Kan v. New York City Environmental Control Board

Appellate Division of the Supreme Court of New York

Kan v. New York City Environmental Control Board

262 A.D.2d 135, 691 N.Y.S.2d 500, 1999 N.Y. App. Div. LEXIS 6760

Appellate Division of the Supreme Court of the State of New York·Decided June 15, 1999·Published·Cited by 5 cases

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Helen Freedman, J.), entered July 8, 1998, which denied petitioner’s application pursuant to CPLR article 78 to annul respondent’s determination finding petitioner in violation of 15 RCNY 1-58 (b) (3) and imposing a civil penalty of $10,000, and dismissed the proceeding as time-barred, unanimously affirmed, without costs.

CPLR 217 requires an article 78 proceeding to be commenced within four months after the determination to be reviewed becomes binding and final upon the petitioner. Where, as here, the determination is unambiguous and of certain consequence, the statutory period commences as soon as the aggrieved party is notified (Matter of Edmead v McGuire, 67 NY2d 714). It is undisputed that the subject determination was mailed to petitioner on July 1, 1997, and promptly received. Petitioner’s commencement of this article 78 proceeding on December 18, 1997 was, therefore, untimely. Petitioner’s letter of July 17, 1997 requesting reconsideration did not toll the statutory period (see, Matter of De Milio v Borghard, 55 NY2d 216; Raykowski v New York City Dept. of Transp., 259 AD2d 367). Concur — Rosenberger, J. P., Tom, Rubin, Saxe and Buckley, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Helen Freedman, J.), entered July 8, 1998, which denied petitioner’s application pursuant to CPLR article 78 to annul respondent’s determination finding petitioner in violation of 15 RCNY 1-58 (b) (3) and imposing a civil penalty of $10,000, and dismissed the proceeding as time-barred, unanimously affirmed, without costs.

CPLR 217 requires an article 78 proceeding to be commenced within four months after the determination to be reviewed becomes binding and final upon the petitioner. Where, as here, the determination is unambiguous and of certain consequence, the statutory period commences as soon as the aggrieved party is notified (Matter of Edmead v McGuire, 67 NY2d 714). It is undisputed that the subject determination was mailed to petitioner on July 1, 1997, and promptly received. Petitioner’s commencement of this article 78 proceeding on December 18, 1997 was, therefore, untimely. Petitioner’s letter of July 17, 1997 requesting reconsideration did not toll the statutory period (see, Matter of De Milio v Borghard, 55 NY2d 216; Raykowski v New York City Dept. of Transp., 259 AD2d 367). Concur — Rosenberger, J. P., Tom, Rubin, Saxe and Buckley, JJ.

Kan v. New York City Environmental Control Board, 262 A.D.2d 135, 691 N.Y.S.2d 500, 1999 N.Y. App. Div. LEXIS 6760 (N.Y. Ct. App. 1999).

Pincite

262 A.D.2d 135 (Kan v. New York City Environmental Control Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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