Board of Education v. State Education Department

Levine, J.,

concurs in part and dissents in part in the following memorandum. Levine, J. (concurring in part and dissenting in part). In my view, petitioner’s CPLR article 78 proceeding is barred by the four-month Statute of Limitations (CPLR 217). The underlying controversy is over recoupment of State aid payments made to petitioner on account of resource room programs conducted at petitioner’s facilities during the 1976-1977 school year by respondent Board of Cooperative Educational Services (BOCES). In 1979, respondent Comptroller announced that, in auditing BOCES funding and expenditures, the applicable statutory authorization for such BOCES programs at individual school district facilities (and State aid payment therefor) (Education Law §§ 1950, 1951) would be interpreted to require the substantial sharing of use of any such facility by BOCES students from districts other than the district providing the facility. Hence, the Comptroller would disallow any such State aid payments unless there had been such substantial sharing. In this initial announcement, however, the Comptroller indicated that his ruling would not be applied retroactively. However, in a 1983 audit of BOCES payments for programs using petitioner’s and other local school district facilities for the 1975-1977 school years, various payments were tentatively disallowed because there was only token interdistrict sharing. In a letter to BOCES dated November 29, 1983, respondent State Education Department (the Department) indicated the total amount disallowed in BOCES payments to all affected school districts for the period in question, and set forth a specific amount of reduction for each such district, including petitioner’s. The Comptroller’s audit report was passed on from the Department to BOCES and to petitioner. Petitioner duly protested the audit report to the Department and the Comptroller’s office on the basis that it conflicted with the prior announcement that the substantial sharing requirement would not be applied retroactively.

After several exchanges of correspondence among the various authorities, a letter was sent by the Department to BOCES, dated December 27, 1983, stating in substance that petitioner’s protest had been considered, but that unless new information concerning the sharing of facilities for the years in question was forthcoming, the Comptroller’s audit disallowance would prevail. The letter also advised that BOCES and the affected districts were not precluded from challenging the Comptroller’s determination.

Petitioner has not denied receiving prompt notification of the Department’s letter of December 27, 1983, nor of the Comptroller’s earlier letter of October 31, 1983, flatly advising that the disallowance would be put into effect. These notifications were unequivocal in informing petitioner that a final, binding determination had been made to disallow the previous payment to petitioner by BOCES for the program using petitioner’s facility during the period in question, and that recoupment thereof would be made by a corresponding deduction from current State aid. Under a long line of precedent, such notice by the appropriate State agency of disallowance of otherwise recoverable charges or expenses and recoupment thereof is sufficient to trigger the Statute of Limitations for commencement of judicial review proceedings, without awaiting the actual receipt of a check reflecting the disallowed amount (Solnick v Whalen, 49 NY2d 224, 228-229; Matter of Cabrini Med. Center v Axelrod, 107 AD2d 965, 966; Park Shore Manor Health Related Facility v Axelrod, 85 AD2d 873).

I am unpersuaded by petitioner’s countervailing argument that, until it received notification in June 1984 of its State aid payment adjusted to reflect recoupment of the disallowed amount of some $89,000, there was no final determination subject to challenge. The same amount disallowed is set forth in the Comptroller’s letter to BOCES of November 29, 1983, a copy of which is also attached to petitioner’s petition; and, in any event, the challenge here does not concern the validity of the Comptroller’s determination of the amount disallowed, but solely his allegedly retroactive application of the substantial sharing requirement to impose the disallowance. Nor does the fact that in the Department’s letter of December 27, 1983, petitioner was advised of its right to submit additional data or to challenge the Comptroller’s decision, postpone the commencement of the limitation period. At most, this merely expressed the right of the State agency to reconsider its determination. Such is not sufficient to render an otherwise final determination nonfinal (Matter of Filut v New York State Educ. Dept., 91 AD2d 722, 723, lv denied 58 NY2d 609; Matter of Seidner v Town of Colonie, 79 AD2d 751, 752, affd 55 NY2d 613). Consequently, petitioner’s commencement of this proceeding, some nine months after the Comptroller’s determination and some eight months after that of the Department, was time barred, and Special Term’s dismissal of the petition should be affirmed.