Kaneev v. City of New York Environmental Control Board

In a proceeding pursuant to CPLR article 78 to review two determinations of an administrative law judge, both dated May 15, 2008, which, after a hearing, found that the petitioner violated former Administrative Code of the City of New York §§ 27-118.1 and 27-147, and imposed penalties in the sums of $3,050 and $800, respectively, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Dufficy, J.), entered October 6, 2014, which granted the respondent’s motion pursuant to CPLR 7804 (f) and 3211 (a) to dismiss the petition, denied the petition, and, in effect, dismissed the proceeding.

Ordered that the order and judgment is affirmed, without costs or disbursements.

The petitioner is the owner of a legal two-family dwelling in Queens, where he also resides. On March 18, 2008, the New York City Department of Buildings (hereinafter the DOB) issued two notices of violation (hereinafter the March NOVs) alleging that the petitioner had violated former Administrative Code of the City of New York § 27-118.1 by altering the residence to provide for more than the legally approved number of families, and former Administrative Code of the City of New York § 27-147 by performing work without a permit. On May 13, 2008, a hearing was held before an administrative law judge (hereinafter the ALJ). In two determinations dated May

In early July 2008, the DOB served the petitioner with another notice of violation dated June 26, 2008 (hereinafter the June NOV), alleging, once again, that he was in violation of former Administrative Code § 27-118.1. On February 10, 2009, a hearing was held on the June NOV, and the ALJ sustained the June NOV. Thereafter, the petitioner appealed from that determination, and in a determination dated September 26, 2013, the ECB found that the petitioner was not in violation and dismissed the June NOV.

In a letter to the ECB dated October 21, 2013, the petitioner requested that the March NOVs be dismissed in light of the ECB’s dismissal of the June NOV. In a letter dated November 8, 2013, the ECB stated that the petitioner had “exceeded the time limit for filing” an appeal, but if he believed that the appeal was rejected in error, he should submit documentation by November 18, 2013, because “[o]n that date the rejection will become final.” In response, the petitioner sent the ECB a letter dated November 15, 2013, with documentation.

On April 8, 2014, the petitioner commenced this CPLR article 78 proceeding to review the ALJ’s May 15, 2008, determinations on the March NOVs. The ECB moved pursuant to CPLR 7804 (f) and 3211 (a) to dismiss the petition. In an order and judgment (one paper) entered October 6, 2014, the Supreme Court granted the motion, denied the petition, and, in effect, dismissed the proceeding.

Contrary to the Supreme Court’s determination, the petitioner did not fail to exhaust his administrative remedies. Generally, “ ‘one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law’ ” (NYCTL 2009-A Trust v Tsafatinos, 101 AD3d 1092 , 1093 [2012], quoting Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52 , 57 [1978]). One of the exceptions to the exhaustion rule is where resort to an administrative remedy would be futile (see Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d at 57 ). Here, after the ALJ

However, the Supreme Court properly granted that branch of the ECB’s motion which was to dismiss the petition on the ground that it was time-barred. A proceeding pursuant to CPLR article 78 “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]; see Hilburg v New York State Dept. of Transp., 138 AD3d 1062 , 1063 [2016]). “There are two requirements for fixing the time when agency action is deemed final and binding. ‘First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” (Hilburg v New York State Dept. of Transp., 138 AD3d at 1063 , quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30 , 34 [2005]). Generally, a request for discretionary consideration does not serve to extend the statute of limitations or change a final determination into a nonfinal one (see Kahn v New York City Dept. of Educ., 18 NY3d 457 , 462 [2012]). “However, where ‘the agency conducts a fresh and complete examination of the matter based on newly presented evidence,’ an aggrieved party may seek review in a CPLR article 78 proceeding commenced within four months of the new determination” (Matter of Riverso v New York State Dept. of Envtl. Conservation, 125 AD3d 974 , 977 [2015], quoting Matter of Quantum Health Resources v DeBuono, 273 AD2d 730 , 731-732 [2000]).

Here, the ECB conducted a fresh and complete examination

The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic by our determination.

Dillon, J.P., Roman, Hinds-Radix and Duffy, JJ., concur.