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Filing of Article 78 Petition Itself Constituted a Demand that Respondent Perform Its Duty, the Triggering Event for the Four-Month Statute of Limitations in a Mandamus to Compel Proceeding/Supreme Court and Surrogate’s Court Have Concurrent Jurisdiction Over the Administration of an Estate

The Second Department noted that Supreme Court and Surrogate’s Court have concurrent jurisdiction over the administration of a decedent’s estate. The petitioner commenced the Article 78 proceeding to compel the NYC Employees’ Retirement System (NYCERS) to accept a designation of a beneficiary form.  Surrogate’s Court had declined to exercise jurisdiction over the proceeding. The Second Department explained that the filing of the petition itself triggered the four-month statute of limitations for mandamus, so the proceeding was timely:

In a proceeding in the nature of mandamus to compel, the four-month statute of limitations begins to run “after the respondent’s refusal, upon the demand of the petitioner . . . to perform its duty” (CPLR 217[1]…). The filing of a CPLR article 78 petition can itself be construed as a demand … . Here, the petitioner made her demand that NYCERS perform its duty to accept her late husband’s fully completed and notarized designation of beneficiary form by filing the petition in this proceeding … . Accordingly, the petition is not time-barred … . Matter of Gopaul v NYC Employees’ Retirement Sys, 2014 NY Slip Op 0802-0, 2nd Dept 11-19-14

 

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