Fiedelman v. New York State Department of Health , 451 N.Y.S.2d 386 ( 1982 )

— Judgment, Supreme Court, New York County (Klein, J.), entered September 23, 1981 dismissing petitioner-appellant’s CPLR article 78 proceeding as time barred, reversed, on the law, without costs or disbursements, the motion to dismiss denied, and the petition reinstated. The facts have been fairly stated in the dissenting opinion. So has the question presented — whether CPLR 2103 is available to extend the 60-day period of limitations for three days because the order triggering the running of the 60-day period was served by mail. We agree also that the applicability of the three-day extension depends op. whether the commissioner’s triggering order was “in a pending action”. We disagree with the restrictiveness of the dissent’s apparent holding that a “pending action” must necessarily be a “judicial action”. We disagree with the pivotal finding of Special Term that CPLR 2103 does not apply to papers served by an administrative agency. The holdings of both the dissent and Special Term are in conflict with prior rulings of this court which we find controlling. In Weingarten v Cohen (275 App Div 253, affd 300 NY 528), the paper was served by an administrative agency and no judicial action was pending. This court added three days to a six-month period of limitations because the triggering workers’ compensation order was served by mail (see, also, Matter of Bolton v City of New York, 264 App Div 964; Matter of Adams v Atlanta Constr. Co., 198 App Div 430). So, too, in Matter of R.E. Assoc, v McGoldrick (278 App Div 347), the paper was served by an administrative agency and no judicial action was pending. This court added three days to a 30-day period of limitations because the triggering State Rent Administrator’s order was served by mail. The dissent would free itself of the constraint of these cases by observing that they were governed by the Civil Practice Act which unlike CPLR 2103 (subd [b]) did not limit the extension of three additional days for mailing to “a pending action”. It is true that section 163 of the Civil Practice Act did not use those exact words, but it did restrict its applicability to papers “required to be served in an action” (see L 1920, ch 925, art 18, § 163). We view this change from “required to be served in an action” to “in a pending action” to be a difference without a distinction. It was so regarded by the draftsmen of the CPLR who reported to the Legislature that section 163 of the Civil Practice Act was “substantially unchanged” (Sixth Report to the Legislature by the Senate Finance Committee Relative to Revision of the Civil Practice Act, NY Legis Doc, 1962, No. 8, p 203). Concur — Murphy, P. J., Kupferman and Lynch, JJ.