I am in complete accord with the reasoning of Mr. Justice Shapiro that the instant CPLR article 78 proceeding cannot be converted into a declaratory judgment action in order to avoid the strictures of the four-month Statute of Limitations (CPLR 217). I am also in accord with his conclusion that the instant article 78 proceeding was timely commenced, but I disagree with the reasons advanced for that conclusion.
Petitioner was informed on September 23, 1977, by written notice, that he failed the physical examination for police officer due to “defective color vision”. He did not effectively commence this article 78 proceeding until January 24, 1978, four months and a day after petitioner received written notice that he failed the test.
Mr. Justice Shapiro holds that subdivision 4 of section 50 of *640the Civil Service Law mandates that the petitioner be given written notice of his right to make an explanation and submit facts in opposition to such disqualification and that since petitioner was never advised in writing of those rights, the four-month limitation period never started running. I disagree with this particular interpretation of the statute.
Subdivision 4 of section 50 of the Civil Service Law (entitled "Disqualification of applicants or eligibles”) states, in pertinent part: "The state civil service department and municipal commission may refuse * * * after examination to certify an eligible * * * (b) who is found to have a physical * * * disability which renders him unfit for the performance of the duties of the position in which he seeks employment, or which may reasonably be expected to render him unfit to continue to perform the duties of such position * * * No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”
The statute as drafted provides that no disqualification based on physical disability can be made unless the person has been (1) given a written statement of the reasons therefor (which was effectuated here) and (2) given an opportunity (but not notice of such) to make an explanation or to submit facts in opposition to the disqualification.
Moreover, apart from the fact that the language of the statute does not clearly support the interpretation given to it by Mr. Justice Shapiro, such an interpretation is not even necessary to avoid the four-month Statute of Limitations.
The four-month period within which an article 78 proceeding to review a determination by ah administrative body or officer can be instituted begins only after that determination becomes final. However, "[w]here the body or officer is expressly authorized (or, a fortiori, required) by statute to rehear the matter upon petitioner’s application, no proceeding to review may be commenced, and, as a consequence, the limitation period does not run, unless a rehearing has been granted or denied, or until the time for procuring a rehearing has elapsed” (Matter of Davis v Kingsbury, 27 NY2d 567, 569; see, also, CPLR 7801; cf. Matter of New York Cent. R. R. Co. v Public Serv. Comm., 238 NY 132, 135-137 [construing Civ Prac Act, § 1286, subd 3; § 1288]).
By providing that no disqualification take effect until the *641applicant is given an opportunity to submit facts in opposition to the proposed disqualification, subdivision 4 of section 50 of the Civil Service Law clearly mandates that the Civil Service Commission herein must rehear the matter upon petitioner’s application. Since no time limit is stated in the statute for requesting such a rehearing, a reasonable time will be inferred (see Matter of New York Cent. R. R. Co. v Public Serv. Comm., supra).
The letter from petitioner’s attorney to the commission was dated November 15, 1977, less than two months after the initial notice of disqualification, and cannot be considered as untimely.
Although the letter of petitioner’s attorney dated November 15, 1977 does not specifically ask for a rehearing, its tone and tenor reflect a desire by petitioner to submit facts in opposition to the proposed disqualification. Specifically, it is alleged in the letter that subsequent to September 23, 1977 petitioner was examined by two ophthalmologists who found that he was not color blind. The letter also asks the Nassau County Civil Service Commission to accept the findings of the two ophthalmologists so that petitioner can be accepted for police duty.
Under these circumstances, the commissioner’s letter of November 21, 1977, wherein petitioner’s attorney was advised that the test which was administered to petitioner is the sole arbiter of color blindness, was the starting point for the running of the four-month Statute of Limitations. Since this proceeding was commenced on January 24,1978, it was timely commenced.