Schulz v. Town Board of Queensbury

253 A.D.2d 956, 677 N.Y.S.2d 826, 1998 N.Y. App. Div. LEXIS 9533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1998
• Status: Published

Opinions

Cardona, P. J.

Appeal from an order of the Supreme Court (Dier, J.), entered October 28, 1997 in Warren County, which granted defendants’ motions to dismiss the complaint as, inter alia, barred by the Statute of Limitations.

On April 17, 1995, acting upon the request of defendants Marion I. Rowland and Curtis S. Rowland, defendant Town Board of Queensbury adopted Resolution No. 252 closing that section of an unimproved public highway known as Fuller Road in the Town of Queensbury, Warren County, which traversed land purchased by the Rowlands in early 1995, upon a finding that it had become “unnecessary and useless” (see, Highway Law § 171 [2]). After discussions with Town officials to reopen the highway failed, plaintiffs commenced this declaratory judgment action seeking, inter alia, a declaration that the Town Board was without authority to close Fuller Road pursuant to Highway Law § 171 (2), and that the Town Board’s resolution was ultra vires and, therefore, unconstitutional. Defendants moved to dismiss the complaint contending, inter alia, that it was barred by the four-month Statute of Limitations applicable to CPLR article 78 proceedings (see, CPLR 217). Supreme Court granted the motion. Plaintiffs appeal.

We affirm. In our view, since the adopted resolution to close the subject highway did not constitute a true legislative enactment as in the case of a local ordinance, but a generally applicable “quasi-legislative” act, the claim was capable of being resolved by means of a CPLR article 78 proceeding (see, New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 202-205; see also, Press v County of Monroe, 50 NY2d 695, 703). Despite their attempt to characterize the action as a facial attack on the constitutionality of the resolution itself, plaintiffs are essentially arguing that the Town Board’s determination to adopt the resolution was “affected by an error of law” (CPLR 7803 [3]; see, New York City Health & Hosps. Corp. v McBarnette, supra, at 205), namely, the application of Highway Law § 171 rather than Highway Law § 205, and, as such, the challenge “is plainly encompassed within the grounds for mandamus to review set forth in CPLR 7803 (3)” (New York City Health & Hosps. Corp. v McBarnette, supra, at 205). Therefore, Supreme Court was correct in finding that the governmental action sought to be challenged in this declaratory judgment action was barred by the four-month Statute of Limitations.

Although plaintiffs argue that the Statute of Limitations did not begin to run until December 6, 1996 because of discussions they had with Town officials regarding reopening of the road, it is significant that the Town Board never withdrew its determination nor represented that its decision was nonfinal. Under such circumstances, the negotiations could not operate to extend the four-month period of limitations (see, Gertler v Goodgold, 66 NY2d 946, 948) which commenced on the date the resolution was adopted.

In light of this determination, there is no need to address the parties’ remaining contentions.

White, Carpinello and Graffeo, JJ., concur.