Opinion
April 2, 1973
In a proceeding pursuant to article 78 of the CPLR to review a determination of the respondent Board of Standards and Appeals granting a variance to intervenor Acme Land Corp., (1) the latter appeals, as limited by its notice of appeal and its brief, from so much of an order of the Supreme Court, Richmond County, dated May 4, 1972, as annulled the determination and awarded costs against said intervenor and (2) certain parties who sought to intervene as petitioners, Frank Ricciardi and others, cross-appeal from so much of the order as denied their motion to intervene. Case remanded to Special Term for the making of a finding as to (1) the date the decision of the Board of Standards and Appeals was filed in said board's office and (2) when, in fact, said board's decision was made available to the public, through its bulletin; and appeals held in abeyance in the interim. Subdivision a of section 668e-1.0 of the Administrative Code of the City of New York provides that certiorari petitions "must be presented to a justice of the supreme court * * * within thirty days after the filing of the decision in the office of the board, or its publication in the bulletin." That provision has been properly construed to mean within thirty days of filing or publication, whichever is earlier ( Matter of City of New York v. Lincoln Plaza Assoc., N.Y.L.J., April 25, 1969, p. 16, col. 2, affd. 33 A.D.2d 895). This time limitation, contained in the statute which provides for the review, is substantive and jurisdictional and may be raised at any time ( Gatti Paper Stock Corp. v. Erie R.R. Co., 247 App. Div. 45, affd. 272 N.Y. 535; Fairclough v. Southern Pacific Co., 171 App. Div. 496, affd. 219 N.Y. 657), even for the first time on appeal ( Antalek v. Elliott, 26 A.D.2d 716; Marony v. Applegate, 266 App. Div. 412; Matter of Deile v. Boettger, 250 App. Div. 633). In the case at bar, the board's resolutions granting the variance were adopted on November 14, 1967. It is not clear, however, when the board's decision was filed in its office. The decision of the board was included in the bulletin of the board dated November 23, 1967, but it is alleged in the petition that the bulletin was not made available to the public until November 27, 1967. Since the petition to review the board's decision is dated December 27, 1967, it becomes crucial, in view of subdivision a of section 668e-1.0 of the Administrative Code of the City of New York to determine the precise date when the board's decision was filed and the date it was published in the bulletin. Rabin, P.J., Hopkins, Munder, Latham and Shapiro, JJ., concur.