Opinion
2017–04196 Index No. 703002/16
09-30-2020
ASTORIA LANDING, INC., Appellant, v. NEW YORK CITY COUNCIL, et al., Respondents.
Leavitt & Kerson, Forest Hills, N.Y. (Paul E. Kerson of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and John Moore of counsel), for respondents.
Leavitt & Kerson, Forest Hills, N.Y. (Paul E. Kerson of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and John Moore of counsel), for respondents.
RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action for a judgment declaring that Administrative Code of the City of New York § 25–207(a) violates the plaintiff's federal and state constitutional rights to due process, the plaintiff appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), dated March 1, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and adding a provision thereto deeming the motion to be for a judgment declaring that Administrative Code of the City of New York § 25–207(a) does not violate the plaintiff's federal and state constitutional rights to due process, and thereupon granting the motion; as so modified, the order is affirmed, with costs to the defendants, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that Administrative Code of the City of New York § 25–207(a) does not violate the plaintiff's federal and state constitutional rights to due process.
Prior to the instant action, the plaintiff commenced a proceeding pursuant to CPLR article 78 against the New York City Board of Standards and Appeals (hereinafter BSA) to review a determination of the BSA dated December 4, 2012, rejecting its application to register an advertising sign (hereinafter the sign) painted on the wall of its four-story apartment building in Astoria. By order dated August 28, 2013, the Supreme Court granted the BSA's motion pursuant to CPLR 3211(a)(5) and 7804 to dismiss the proceeding on the ground that the petition was time-barred under Administrative Code of the City of New York § 25–207(a), which requires an aggrieved entity to present a petition "within [30] days after the filing of the decision in the office of the board." On appeal, this Court affirmed (see Matter of Astoria Landing, Inc. v. New York City Bd. of Stds. & Appeals, 132 A.D.3d 986, 20 N.Y.S.3d 82 ).
In the instant action against the BSA and the New York City Council, the plaintiff seeks a judgment declaring that Administrative Code of the City of New York § 25–207(a) violates its federal and state constitutional rights to due process because the code provision does not require the BSA to send copies of its decision to the aggrieved entity. By order dated March 1, 2017, the Supreme Court, referencing this Court's decision and order on the prior appeal, directed dismissal on the ground that the action is barred by the doctrines of res judicata and collateral estoppel (see CPLR 3211[a][5] ). The plaintiff appeals.
"[W]here a plaintiff in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata" ( Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347–348, 690 N.Y.S.2d 478, 712 N.E.2d 647 [internal quotation marks omitted]; see Williams v. City of Yonkers, 160 A.D.3d 1017, 1018, 76 N.Y.S.3d 92 ; Matter of Carter v. Walt Whitman N.Y. City Hous. Auth., 98 A.D.3d 1113, 951 N.Y.S.2d 210 ).
"The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; see Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 ). "The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" ( Matter of Dunn, 24 N.Y.3d 699, 704, 3 N.Y.S.3d 751, 27 N.E.3d 465 ).
Contrary to the Supreme Court's determination, the evidence submitted by the defendants failed to conclusively establish that there was identity of the parties and the issues such that the CPLR article 78 proceeding had preclusive effect in this action (see Weslowski v. Zugibe, 167 A.D.3d 972, 975, 91 N.Y.S.3d 114 ; Burgos v. New York Presbyt. Hosp., 155 A.D.3d 598, 600–601, 65 N.Y.S.3d 45 ; Jensen v. Village of Old Westbury, 160 A.D.2d 768, 553 N.Y.S.2d 820 ).
Although the Supreme Court did not reach that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, we reach that issue as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; see also Wild Oaks, LLC v. Joseph A. Beehan, Jr. Gen. Contr., Inc., 77 A.D.3d 924, 926, 910 N.Y.S.2d 137 ).
The courts may consider "the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where ‘no questions of fact are presented [by the controversy]’ " ( Matter of Tilcon, N.Y., Inc. v. Town of Poughkeepsie, 87 A.D.3d 1148, 1150, 930 N.Y.S.2d 34, quoting Hoffman v. City of Syracuse, 2 N.Y.2d 484, 487, 161 N.Y.S.2d 111, 141 N.E.2d 605 ; see North Oyster Bay Baymen's Assn. v. Town of Oyster Bay, 130 A.D.3d 885, 889, 16 N.Y.S.3d 555 ). "Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action should be taken as a motion for a declaration in the defendant's favor and treated accordingly" ( North Oyster Bay Baymen's Assn. v. Town of Oyster Bay, 130 A.D.3d at 890, 16 N.Y.S.3d 555 [internal quotation marks omitted] ). In this case, as a matter of law, the plaintiff's challenge to Administrative Code of the City of New York § 25–207(a) is without merit (see Pagliaroli v. Zoning Bd. of Appeals of Vil. of Phoenix, 66 A.D.2d 997, 998, 411 N.Y.S.2d 767 ; Alper v. Nowakowski, 58 A.D.2d 1012, 397 N.Y.S.2d 42 ; see also Matter of King v. Chmielewski, 76 N.Y.2d 182, 186, 556 N.Y.S.2d 996, 556 N.E.2d 435 ). Accordingly, the Supreme Court should have deemed the motion to be a motion for a declaration in the defendants' favor, and thereupon granted the motion.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for entry of a judgment, inter alia, declaring that Administrative Code of the City of New York § 25–207(a) does not violate the plaintiff's federal and state constitutional rights to due process (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ; Jahan v. U.S. Bank N.A., 127 A.D.3d 926, 9 N.Y.S.3d 65 ).
BALKIN, J.P., HINDS–RADIX, CONNOLLY and IANNACCI, JJ., concur.