Mandamus requires refusal.

Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425 (App. Div. 1st 2011)

Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act (see CPLR 7801; 7803[1]). On March 6, 2009, petitioner asked respondent New York City Department of Education (DOE) to retroactively grant her tenure in earth science, but DOE failed to act on her request.

Nor is this proceeding, which was commenced on April 6, 2009, barred by the statute of limitations. "In a proceeding for mandamus relief, it is necessary to make a demand and await a refusal, and the limitations period does not commence until the refusal" (Adams v City of New York, 271 AD2d 341, 341-342 [2000]). If there is no refusal, the limitations period does not begin to run (see id. at 342). Even if, arguendo, the clock began to run on March 6, 2009, petitioner brought the instant proceeding well within the four-month deadline set forth in CPLR 217(1).

It is true that petitioner's March 6, 2009 request was made more than four months after October 28, 2008. However, we exercise our discretion (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]) and determine that this proceeding is not barred by laches. If a petition and answer "can be construed as the necessary demand and refusal" (Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 557-558 [2008]), petitioner's pre-petition demand should not be deemed untimely.

We remand to permit respondents to answer (see CPLR 7804[f]; Matter of Nassau [*2]BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]).

 

The bold is mine.

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