van Tol v. City of Buffalo

Appellate Division of the Supreme Court of New York

van Tol v. City of Buffalo

107 A.D.3d 1626, 967 N.Y.S.2d 844

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2013

StatusPublished

Cited by2 cases

This text of 107 A.D.3d 1626 (van Tol v. City of Buffalo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

van Tol v. City of Buffalo, 107 A.D.3d 1626, 967 N.Y.S.2d 844 (N.Y. Ct. App. 2013).

Pincite

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 14, 2011 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to conduct an [1627]*1627investigation, pursuant to General Municipal Law § 204-d, into two fires at two rental properties she owned. Supreme Court properly dismissed the petition on the ground that the proceeding was not timely commenced. We note at the outset that the relief requested in the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law” (Matter of De Milio v Borghard, 55 NY2d 216, 220 [1982]; see Matter of Heck v Keane, 6 AD3d 95, 99 [2004]). In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1]; see Matter of Schwartz v Morgenthau, 23 AD3d 231, 233 [2005], affd 7 NY3d 427 [2006]; Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430, 442 [1959]). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs” (Matter of Devens v Gokey, 12 AD2d 135, 136 [1961], affd 10 NY2d 898 [1961]; see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]). Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” (Densmore, 265 AD2d at 839).

In light of our determination, we need not address the issue whether the petition failed to state a cause of action for which relief can be granted. Present — Scudder, P.J., Smith, Centra and Lindley, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 14, 2011 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to conduct an [1627]*1627investigation, pursuant to General Municipal Law § 204-d, into two fires at two rental properties she owned. Supreme Court properly dismissed the petition on the ground that the proceeding was not timely commenced. We note at the outset that the relief requested in the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law” (Matter of De Milio v Borghard, 55 NY2d 216, 220 [1982]; see Matter of Heck v Keane, 6 AD3d 95, 99 [2004]). In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1]; see Matter of Schwartz v Morgenthau, 23 AD3d 231, 233 [2005], affd 7 NY3d 427 [2006]; Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430, 442 [1959]). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs” (Matter of Devens v Gokey, 12 AD2d 135, 136 [1961], affd 10 NY2d 898 [1961]; see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]). Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” (Densmore, 265 AD2d at 839).

In light of our determination, we need not address the issue whether the petition failed to state a cause of action for which relief can be granted. Present — Scudder, P.J., Smith, Centra and Lindley, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

107 A.D.3d 1626, 967 N.Y.S.2d 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-tol-v-city-of-buffalo-nyappdiv-2013.

Opinion

Related

Cite This Page — Counsel Stack