Opinion
2016–02752 Index No. 12658/14
04-11-2018
In the Matter of BROADWAY BARBEQUE CORPORATION, et al., petitioners/plaintiffs-appellants, v. NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, et al., respondents/defendants-respondents.
Spero Andreopoulos, Astoria, N.Y., for petitioners/plaintiffs-appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Megan E.K. Montcalm of counsel), for respondents/defendants-respondents.
Spero Andreopoulos, Astoria, N.Y., for petitioners/plaintiffs-appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Megan E.K. Montcalm of counsel), for respondents/defendants-respondents.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.
DECISION & ORDER In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioners/plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 29, 2015. The order and judgment granted that branch of the motion of the respondents/defendants which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition/complaint as time-barred and, in effect, dismissed the proceeding/action. ORDERED that the order and judgment is affirmed, with costs.
In March 2010, the respondent/defendant New York City Board of Health adopted section 81.51 of the New York City Health Code, which authorizes the grading of inspection results for certain food service establishments and the posting of those grades (see N.Y. City Health Code [24 RCNY] § 81.51). This grading system was implemented in July 2010. In August 2014, the petitioners/plaintiffs (hereinafter the appellants) commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief challenging the authority of the respondents/defendants (hereinafter the respondents) to implement the grading system and seeking to invalidate that system. The Supreme Court denied the petition/complaint without prejudice to renew upon proper papers.
Thereafter, the appellants filed a second petition/complaint dated May 29, 2015 (hereinafter the 2015 petition), which alleged, inter alia, that the grading system was implemented in violation of lawful procedure, affected by an error of law, and arbitrary and capricious. The 2015 petition also sought declaratory and injunctive relief. In the order and judgment appealed from entered December 29, 2015, the Supreme Court granted that branch of the respondents' motion which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the 2015 petition as time-barred and, in effect, dismissed the proceeding/action (hereinafter proceeding). We affirm.
"[W]here a quasi-legislative act by an administrative agency ... is challenged on the ground that it ‘was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ ( CPLR 7803[3] ), a proceeding in the form prescribed by article 78 can be maintained and, as a corollary matter, the four-month Statute of Limitations that ordinarily governs such proceedings is applicable" ( New York City Health & Hosps. Corp. v. McBarnette, 84 N.Y.2d 194, 204, 616 N.Y.S.2d 1, 639 N.E.2d 740 ; see Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194, 831 N.Y.S.2d 749, 863 N.E.2d 1001 ). Here, although the 2015 petition sought injunctive and declaratory relief, the gravamen of the 2015 petition was that the grading system was implemented in violation of lawful procedure, affected by an error of law, and arbitrary and capricious. Therefore, the Supreme Court correctly determined that the four-month statute of limitations set forth in CPLR 217(1) applies to this proceeding (see Matter of Greens at Half Hollow, LLC v. Suffolk County Dept. of Pub. Works, 147 A.D.3d 942, 944, 48 N.Y.S.3d 147 ; Tornheim v. Fiala, 136 A.D.3d 797, 797, 25 N.Y.S.3d 290 ; Thrun v. Cuomo, 112 A.D.3d 1038, 1040–1041, 976 N.Y.S.2d 320 ; Long Is. Power Auth. Ratepayer Litig., 47 A.D.3d 899, 900, 850 N.Y.S.2d 609 ; Matter of Peckham Materials Corp. v Westchester County, 303 A.D.2d 511, 511–512, 756 N.Y.S.2d 594 ).
Furthermore, the Supreme Court properly granted that branch of the respondents' motion which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the 2015 petition as time-barred. The appellants challenge the adoption of the grading system, which became effective in July 2010. Inasmuch as the appellants did not commence the instant proceeding until August 2014, more than four years later, their causes of action are time-barred (see CPLR 217[1] ; Thrun v. Cuomo, 112 A.D.3d at 1041, 976 N.Y.S.2d 320 ; Matter of Peckham Materials Corp. v. Westchester County, 303 A.D.2d at 512, 756 N.Y.S.2d 594 ).
The appellants' remaining contentions either are without merit or need not be reached in light of our determination.
MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.