Papers considered: Notice of Motion by Plaintiff; Motion for Summary Judgment, with annexed exhibit; Notice of Cross-Motion; Affirmation of Paul Briggs, Esq., with annexed exhibits; Affidavit of Yasmine Syed; Affidavit of Michelle M. Martinelli, with annexed exhibits; Affidavit of Kevin A. Walsh This matter comes before the Court on cross-motions by the parties. Plaintiff has moved for summary judgment on the two claims found in his Complaint. Defendants have crossmoved for summary judgment dismissing the Complaint. Plaintiff’s first cause of action seeks attorney fees and costs for Defendants’ lack of response to a FOIL request he filed regarding a subdivision authorized by Defendants. The second cause of action seeks an injunction suspending construction activities on that subdivided parcel until the Declaration Regarding Restrictive Covenants relating to that subdivision, which Plaintiff alleges is erroneous, is corrected. The Nature of Plaintiff’s Claims. At the outset, some procedural definition is in order. Plaintiff has served a Summons and Complaint in which he states that he is asserting a civil action for damages against Defendants. The first cause of action alleges that Defendants failed to fulfill their duties under Public Officers Law §89 in connection with his FOIL request. In his prayer for relief Plaintiff seeks judgment for $5,000.00 in attorney’s fees and litigation costs and demands that defendant Town supply the documents he requested. However, Public Officers Law §89(4)(b) specifies that the appropriate vehicle for judicial review of a FOIL request is a special proceeding brought under Article 78 of the CPLR, rather than a civil action. Plaintiff’s second cause of action alleges that the Declaration Regarding Restrictive Covenants recorded in the County Clerk’s office regarding the subdivision at issue was incorrectly drafted by the Town Attorney’s office, in that it does not match the Resolution passed by the Town Board, and that Defendants have failed to correct it. In his motion papers, Plaintiff argues that Defendants are guilty of negligence and have violated the covenant of good faith and fair dealing through their failure to correct the faulty declaration. The Court’s reading of the Complaint does not show that Plaintiff is alleging a cause of action for negligence or for breach of the covenant of good faith and fair dealing. Indeed, there is nothing in the record to show that Plaintiff has filed a notice of claim with the Town, which would be a prerequisite to suit on either of those claims (Town Law §§65 & 67; General Municipal Law §50-e). However, the Complaint can be read as requesting a judgment “in the nature of mandamus” requiring the Town Attorney’s office to abide by terms of the Town Board’s resolution and to correct the faulty declaration. Like Plaintiff’s first cause of action, this form of relief is provided for under Article 78 of the CPLR (CPLR §7801). Special proceedings, such those brought under Article 78, are governed by Article 4 of the CPLR, which includes several procedural requirements that differ from those applied to civil actions generally. One such requirement is that a special proceeding is properly commenced with a Notice of Petition and a Petition, rather than a summons and complaint. However, the Complaint served by Plaintiff adequately describes the actions by Town officials that Plaintiff is challenging, so that Plaintiff’s incorrect choice of pleading form does not appear to prejudice Defendants. Indeed, it is evident from Defendants’ cross motion that they regard Plaintiff’s claims as constituting an Art. 78 proceeding. Therefore, the Court will utilize its authority under CPLR §2001 to disregard Plaintiff’s mistaken choice of pleading form and treat the Complaint as an Article 78 Petition. The Motions. Turning to the parties’ motions, a further procedural point is in order. Summary judgment motions are authorized by CPLR §3212, which provides that a summary judgment motion must be supported by an affidavit of material facts. None of the motion papers submitted by Plaintiff are sworn to before a notary public and thus do not constitute affidavits (see 2 Carmody Waite 2d New York Practice §4.11 [Sept. 2021 update]). Plaintiff has therefore failed to support his motion with an affidavit of facts. Reviewing all the submitted papers, however, it appears to the Court to be in the interests of judicial economy to utilize CPLR §2001 to overlook this error and review the substance of the parties’ motion papers. The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving parties (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]). Plaintiff’s Motion. With respect to his first cause of action, Plaintiff’s summary judgment motion cannot be granted. Plaintiff does not state that he followed all the requirements of Public Officers Law §89 prior to filing this proceeding. The statute provides in §89(4)(a) that a person whose FOIL request is denied can appeal the denial to the chief executive or governing body of the entity involved, which in this case would be the Town Supervisor. In his motion papers, Plaintiff argues that because the Town did not respond to his FOIL request, there was nothing to appeal. However, §89(4)(a) also provides that a failure by the Town to abide by the time deadline for response to a FOIL request is deemed a denial, which prompts such an appeal. The failure to appeal to the Town Supervisor can have serious consequences. If a plaintiff fails to appeal to the chief executive or governing body prior to commencing an Art. 78 proceeding in court, the court proceeding will be dismissed under the long-standing doctrine of exhaustion of administrative remedies (see e.g. Matter of Bradhurst Site Constr. Corp. v. Zoning Board of Appeals, Town of Mount Pleasant, 128 AD3d 817 [2d Dept 2015]; Matter of Cosgrove v. Klingler, 58 AD2d 910 [1977]). Because Plaintiff has not shown that he exhausted his administrative remedies by appealing to the Town Supervisor prior to bringing this proceeding, he also has not shown that he is entitled to summary judgment on his FOIL claim. With respect to the second cause of action, Plaintiff relies on the documents annexed to the Complaint as exhibits. Town Board Resolution No. 2020-15 states that the Declaration of Intention attached to it is also incorporated into the Resolution as a condition. The recitals in the Declaration of Intention state that the property owner has agreed to deed restrictions that will “prevent subdivision of these lots in perpetuity.” The Declaration of Intention further states that the Applicant has “no intention of subdividing Lot 4.” In contrast to this language, the Declaration Regarding Restrictive Covenants recorded with the County Clerk provides that further subdivision is prohibited ” unless prior written approval by the Planning and Zoning Commission” is obtained. This is the gravamen of Plaintiff’s case. Plaintiff states numerous times in his papers his concern that the Restrictive Covenants Declaration allows for further subdivision of Lot 4, which is prohibited by the resolution of the Town Board. Plaintiff annexes to the Complaint copies of email correspondence he had with the Town Planner in which she acknowledges that the statement in the Restrictive Covenants Declaration complained of by Plaintiff is an error. On the face of these exhibits, Plaintiff has made his prima facie showing for summary judgment in the nature of mandamus requiring the Town Attorney to correct the Declaration. Defendants’ Cross-Motion. Turning to Defendants’ cross-motion for summary judgment, Defendants first assert that although Plaintiff did not properly file his FOIL request with the correct officer of the Town, his request was forwarded to the Town’s Records Management Officer and Plaintiff ultimately received the documents he sought, so that this claim should be dismissed as moot. Plaintiff acknowledges that he has received the requested documentation. His first cause of action is therefore moot (see e.g. Cobado v. Benziger, 163 AD3d 1103 [3d Dept 2018]). Second, Defendants argue that Plaintiff indeed failed to exhaust his administrative remedies. Defendants submit affidavits from the Town Supervisor and the Town Clerk attesting to the fact that, while Plaintiff claims denial of his FOIL request due to the Town’s tardiness, he never filed an appeal with the Town. Defendants have therefore gone beyond their burden of showing a question of fact and have made a prima facie showing that Plaintiff failed to exhaust his administrative remedies. With respect to Plaintiff’s second cause of action, Defendants assert that Plaintiff’s claim is untimely and should be dismissed under the applicable statute of limitations found in CPLR §217. Defendants point out that a proceeding against a body or officer must be commenced within four months of the effective date of the action concerned. Defendants focus on the date on which the Town Board passed Resolution No. 2020-15, which was June 22, 2020. By Defendants’ count, Plaintiff had until October 22, 2020, to commence this proceeding, which Plaintiff failed to do. This proceeding was commenced on March 8, 2021, the date when the Summons and Complaint were filed with the County Clerk (CPLR §304). Plaintiff argues that §217 is inapplicable. However, the terms “body or officer” used in §217 include municipal authorities such as Defendants (CPLR §7802; see e.g. Concerned Citizens of Wilton v. Town Bd. of Town of Wilton, 203 AD2d 768 [3d Dept 1994]). While CPLR §217 is the applicable statute of limitations, the calculation of the limitations period is somewhat involved on the facts here. The Court’s reading of the Complaint is that Plaintiff is not challenging Resolution 2020-15, but rather the action of the Deputy Town Attorney who drafted the Declaration Regarding Restrictive Covenants that was recorded with the County Clerk. The Declaration was dated July 20, 2020 and recorded on September 10, 2020. Using the rule cited by Defendants that the limitations period begins to run when the government action complained of becomes effective and “inflicts the alleged injury on the petitioner” (Matter of Eadie v. Town Board of the Town of North Greenbush, 22 AD3d 1025, 1027 [3d Dept 2005]), it appears to this Court that the four-month period for Plaintiff to commence this proceeding would have begun on September 10, 2020. The timing of the events at issue here, however, brings an additional overlay to this calculation. During 2020, then-governor Cuomo issued a series of Executive Orders based on his declaration of an emergency due to the COVID-19 pandemic. Executive Order 202.8 tolled any specific time limit for the commencement, filing or service of any legal action or proceeding. The toll was extended through a series of executive orders until November of 2020, when Executive Order 202.67 was issued, ending the toll as of November 4, 2020. The four-month period thus began on November 4, 2020. Unfortunately for Plaintiff, even after considering all these factors, this proceeding was not timely commenced. The four-month statute of limitations period expired on March 4, 2021, four days before this proceeding was filed. A claim that is not commenced before the expiration of the applicable statute of limitations must be dismissed (see e.g. Facteau v. Clinton County Bd. Of Elections, ___ AD3d ___, 2021 NY Slip. Op. 04743 [3d Dept 2021]). A court does not have the power to extend a statute of limitations period (CPLR §201). Conclusion. The record on these motions shows that Plaintiff’s claim for FOIL relief is moot and that Plaintiff did not exhaust his administrative remedies. The record also shows that Plaintiff has identified an error in the Declaration Regarding Restrictive Covenants recorded with the Schenectady County Clerk, which could give rise to mandamus-type relief to order its correction. But in the final analysis, this proceeding was not commenced within the four-month statute of limitations period found in CPLR §217 and must be dismissed. The parties’ remaining contentions have been considered, but they do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby ORDERED, that the motion by Plaintiff seeking summary judgment on the claims found in the Complaint is denied; and it is further ORDERED, that the motion by Defendants seeking summary judgment dismissing the Complaint is granted, and the Complaint filed and served by Plaintiff is dismissed. Dated: September 16, 2021
