Respondent cross-moves to dismiss the petition as time-barred.^[FN1]

The background allegations were previously set forth in the Court's prior interim decision and order dated May 23, 2014. Petitioner commenced this Article 78 proceeding on January 13, 2014. Respondent purportedly answered the petition on March 5, 2014.

The petition alleges that petitioner applied to, and was accepted into, a master's degree program at respondent Pace University in August 2013. (Petition ¶ 3.) Petitioner claims that she informed respondent "at the time" that she struggled academically in her undergraduate studies because she has scotopic sensitivity syndrome (Id.)

According to petitioner, she began attending classes and was then advised in a letter that she had not been accepted into the master's degree program. Petitioner therefore contends that she was removed from the master's degree program, that her removal was arbitrary and capricious, and that respondent discriminated against her due to her disability and perceived disability, and that respondent failed to reasonably accommodate her disability and perceived disability. (Id. ¶¶ 6, 18.)

Respondent maintains that petitioner was never accepted into the master's program. According to respondent, she was informed that her application was not approved by a letter dated September 5, 2013, which petitioner claims she did not receive until either September 11 or September 12, 2013. ^[FN2] 1

Respondent cross-moves to dismiss the petition as time-barred. Respondent argues that petitioner should have commenced this Article 78 proceeding with four months of September 5, 2013, the date of the letter to [*2]petitioner stating that her application was not approved.

CPLR 217 (1) provides that an Article 78 proceeding "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner." "An administrative determination becomes final and binding' when the petitioner seeking review has been aggrieved by it." (Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000] [citations omitted].) "In circumstances where a party would expect to receive notification of a determination, but has not, the Statute of Limitations begins to run when the party knows, or should have known, that it was aggrieved by the determination." (90-92 Wadsworth Ave. Tenants Assn. v City of NY Dept. of Hous. Preserv. & Dev., 227 AD2d 331, 331-332 [1st Dept 1996].)

Here, the issue of when the four month limitations period began to run is of critical importance. The proceeding was not commenced within four months from the date of the letter. However, the proceeding was commenced within four months of the date that petitioner claimed that she received the letter by email. Irrespective of whether petitioner received the letter by email on September 11 or 12, 2013, the four month limitations period would, in this situation, have run on January 13, 2014 (January 11 and January 12 fell, respectively, on Saturday and Sunday). This proceeding was commenced on January 13, 2014.

The Court of Appeals has rejected the argument that the four month period runs from the date of the determination:

Respondent cites appellate cases that appear to calculate the four month limitations period from the date of the determination. (Matter of Bashir v Environmental Control Bd., 113 AD3d 763 [2d Dept 2014]; Matter of 252 W. 30th St. Realty Corp. v Biderman, 165 AD2d 759 [1st Dept 1990].)

However, this Court does not read these cases as establishing a rule contrary to the Court of Appeals's decision in Matter of Biondo. Assuming the agencies in those cases mailed the determinations to the petitioners on or around the date of the determinations, the date when the petitioners presumably received notice by mail would not have affected the outcome. In Matter of Bashir, the petitioner did not commence the Article 78 proceeding until five months after the date of the determination. In Matter of 252 West 30th Street Realty Corp., the petitioner commenced the Article 78 proceeding more than six months after the date of the determination.

Therefore, contrary to respondent's argument, the four month period of limitations did not start to run as the date its determination was issued. Neither has respondent demonstrated that petitioner received the September 5, 2013 letter more than four months before petitioner commenced this proceeding.

Respondent also assets that petitioner was orally advised that she had not been accepted into the program before petitioner had received the September 5th letter by email on either September 11 or 12.

Where written notice is not required, oral notice of a determination is sufficient to trigger the start of the limitations period. (See Matter of Hill Park Health Care Ctr., Inc. v Novello, 12 AD3d 1010, 1012 [3d Dept 2004] [Department of Health's oral order should have been sufficient to put petitioner on notice that it clearly viewed petitioner's actions as a final discontinuance of the facility's operations].) However, respondent has not demonstrated that petitioner was orally advised that her application to the master's program was denied.

It appears that respondent asserts that petitioner was orally advised on [*4]the first evening of classes on September 9, 2013. Respondent does not submit an affidavit from the person who purportedly advised her orally that she had not been accepted. Meanwhile, David Cohen, a Senior Graduate Admissions Counsel states, "On September 12, 2013, I received a call from Ms. Barad. She informed me that she went to the first TEAM class, on what would have been the previous Monday evening (September 9) and that the professor told her that she was not on the class roster." (Cohen Aff. ¶ 5.)

Such a statement, even if proven to have been made to petitioner, is not a statement that petitioner's application to the master's program was denied. At most, the purported statement is ambiguous, and "for the purposes of the commencement of the statutory period, the petitioner cannot be said to be aggrieved by the mere issuance of a determination when the agency itself has created an ambiguity as to whether or not the determination was intended to be final." (Matter of Biondo, 60 NY2d at 834.)

Therefore, the branch of respondent's cross motion to dismiss the petition as time-barred is denied.

The branch of respondent's cross motion to dismiss the petition on the ground of untimely service of the pleadings is denied as academic. By interim decision and order dated May 23, 2014, petitioner was granted, nunc pro tunc, an extension of time to effect service of process, and the pleadings were deemed timely served.

Accordingly, it is hereby

ORDERED that the respondent's cross motion to dismiss the petition is denied.