Opinion
530199
09-24-2020
In the Matter of Christine DUFFY et al., Appellants, v. TOWN OF GUILDERLAND et al., Respondents, et al., Respondents.
William J. Better, PC, Kinderhook (Joseph D. Clyne of counsel), for appellants. Law Offices of M. Randolph Belkin, Latham (Shawn T. Nash of counsel), for respondents.
William J. Better, PC, Kinderhook (Joseph D. Clyne of counsel), for appellants.
Law Offices of M. Randolph Belkin, Latham (Shawn T. Nash of counsel), for respondents.
Before: Egan Jr., J.P., Clark, Mulvey, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from a judgment of the Supreme Court (Melkonian, J.), entered April 1, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
Petitioners and respondents Kellie Baldwin and James Baldwin (hereinafter collectively referred to as the Baldwins) own adjoining parcels of property in the Town of Guilderland, Albany County. In 2015, the Baldwins excavated the front 20 feet of their front lawn and paved it, creating a small parking area. Prior to beginning the excavation, the Baldwins contacted Steven Oliver, then the superintendent of the Highway Department for respondent Town of Guilderland, and Oliver informed them that he would allow the project. Shortly thereafter, petitioners asked Oliver if the Baldwins' project had been approved, and, according to Oliver, he had explained to petitioners on multiple occasions throughout 2015 and 2016 that he had approved the project and that he would not direct the Baldwins to remove the paved parking area. Also, in or around April 2016, petitioners contacted Kenneth D'Arpino, the storm water management officer for the Town's Highway Department, with complaints regarding water runoff from the Baldwins' property to theirs. D'Arpino responded that there was no evidence of runoff and, further, that the Highway Department had previously allowed the Baldwins to pave the yard in that manner. Following his appointment as Oliver's predecessor, respondent Gregory J. Wier was informed of petitioners' continuing complaints regarding the Baldwins' paved parking area and, in June 2018, Wier inspected the Baldwins' property. Following this inspection, he informed petitioners that he would abide by Oliver's determination that there was no issue with the Baldwins' paved parking area. In October 2018, petitioners commenced this CPLR article 78 proceeding seeking to compel respondents to direct the removal of petitioners' paved parking area. Supreme Court dismissed the petition as untimely and as barred by laches. Petitioners appeal.
We affirm. Pursuant to CPLR 217(1), a CPLR article 78 "proceeding against a body ... must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner[s] ... or after the respondent[s'] refusal, upon the demand of the petitioner[s] ... to perform its duty" (see Matter of Paladino v. Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 A.D.3d 1043, 1048, 124 N.Y.S.3d 409 [2020] ). A "determination becomes final and binding when it definitively impacts and aggrieves the party seeking judicial review" ( Matter of Scott v. City of Albany, 1 A.D.3d 738, 739, 766 N.Y.S.2d 650 [2003] ; see Matter of EZ Props., LLC v. City of Plattsburgh, 128 A.D.3d 1212, 1213, 9 N.Y.S.3d 440 [2015] ).
The record reveals, and petitioners concede, that they were aware that Oliver allowed the Baldwins to install the paved parking area in 2015. Petitioners have failed to set forth any evidence that the statute of limitations was tolled (see Krog Corp. v. Vanner Group, Inc., 158 A.D.3d 914, 915–916, 72 N.Y.S.3d 178 [2018] ; State of N.Y. Workers' Compensation Bd. v. Wang, 147 A.D.3d 104, 110, 46 N.Y.S.3d 230 [2017] ). Despite petitioners' attempts to have the Town reconsider this determination throughout the years that followed, this initial determination was adhered to. Moreover, attempts to have the Town reconsider its position, or questions subsequent to the Town's determination, were insufficient to toll the statute of limitations (see Matter of Thorne v. LaClair, 166 A.D.3d 1181, 1181–1182, 84 N.Y.S.3d 871 [2018] ; Matter of Scott v. City of Albany, 1 A.D.3d at 739, 766 N.Y.S.2d 650 ; Matter of Walsh v. Superintendent of Highways of Town of Poestenkill, 135 A.D.2d 968, 969, 522 N.Y.S.2d 698 [1987], lv denied 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425 [1988] ). Accordingly, Supreme Court properly found the proceeding to be time-barred (see Matter of Loparco v. Napierala, 96 A.D.3d 1213, 1214, 946 N.Y.S.2d 316 [2012] ; Matter of Letourneau v. Town of Berne, 56 A.D.3d 880, 881, 866 N.Y.S.2d 462 [2008] ; Matter of Feldman v. New York State Teachers' Retirement Sys., 14 A.D.3d 769, 770, 788 N.Y.S.2d 230 [2005] ). This determination renders petitioners' remaining contention academic.
Egan Jr., J.P., Clark, Mulvey and Devine, JJ., concur.
ORDERED that the judgment is affirmed, without costs.