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Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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