Opinion
March 27, 1995
Appeal from the Supreme Court, Orange County (Carey, J.).
Ordered that the judgment dated July 15, 1993, is affirmed; and it is further,
Ordered that the judgment dated October 12, 1993 is affirmed insofar as appealed from; and it is further,
Ordered that the respondent Sterling Forest Development Corporation is awarded one bill of costs.
It is conceded that the determination under review became final and binding on October 14, 1992, that the four month Statute of Limitations applies, and that, because February 14, 1993 was a Sunday, and because the following day was a holiday, the petitioners' last day to interpose their claims was February 16, 1993 (see, CPLR 217; General Construction Law § 25-a; Matter of Scuderi v. Board of Educ., 49 A.D.2d 942). The record demonstrates that it was not until February 19, 1993, at the earliest, that the petitioners "fil[ed] a notice of petition or order to show cause * * * with the clerk of the court in the county in which the [present] special proceeding [was] brought" (CPLR 304, as amended by L 1992, ch 216). It was not until this date that the petitioners' claims were interposed (1 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 306b.01).
Under the circumstances outlined above, the Supreme Court correctly granted the respondents' separate motions to dismiss the first proceeding as time-barred (see, CPLR 7804 [f]; 3211 [a] [5]). It is clear that the first proceeding was not "commenced within four months after the determination to be reviewed [became] final and binding" (CPLR 217). Also, none of the respondents was served during, or prior to, the transitional period established by the Legislature, which extended from July 1, 1992 to January 1, 1993 (L 1992, ch 216, § 27), and thus the first proceeding cannot be deemed to have been properly commenced pursuant to the "former commencement-by-service methodology" (Alexander, 1992 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C304:1, 1995 Pocket Part, at 42).
The Supreme Court also properly dismissed the second proceeding. Because the first proceeding was itself not timely commenced, the terms of CPLR 205 (a) do not apply so as to permit the commencement of a second proceeding for the same relief within six months of the termination of the first proceeding (see, e.g., Dreger v. New York State Thruway Auth., 81 N.Y.2d 721; Parker v. Mack, 61 N.Y.2d 114; Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283). The second proceeding was thus subject to the same Statute of Limitations defense as that which was fatal to the first proceeding, and the second proceeding was properly dismissed (see, CPLR 7804 [f]; 3211 [a] [5]).
In light of this determination we need not address the respondents' alternative argument for affirmance based on their contention that "concept approval" is not a final determination amenable to review pursuant to CPLR article 78 (see, CPLR 7801). Balletta, J.P., Thompson, Lawrence and Goldstein, JJ., concur.