason for the denial. Nearly three years later, Petitioner brought this article 78 action seeking a reversal of the agency's determination.

Arguments

Petitioner argues that this Article 78 proceeding was commenced timely on July 24, 2009 because (i) Petitioner never received the determination at issue when he retired; and (ii) Petitioner's April 24, 2009 letter from counsel was a separate request for the good guy letter, resulting in a separate determination and a reinitiation of the statute of limitations period. Petitioner also argues that the disapproval of the good guy letter was both arbitrary and capricious and an abuse of discretion, citing other NYPD Officers who initially retired without firearm authorization, but later had these privileges restored.

Respondent, in turn, contends that this Article 78 proceeding is time-barred due to the strict four month statute of limitations period. Additionally, Respondent argues that Petitioner is not entitled to mandamus relief because Detective Baloy has no clear and absolute right to the relief sought.

Discussion

Petitioner's proceeding is time-barred because it was commenced nearly three years after the applicable statute of limitations had run. Petitioner's argument that he never received the determination at issue is not supported by the factual record and his argument that his April 24, 2009 request for the good guy letter reinitiated the statute of limitations is not persuasive.

Good guy letters are issued in accordance with a variety of internal Department procedures and New York City statutes and regulations. Section 10-131 of the New York City Administrative Code allows the Commissioner to grant licenses for carrying pistols within New York City pursuant to § 400 of the Penal law (Administrative Code § 10-131 [a][1]). Penal Law §400.00 provides in pertinent part:

§ 400.00 Licenses to carry, possess, repair, and dispose of firearms

Eligibility. No license shall be issued or renewed except by the licensing officer, and . . . except for an applicant . . . (e) who has not had a license revoked.

Additionally, Section 205-44 of the New York City Police Department Patrol Guide ("Patrol Guide") states that a retiring officer must "[r]eport to Payroll/Police Pension fund . . . to obtain Certificate of Service^[FN1] with medical endorsement."

The Department's internal procedures reflect this statutory framework, as Respondent issues the letters only if the retiring officer is authorized to carry firearms at the time he or she leaves the Department (Exhibit D, Raphael Pineiro letter, dated August 22, 2006).

CPLR § 217 governs Article 78 proceedings, requiring a petitioner to commence a proceeding against a body or officer "within four months after the determination to be reviewed [*3]becomes final and binding upon the petitioner" (CPLR 217 [1]). An agency determination becomes "final and binding" when "the petitioner has received notice of the determination and is aggrieved by it" (Cauldwest Realty Corp. v. City of New York, 160 AD2d 489, 490 [1st Dep't 1990]). Petitioner commenced this proceeding on July 24, 2009, nearly three years after he retired and first received notice of the Department's decision to deny him a good guy letter.

The exact date that Petitioner received notice of this determination need not be decided, because even the most favorable date will still render his action time-barred. Petitioner's July 27, 2006 letter to the Police Department, written the day before he retired, states that he was "informed by Ms. Danielle Camarda, at the Pension Section, that [he] was not eligible to receive a good guy' letter" (Exhibit E, Detective Baloy letter, dated July 27, 2006). The fact that he received no response to this letter is immaterial because he was admittedly already informed of the agency's determination.

Additionally, the Department's Chief of Personnel's August 22, 2006 letter to Petitioner's wife reiterates that Petitioner is ineligible for a retired officer pistol license because he retired without authorization to carry firearms. Petitioner contends that this letter cannot serve as a "final and binding" decision because it was addressed to his wife and did not specifically respond to his request for the Certificate of Service (the good guy letter). However, Petitioner supplies no affidavit stating that he did not receive or read this letter nor is it relevant that it did not specifically address this request. While the letter does not directly speak to Petitioner's request for a good guy letter, it does state that "the License Division would deny [Petitioner's] application for a handgun license" (Exhibit D, Raphael Pineiro letter, dated August 22, 2006). Because it is undisputed that the purpose of the good guy letter is to obtain a handgun license, the Department's determination here effectively renders the failure to specifically address the good guy request as immaterial, since the decision implicitly rejected Petitioner's request. If the license was to be denied, then the good guy letter would be of no use.

Petitioner also argues that his April 24, 2009 letter from counsel to the Department was a separate request for a good guy letter, independent of the request made in his July 27, 2006 letter (Exhibit G, Jerold E. Levine letter, dated April 24, 2009). Consequently, he claims that the May 6, 2009 letter from the Department was not a reiteration of the July, 2006 denial of the good guy letter, but rather a separate determination which could be challenged anew. In other words, Petitioner reads his most recent request as tolling the statute of limitations and providing him with another four month period to challenge the agency determination. Hence, Petitioner claims that this Article 78 suit was commenced timely on July, 24, 2009 because it was filed within four months from the May 6, 2009 "determination."

This argument is unpersuasive. Once a petitioner obtains notice of an agency determination "and is aggrieved by it," the determination becomes final and binding (Cauldwest Realty Corp. v. City of New York, 160 AD2d at 490, supra). At the latest, the determination at issue became final and binding on August 22, 2006, the date of the Department's letter to Petitioner's wife. Additionally, it is well-accepted that inquiries for reconsideration of an agency decision do not expand the relevant statute of limitations period (see Raykowski v. New York City Dep't of Transp., 259 AD2d 367, 367 [1st Dep't 1999]). Petitioner s reading of Raykowski is illogical, as he claims that it bars only a reconsideration of an original determination, not a determination based upon a new demand. This distinction is only applicable, however, had Petitioner never received an original decision. His admission that the Pension Section had informed him he was ineligible for the good guy letter, as well as the Department's letter to his [*4]wife stating he could not receive a pistol license, illustrates that he did in fact receive an initial determination. Thus, his April 24, 2009 request for a good guy letter was merely a call for reconsideration and cannot toll the four month statute of limitations.

This result is necessitated by the purpose of the statute of limitations, as well as the perils of deciding otherwise. If such calls for review of an agency decision could toll the statute, then CPLR § 217 would have no teeth and cases could be prolonged indefinitely. The four month period:

must be deemed to run from the date when the first decisive ruling is made and petitioner cannot, by renewing the application, extend the limitation imposed by the statute. To permit petitioner to extend or toll the statute by mere letter writing, or so-called renewed applications for reconsideration, would be to open the doors to such a practice as would toll the statute ad infinitum, and make an absurdity of the statute. By such indulgence there would never be a final or binding determination (Mallen v. Morton, 199 Misc 805, 811 [Sup Ct, NY County, 1950]).

Consequently, Petitioner's Article 78 proceeding is time-barred, as it was commenced nearly three years after the initial agency determination. Whether the statute of limitations began to run on July 28, 2006, or August 22, 2006, it is clear that the most favorable date still requires Petitioner to have commenced this Article 78 proceeding by December 22, 2006. Because "[a] [s]tatute of [l]imitations is not open to discretionary change by the courts, no matter how compelling the circumstances," Petitioner's commencement of this suit on July 24, 2009 must be time-barred (Arnold v. Mayal Realty Co., 299 NY 57 [1949]). The April 24, 2009 letter to the Department cannot be read as a separate request, as the denial of the Certificate of Service was made final and binding in the summer of 2006. Since the proceeding is time-barred, it is not necessary to address Petitioner's arbitrary and capricious argument.

Conclusion and Order

In light of the determinations above, it is hereby ORDERED that Respondent's cross-motion to dismiss is granted; and it is further

ORDERED and ADJUDGED that the petition is denied and the proceeding dismissed.

This Constitutes the Decision, Order and Judgment of the Court.

Dated: June 28, 2010

ENTER:

____________________

J.S.C