Summary
In Anonymous v. State Dep't of Health, 173 A.D.2d 988, 989, 569 N.Y.S.2d 500 (3d Dept. 1991), the Third Department found that Public Health Law § 230 (10) (k) expressly authorized "the issuance of subpoenas in professional misconduct hearings".
Summary of this case from N.Y. State Police Investigators Ass'n v. StateOpinion
May 9, 1991
Appeal from the Supreme Court, Albany County (McDermott, J.).
In their complaint, plaintiffs allege that defendants' seizure of cigarettes under the authority of Tax Law § 1846 was unconstitutional insofar as the cigarettes were Indian property and therefore protected from tax under US Constitution, article I, § 8. Such a challenge was not to the constitutionality of the statute itself but rather was "an attack on another kind of governmental act * * * mounted in constitutional terms" (SJI Realty Corp. v City of Poughkeepsie, 133 A.D.2d 682, 683; see, Matter of Overhill Bldg. Co. v Delany, 28 N.Y.2d 449, 458). As such, Supreme Court properly determined that the four-month Statute of Limitations applicable to CPLR article 78 proceedings governed the case (CPLR 217; see, Solnick v Whalen, 49 N.Y.2d 224). Given that the seizure took place on February 25, 1988 and suit was not commenced until January 1989, the action was properly dismissed as time barred.
Order affirmed, without costs. Mahoney, P.J., Casey, Weiss, Yesawich, Jr. and Harvey, JJ., concur.