Burkart v. Board of Fire Commissioners of East Meadow Fire District

Mario Pittoni, J.

Motion to dismiss the petition in a proceeding under article 78 of the Civil Practice Act on the ground of untimeliness is denied.

On May 17, 1960, the petitioner was suspended as a volunteer fireman by the respondent. A proceeding to annul the order of suspension was commenced on August 10, 1960. Mr. Justice Ritchie, on October 5, 1960, dismissed the petition ‘ ‘ with leave to renew”. The instant proceeding was commenced on October 12, 1960.

While more than four months has elapsed since the order of suspension, no objection was made by the respondent to the order of Mr. Justice Ritchie granting leave to renew. In view of that fact, plus the authorization provided by section 1300 of the Civil Practice Act to dismiss, with the privilege of renewal, the four months’ limitation of time referred to in section 1286 of the Civil Practice Act does not bar the present proceeding.

Moreover, since the new petition is in substance merely an amendment of the prior petition the Statute of Limitations is inapplicable (Matter of McDermott v. Johnson, 1 Misc 2d 55; Donohue v. McGovern, 114 N. Y. S. 2d 581).

The answer shall be served and the proceeding renoticed, as provided in section 1293 of the Civil Practice Act.