Opinion
No. 9136/12.
2012-06-7
Michael TORRES, an infant by and through his mother and natural Guardian, Melinda Parrino, Petitioners, v. The NEW YORK CITY BOARD OF STANDARDS AND APPEALS, Meenakshi Srinivasan, Christopher Collins, Dara Ottley–Brown, Susan Hinkson, Eileen Montanez, the New York City Department of Buildings and Dutch Kills Partners LLC a/k/a Dutch Kill Partners LLC, Respondents.
KEVIN J. KERRIGAN, J.
Application by infant petitioner for leave pursuant to CPLR 217(1) to commence a proceeding under CPLR Article 78 against defendants is denied and the petition is dismissed.
Infant petitioner, Michael Torres, seeks to annul the resolution of the New York City Board of Standards and Appeals (BSA) issued on May 25, 2010 and filed on May 27, 2010 which reinstated an expired building permit issued by the New York City Department of Buildings to Dutch Kills Partners LLC to construct a nine-story hotel building adjacent to 39–31 27th Street in Queens County, said adjacent premises being the residence of infant plaintiff.
Pursuant to x25–207 of the New York City Administrative Code, a special proceeding pursuant to CPLR Article 78 challenging a decision of the BSA must be brought within 30 days after the filing of the decision in the office of the BSA.
On June 25, 2010, infant petitioner's grandmother, Rose Parrino, the owner of the premises located at 39–31 27th Street, filed a notice of petition and petition under CPLR Article 78 seeking annulment of the resolution of the BSA. Parrino, however, failed to timely serve the notice of petition and petition upon respondents pursuant to CPLR 306–b. She thereafter moved pursuant to CPLR 306–b for an extension of time to serve the notice of petition and petition, and the City and Dutch Kills cross-moved to dismiss the petition for lack of personal jurisdiction. Pursuant to the order of Justice Marguerite A. Grays issued on December 8, 2010 (Index No. 16306/10), the motion was denied, the cross-motions were granted and the petition was dismissed, since petitioners failed to timely serve respondents, pursuant to CPLR 306–b, within 15 days of the expiration of the 30–day statute of limitations for commencing an Article 78 proceeding against the BSA, which statute of limitations expired on June 26, 2010. Said order was affirmed pursuant to the order of the Appellate Division, Second Department, issued on December 20, 2011 (Parrino v. New York City Board of Standards and Appeals, 90 A.D.3d 931, 934 N.Y.S.2d 813).
Infant petitioner, by his mother, Melinda Perrino, now seeks leave to commence a new Article 78 proceeding against respondents, seeking the same relief. Neither petitioner nor his mother were petitioners in the prior Article 78 proceeding. Since the 30–day statute of limitations for bringing an Article 78 proceeding to challenge the determination of the BSA has expired, the Perrinos, in a maneuver to bypass the 30–day statute of limitations applicable to this matter and the decisions of Justice Grays and the Appellate Division, Second Department, have now proffered Michael Torres, who is twelve years old, as the proposed petitioner in the instant matter under the provision of CPLR 217(1) which provides a two-year statute of limitations for an Article 78 petition brought, by leave of the Court, by one suffering from a disability as defined in CPLR 208 (infancy or insanity).
Petitioner's application is without merit. It is clear that the limitation period provided in CPLR 217(1) is not the applicable statute of limitations governing the instant matter.
CPLR 217(1) is the general statute of limitations section governing Article 78 proceedings. That section, however, is not the applicable statute of limitations governing Article 78 proceedings challenging a decision of the BSA. That section provides: “ Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty; or with leave of the court where the petitioner or the person whom he represents, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability specified in section 208, within two years after such time” (emphasis added).
The language of CPLR 217(1) is thus clear that an Article 78 petition must be commenced within four months, or, if the petitioner is an infant on the date of the final determination sought to be challenged, within two years, and only with leave of the court, unless a shorter statute of limitations governs. Since it is undisputed that the statute of limitations governing Article 78 proceedings brought against the BSA is 30 days, pursuant to x25–207 of the Administrative Code, infant petitioner may not avail himself of the provision of CPLR 217(1) to commence an Article 78 proceeding challenging the BSA's decision filed on May 27, 2010, as that section is not controlling.
Moreover, there is no statute otherwise tolling the 30–day statute of limitations for Article 78 proceedings against the BSA upon the ground of disability, and petitioner does not contend that there is. The Court notes that the toll for infancy or insanity provided by CPLR 208, wherein, inter alia, a statute of limitations of less than three years is extended by the period of infancy, applies only to actions and not special proceedings. Indeed, petitioner's counsel does not argue that an Article 78 petition against respondents by infant petitioner is governed by that section.
The Court also notes that the short periods of limitation for commencing Article 78 proceedings, far shorter than for actions, reflects the concern of the Legislature for the finality of decisions of government agencies. The Court of Appeals has noted with regard to the general four-month statute of limitations for Article 78 proceedings, “A strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potential litigation” ( Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of NY, 5 N.Y.3d 30 [2005] ).
The shorter, 30–day, period of limitation for commencing and Article 78 proceeding challenging a decision of the BSA reflects an even stronger public policy concern of the New York City Council. “Though article 78 challenges generally must be brought within four months, the limitations period may be shortened by law (CPLR 217). In this case, New York City's Administrative Code shortened the limitations period to 30 days ... The City's legislative determination to impose a 30–day period by which to file a challenge to a zoning decision balances powerful competing interests—allowing for citizen challenges on the one hand, while recognizing the urgency of private interests involving substantial financial investment on the other” ( Red Hook/Gowanus Chamber of Commerce v. New York City Bd. oof Stds. & Appeals, 5 N.Y.3d 452 [2005] ).
It is, therefore, not surprising that the Legislature deemed it appropriate not to provide a toll of the four-month statute of limitations for Article 78 proceedings by reason of infancy, but instead decided that an Article 78 proceeding may only be commenced by an infant by leave of court, and that only in the event leave is granted, the proceeding would be governed by a straight two-year statute of limitations. It is similarly not surprising that with regard to the even shorter 30–day period of limitation for commencing Article 78 proceedings against the BSA under x25–207 of Administrative Code, which is the statute of limitations applicable to the instant matter and which is reflective of the New York City Council's even greater public policy urgency with respect to determinations of the BSA, that the City Council deemed it appropriate not to provide any extended statute of limitations for infants and incompetents at all.
Therefore, since the period of limitation for commencement of an Article 78 proceeding to annul the decision of the BSA is not governed by CPLR 217(1), infant petitioner may not avail himself of its provision for leave to commence a proceeding under that section's two-year statute of limitations for infants and insane persons.
Accordingly, the application is denied and the petition is dismissed.