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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118189
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Led an article 78 petition, and did not know I had to serve

Customer Question

led an article 78 petition, and did not know I had to serve the notice within 15 days, and thus the petition was dismissed, 15 days ago, and now the respondents are seeking to an order from the judge to dissmiss
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: Niagara falls NY
JA: Has anything been filed or reported?
Customer: I filed the Petition timely, and did not know about the 15 days to serve the respondents, the notice of petition, it is on this ground that the petition was dismissed, 15 days ago, and now the respondents are seeking to an order from the judge to dismiss the Petition in its entirety.
JA: Anything else you want the lawyer to know before I connect you?
Customer: does the 15 days that I have to refile the article 78 Petitioner, start from the court date where the judge dismissed the Petition on April 26; or will the 15 days start upon the courts ruling to dismiss the Petitioner in its entirety today; today when the next court appearance is set?.
Submitted: 4 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, the failure to follow the very specific Article 78 guidelines is fatal to a case. If you did not serve them in time for good cause, other than you did not know, then you can ask the court for leave for the out of time service for good cause. Otherwise, your time to refile is 15 days from when the court dismissed the petition.
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Customer: replied 4 months ago.
As pertains to a free follow-up question I would appreciate it if you can answer the first question please.Perhaps you did not completely comprehend the first question, thus I will elaborate in order to clarify the original question.On April 26 2017 the judge orally dismissed my petition citing a failure to serve the respondent within 15 days after the original filing of the petition and acquiring an index number . Note my question does not pertain to this 15-day statue of limitation.
I am referring to the 15- days for refiling and service subsequent to a petition dismissal based on improper service.So again on April 26th the judge orally dismissed my petition.
Subsequently on May 12th the respondents submitted a request to the presiding judge seeking the judge's signature on an order stating :
After due deliberation it is hereby ordered and adjudicated that the respondent's motion to dismiss is hereby granted and it is further ordered and adjudicated that the petition is denied and dismissed in its entirety .Please keep in mind that these are two distinct 15-day statute of limitation periods and I am here in referring to the 15-day time period subsequent to the oral dismissal on April 26 and or the date of the respondents request on May 12th for the judge to issue a signed order stating :
It is hereby ordered and adjudicated that the petition is denied and dismissed in its entirety .The question is did the statue of limitations for refiling the petition start to run on April 26th when the presiding judge orally stated the petition was dismissed.
Or will the 15 days start to accrue when the judge has signed the request by the respondents to dismiss and deny the petition in its entirety on May 12th?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
The order was effective when the judge issued the oral order April 26, that is when the time began to run.
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Customer: replied 4 months ago.
As to your answer that the oral dismisal on April 26th would have started the 15-day statue of limitations as opposed to the May 12th date; can you briefly ( or at least acknowledge a recognition of the two distinct dates and purpose of the distinction ) explain why the respondents would have submitted a request to the judge on the date of May 12th asking for an order stating: ""UPON DUE DELIBERATION; IT IS HEREBY ORDERED AND ADJUDGED THAT THE PETITION IS DENIED AND DISMISSED IN ITS ENTIRETY".In addition I know that there are certain rights that the plaintiff has as well as defendants that the judge is required by law to inform them of. Can you tell me if it was an obligation of this judge at the time of dismissing the petition on the grounds of improper service to inform me that I had the right two refile the petition in 15 days ?And finally can you refer me to where I can find this specific law under the Civil practice rules and procedures or maybe Judiciary law executive law xcetera.Thank you for your time and consideration and prompt response to this matter
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply.

The written order is a confirmation of the order issued on April 26, it is not a new order in the case. If you were informed of the dismissal in court on the record on April 26, then you had notice. The Plaintiff and Defendant in a suit are entitled to notice of any decision. Notice of a decision can be oral on the record in court (taken into the minutes by court reporter) or in writing with an order signed by the judge. If a party in a case gets verbal notice in a court proceeding on the record, then that order is binding from when the judge issues it.

The judge does not have to inform either party of the rules about filing or time to refile unless he is entering an order enlarging the time to file. When parties represent themselves in court, they are imputed with the knowledge of the rules of evidence, civil procedure and rules of court and the judge actually has no duty to explain them to a pro se party.

Customer: replied 4 months ago.
finally can you refer me to where I can find this specific law under the Civil practice rules and procedures or maybe Judiciary law executive law etc.?
Expert:  Law Educator, Esq. replied 4 months ago.

The basic rules covering these procedures are found in the Civil Practice L aw and Rules (CPL R for short), Sections 2219 and 2220, and in Volume 22 of the New York Code Rules and Regulations (22 NYCRR for short), Rule 202.4P. In drawing a proposed order , it is especially important to follow CPLR 2219 requirements that the proposed order “state the court ... the place and date of the signature, recite the paper s used on the motion and give the determination or directive in such detail as the judge deems proper.”

What matters would be the words used by the judge when he said he was dismissing the case in court. If the judge stated he was ordering the case dismissed and then said that he was instructing the parties to submit written order, then the date would begin when the written order is signed by the judge. If the judge said simply your case was dismissed it was effective April 26 when he issued it. See: Funk v. Barry, 89 NY2d 364.

Customer: replied 4 months ago.
The question is does the fact that a person is disabled affect the statue of limitations as pertains to filing lawsuits specifically a lawsuit involving an article 78 proceeding ;and the 15 days for re-filingling the lawsuit after the case was dismissed for improper service is there a extension on the statue of limitations in the law that would extend the 15-day refiling time Period as pertains to the statue of limitations?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
NO, a disabled person is treated the same under the rules as a person who is not disabled. So a disabled person is not given any more time than anyone else.
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Customer: replied 4 months ago.
Are there any types of lawsuits that are affected as pertains to the statute of limitations and a person being disabled? disabled
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
No, disabled people are not treated differently under the law, to do so (even if it is giving them more time) would be discrimination. The only exception providing discretionary extension of the statute of limitations is where a person is so mentally or physically disabled that they cannot know they have a cause of action and physically cannot act on it because of their condition AND THEN IT IS DISCRETIONARY TO THE JUDGE based on medical proof. This generally requires someone to be pretty much 100% physically incapacitated or mentally incapacitated and does not happen often.
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Customer: replied 4 months ago.
What about for a minor child how do the statues of limitations effect the rights of a minor child who has a lawsuit filed by their Guardian ?
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply.

Now we are going in a direction that is different than the original scope of your question, but if a guardian exercises a minor's right before they reach the age of majority, then there is no issue with the statute of limitations.

Some torts, such as sexual abuse civil suits, do not begin the statute of limitations until the minor reaches the age of majority, but some other tort claims such as negligence do not provide for such extensions of time.

Customer: replied 4 months ago.
As regards ***** ***** that treating someone ( as a disabled person) differently under the law " to do so would be discrimination": then can you tell me whom exactly is Article 2 section 10 subdivision 5 of the CTC New York state law referring to as pertains to the two-year extension for filing a claim for a person "under a legal disability" in respect to the statue of limitations?
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply.

Gladly, "Legal disability" is a disability preventing a person from acting such as being adjudicated as a mental incompetent placed under guardianship, in some cases age of minority is a legal disability, also if someone is incarcerated, that is a legal disability. They are disabilities on a person imposed by law, it is not a handicap disability that most people think of normally.

Customer: replied 4 months ago.
Okay so if the statue of limitations has expired and I cannot sue for damages is there any way that I can sue a New York state agency for compiling and maintaining information on a data subject that is false and inaccurate?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
If they have false information, you have to first give them notice to remove the information and your intent to sue. If they fail to remove the false information, you can then sue them for defamation/libel for giving the false information to others or making it available to others.
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Customer: replied 4 months ago.
Perhaps I should ask what is the remedy for a state agency maintaining information on a data on a data subject that is false and inaccurate.
And if such records were made through criminal tampering what can be done about this outside of the statue of limitations for filing a lawsuit?
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply.

The only thing that can be done outside the statute of limitations is complaining to the director of the agency who maintains the false records and provide them proof the records are false or inaccurate.

Customer: replied 4 months ago.
If they have false information, you have to first give them notice to remove the information and your intent to sue. If they fail to remove the false information, you can then sue them for defamation/libel for giving the false information to others or making it available to others.As your answer listed above is it the case that I can sue them in a lawsuit after giving them notice of the intent to do so if they refuse to remove the reference false and inaccurate data even after the statue of limitations has expired?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
If you are within the statute of limitations you could sue them, YES, but if the statute of limitations expired, as I also said above you can only complain through the director of the agency that has the known false records.
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Customer: replied 4 months ago.
What type of federal lawsuit if at all possible can I bring against a state agency for maintaining and inaccurate records and is there a statue of limitations for federal lawsuits ?
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply.
There is no way for you to circumvent the statute of limitations on this I am afraid. The federal courts have little control over state agencies based on sovereignty of state governments AND even if they did they borrow the state statutes of limitations. So if the state SOL is expired, no federal suit.

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Customer: replied 4 months ago.
Is this the same for civil rights violations in the case of state New York state agency violating civil rights and maintaining false information and circulating the same in Acts defamation is there no remedy in federal courts for the violation of such rights of individuals, and the defamation of character resulting in injury in such an agency maintaining false and inaccurate records records which were criminally tampered with and altered?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
If there is an actual civil rights violation, then there is a statute of limitations of 3 years from date of discovery, which is the statute of limitations for personal injury or damage to property cases.
Again, even for civil rights violations, you have to have followed the notification requirements in NY for suing a government entity and the federal court will even enforce those rules if not followed.
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Customer: replied 4 months ago.
what is the statute of limitations for defamation of character New York State and for federal lawsuit ?
Expert:  Law Educator, Esq. replied 4 months ago.

Thank you for your reply. Again, we are off on a totally different aspect of your situation other than what your original post indicated, I have been working with you for 10 days and I am not a site employee so I get nothing for my time and this is the reason the site rules state that new topics have to be posted in new questions, so the experts can receive proper credit for their time.

Defamation is NOT a federal claim, but the statute of limitations is 1 year from when the comment is made.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

Customer: replied 4 months ago.
what about libel is there a lawsuit I can bring in federal courts for libel it's not desolation?
Customer: replied 4 months ago.
Not desolation desolation can I bring a federal lawsuit for libel and is there a statute of limitations time limit?And isn't the maintenance of false and inaccurate records a continuous without statute of limitations that would be applicable as it is continuous as pertains to libel and defamation?
Expert:  Law Educator, Esq. replied 4 months ago.

Libel is the same as defamation, it is just the written form of defamation.

Again I told you the recourse of the removal of the incorrect information if you have missed the statute of limitations, it is proving it to the director of the agency and seeking removal through the director. As far as it being continuous, your statute of limitations begins to run from the date they release known false information to a third party. SO if they are not releasing it to anyone your statute of limitations has not started. So if you missed your article 78 and you notify the director of the agency the information he has in his agency records is false and provide him actual proof it is false more than just your statement that it is false THEN if he releases it to a third party, your statute of limitations runs from that date forward for 1 year. You have to then go through the proper serving notice on the government entity and filing your suit in accordance with those rules on suing a government entity and within the time period prescribed.