Summary
Zoning Board of Appeals was not barred by equitable estoppel from relying on a statute of limitations defense even though the petitioner asserted that neither he, nor his lawyer, ever received, in the mail, the zoning variance decision that triggered the 30-day filing deadline to seek Article 78 review; it was incumbent upon petitioners to diligently inquire as to the status of the decision after submitting the variance application
Summary of this case from Mobley v. CraneOpinion
Argued February 22, 2001.
April 5, 2001.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Orangetown, dated July 21, 1999, which denied the petitioners' application for a use variance, the petitioners appeal from a judgment of the Supreme Court, Rockland County (Dillon, J.), dated March 24, 2000, which granted the respondents' motion to dismiss the proceeding as time-barred.
Lindenbaum Young, Brooklyn, N.Y. (Alan H. Young of counsel), for appellants.
James K. Riley, Town Attorney, Orangeburg, N.Y. (Michael J. Fury of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Pursuant to Town Law § 267-c(1), the petitioners had 30 days after the filing of the respondents' determination denying their application for a use variance to commence a proceeding to review that determination. The filing in the office of the Town Clerk occurred on September 8, 1999; however, it is undisputed that the petitioners did not commence this proceeding until November 5, 1999. Accordingly, the Supreme Court properly granted the motion to dismiss the proceeding as time-barred (see, Matter of Kennedy v. Zoning Bd. of Appeals of the Vil. of Croton-on-Hudson, 78 N.Y.2d 1083; Casoloro v. Zoning Bd. of Appeals of Vil. of Elmsford, 200 A.D.2d 742; Matter of Pickett v. Town of Tusten Zoning Bd. of Appeals, 169 A.D.2d 906).
The petitioners' contention that the respondents should be estopped from asserting the Statute of Limitations as a defense is unavailing. It is well settled that estoppel is generally unavailable against a municipality or governmental entity (see, Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274). In any event, the petitioners did not demonstrate that the respondents engaged in any fraud, misrepresentation, deception, or other improper conduct that would warrant the application of the principles of estoppel (see, Simcuski v. Saeli, 44 N.Y.2d 442; Kroin v. City of New York, 210 A.D.2d 95).
The petitioners' remaining contentions are without merit.