The following papers having been read on this motion:Order to Show Cause 1Notice of Cross-Motion (Pourgol) 2Opposition (Pourgol) 3Opposition (The North Hempstead Respondents) 4Opposition to Cross-Motion (Petitioner) 5 Petitioner moves by order to show cause for an order, pursuant to CPLR §6301 and §7805, for a preliminary injunction in this Article 78 proceeding. Respondent Pourgol has cross-moved for an order dismissing the petition in its entirety, pursuant to CPLR §3211(a)(5) and §7804(f). The North Hempstead Respondents, collectively, have opposed Petitioner’s order to show cause, only. Based upon the following, the request for a preliminary injunction is hereby denied in its entirety, the cross-motion to dismiss the petition in its entirety by Respondent Pourgol is granted, and the petition is hereby dismissed forthwith.As a preliminary matter, the instant order to show cause was filed on April 30, 2019, and presented for signature to this Court on May 2, 2019. After hearing oral argument, with all parties having been properly notified and appearing, this Court declined to grant the requested temporary restraining order accompanying the motion; nevertheless, the order to show cause was signed with such provisions struck. The order to show caused was returnable on May 29, 2019. Subsequently, on or about May 29, 2019, Petitioner attempted to file and serve an amended petition. Petitioner did not receive either permission from the Court or consent from Respondents prior to making such filing; in addition, all respondents had filed their opposition papers and Respondent Pourgol had filed a timely cross-motion. The parties also had not submitted a stipulation or expressed assent to adjourning the return date for the original order to show cause to allow for opposition to the amended petition. Therefore, the Court finds that the amended petition was improperly filed and will not be considered as part of the instant motion practice herein.Petitioner has also submitted an affidavit in opposition to the motion to dismiss, dated June 10, 2019. Although this submission was also untimely, given Petitioner’s pro se status as well as the statements contained in that document, the Court finds that no real prejudice would inure to Respondents from this document’s consideration. Accordingly, the Court will accept this late opposition to the motion to dismiss the petition and has considered same as part of the instant application. To that end, as stated in Petitioner’s opposition papers, the Court also accepts Petitioner’s withdrawal of her application for a preliminary injunction, and those portions of the order to show cause seeking same shall be deemed denied.Petitioner has brought this Article 78 proceeding as a concerned citizen and resident of Roslyn Heights, Nassau County, New York. She alleges in support of the motion that Respondent Historic Landmark Preservation Commission erred in issuing a Certificate of Appropriateness in February 2016 by permitting the demolition of a 100-year-old motorcar garage located at 155 Elm Street in Roslyn Heights, in contravention of Respondent Town’s bylaws. Petitioner further alleges that Defendant Board of Zoning erred in issuing its decision in March 2019 when it permitted Respondent Pourgol to build a home on the subject property without a variance and that it, as well as any other permits issued for the subject property, should be deemed void.A motion to dismiss a pleading based on CPLR §3211(a)(5) may be granted where the cause of action cannot be maintained because it is barred by the applicable statute of limitations. When considering such a motion, a defendant or respondent bears the initial burden of demonstrating, prima facie, that the time to commence the action has expired. Campone v. Panos, 142 AD3d 1126, 38 NYS3d 226 (2nd Dept., 2016). Only then does the burden shift to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period. Id at 1127, 227. In order to determine which statute of limitation period governs an action, the court is required to look at the substance of the action to identify the relationship out of which the claim arises and the relief is sought. P & N Tiffany Properties, Inc. v. Village of Tuckahoe, 33 AD3d 61, 817 NYS2d 345 (2nd Dept., 2006).In Article 78 proceedings, accrual of the statute of limitations occurs when the determination of the body or officer is found to be “final and binding upon the petitioner,” in that there will be no further change to the commissions’ position. Bashir v. Environmental Control Bd., 113 AD3d 763, 979 NYS2d 358 (2nd Dept, 2014). Under CPLR §217(1), final and binding means (1) the agency or officer has reached a definitive position that inflicts actual, concrete injury, and (2) no further administrative steps are available to alleviate or prevent the injury. Best Payphones, Inc. v. Department of Information Technology and Telecommunications of the City of New York, 5 NY3d 30, 799 NYS2d 182 (2005). A determination is considered final and binding when the decision is “readily ascertainable,” in that the aggrieved party knew or should have known of the decision. Save The View Now v. Brooklyn Bridge Park Corporation, 156 AD3d 928, 68 NYS3d 478 (2nd Dept., 2017).In quasi-legislative proceedings, because the aggrieved party has the potential to be large, constructive notice is often substantial. Knavel v. West Seneca Cent. School Dist., 149 AD3d 1614, 53 NYS3d 731 (4th Dept., 2017). To prevent governmental operations from being held hostage by stale claims from non-parties, a decision is considered “readily ascertainable” upon the date that the decision was issued. See Bashir v. Environmental Control Bd., 113 AD3d 763, 979 NYS2d 358 (2nd Dept., 2014).Pursuant to Town Law Section §267-c, any person or persons, jointly or severally aggrieved by any decision of the board of appeals or any officer, department, board or bureau of the town, may apply to the Supreme Court for review by a proceeding under Article 78 of the CPLR and such proceeding shall be instituted within thirty (30) days after the filing of a decision of the board in the office of the Town Clerk. Matter of Sengstacken v. Zoning Bd. Of Appeals of Town of Ramapo, 87 AD2d 651, 448 NYS2d 521 (2nd Dept., 1982).A review of the petition, as clarified by the papers from the respective Respondents, Petitioner seeks to challenge several decisions by the North Hempstead Respondents; first, Petitioner seeks to void the decision issued by Respondent Board of zoning, dated March 20, 2019. Second, Petitioner seeks to void any building permits issued to Respondent Pourgol by the North Hempstead Respondents; lastly, Respondent seeks declaratory relief that the structure located on the subject property may not be demolished. In making these requests, Petitioner herself acknowledges that the house design submitted by Respondent Pourgol was approved by the North Hempstead Respondents in October 2018 and the garage currently standing on the property was approved to be demolished in February 2016. It is without question that both of these decisions are clearly past the time period allowed to challenge such decision under CPLR §217, and Petitioner has not raised any argument to toll the statute in anyway. Therefore, the portions of the petition seeking to void any building permits and to enjoin demolition of the garage on the property are hereby denied as untimely and the cross-motion to dismiss these portions is granted.The remaining portion of the petition, seeking to challenge the decision of Respondent Board of Zoning, appears timely pursuant to CPLR §217, since Plaintiff filed her petition in this proceeding on April 30, 2019. However, following the hearing before Respondent Board of Zoning on March 20, 2019, this Respondent issued its decision and filed same with the Town Clerk’s office on March 27, 2019, as can be viewed from the time and date stamp on this document attached to Petitioner’s papers. Under such a timeline, when applying Town Law §267-c, it is clear to this Court that this portion of the petition too is untimely. See Leitner v. Town of Oyster Bay Planning and Development Dept., 143 AD3d 986, 39 NYS3d 502 (2nd Dept., 2016). Petitioner, once again, has not asserted any argument that would warrant tolling of the thirty (30) day period. Accordingly, the remaining portion of the cross motion-seeking dismissal of the remainder of the petition as being barred by the applicable statute of limitations is hereby granted and Petitioner’s request therein are correspondingly denied.Respondent Pourgol shall file and serve a copy of the within order with notice of entry to Petitioner and the North Hempstead Respondents within thirty (30) days from the date of this order.This hereby constitutes the decision and order of this Court.
