Oak Island Beach Ass'n v. Flacke

96 A.D.2d 841, 465 N.Y.S.2d 596, 1983 N.Y. App. Div. LEXIS 19429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 1, 1983
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Environmental Conservation, dated September 4, 1981, which granted the application of respondent Oak Beach Inn Corporation for a permit to extend and widen an existing pier appurtenant and adjacent to its premises at Oak Beach, Suffolk County, New York, and extending it into Fire Island Inlet. Proceeding dismissed, without costs or disbursements. Pursuant to section 25-0404 of the Environmental Conservation Law and the regulations promulgated thereunder (6 NYCRR 661.36), judicial review of the commissioner’s order must be sought “within thirty days from the date of the commissioner’s order.” The commissioner’s order is dated September 4, 1981; thus, this proceeding commenced on December 31, 1981 is •untimely. Petitioners’ claim that the 30-day period has not yet begun to run because service of the order was only made upon their attorney is without merit. While, by regulation (6 NYCRR 661.19), the commissioner has provided that a copy of any order is to be mailed or delivered immediately following the decision to each party in interest and to the attorney of record, the limitations period commences from the date of the order and not the date of service. Hence the date of service is irrelevant (cf. Matter ofFiedelman v New York State Dept, of Health, 58 NY2d 80). Moreover, the attorney representing the petitioners at the administrative proceeding supplied only his address and was adamant about his authority to represent them. Under such circumstances, service upon the attorney must be deemed constructive service upon the petitioners (cf. Dobkin v Chapman, 21 NY2d 490). Mollen, P. J., Titone, Bracken and Brown, JJ., concur.