Annenberg v. Environmental Control Bd. of Dept. of Environmental Protection of City of New York

• Decision Date: 23 October 1995
• Citation: 220 A.D.2d 634,632 N.Y.S.2d 824
• Parties: Paul ANNENBERG, Respondent, v. ENVIRONMENTAL CONTROL BOARD OF the DEPARTMENT OF ENVIRONMENTAL PROTECTION OF the CITY OF NEW YORK, etc., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 824

632 N.Y.S.2d 824

220 A.D.2d 634

Paul ANNENBERG, Respondent, v. ENVIRONMENTAL CONTROL BOARD OF the DEPARTMENT OF ENVIRONMENTAL PROTECTION OF the CITY OF NEW YORK etc., et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Oct. 23, 1995.

Paul A. Crotty, Corporation Counsel, New York City (Larry A. Sonnenshein and Mordecai Newman, of counsel), for appellants.

Paul Annenberg, Far Rockaway, respondent pro se.

Before MILLER, J.P., and ALTMAN, GOLDSTEIN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring Local Laws, 1977, No. 24 of the City of New York illegal and void, the municipal defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated April 16, 1993, which denied their motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied the branches of the municipal defendants' motion which were to dismiss the second and third causes of action, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements, and the second and third causes of action are dismissed insofar as asserted against the municipal defendants.

The plaintiff is the owner of certain residential property in Queens. Between, May 1980 and May 1985, 37 notices of sanitation violations were issued against the plaintiff's property. The plaintiff apparently defaulted in responding to these violations. Pursuant to the authority conferred upon it by Local Laws, 1977, No. 24 of the City of New York (hereinafter Local Law No. 24), the Environmental Control Board (hereinafter ECB) proceeded to adjudicate the violations and enforce the penalties imposed. The plaintiff commenced the instant action in 1992 alleging, inter alia, that Local Law No. 24 should be declared illegal and void because it was enacted in violation of the notice provisions of Municipal Home Rule Law § 20(5) and New York City Administrative Code § 3-208.

The municipal defendants moved to dismiss the complaint insofar as it is asserted against them. They argued that the plaintiff's challenge to Local Law No. 24 was time-barred since it should have been commenced as a CPLR article 78 proceeding within four months after Local Law No. 24 was enacted. The Supreme Court, passing only on this limited issue, denied the motion.

The general rule is that a CPLR article 78 proceeding is unavailable to challenge the validity of a legislative act except where the challenge is directed not at the substance of the ordinance but at the procedures followed in its enactment (see, Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 202, 518 N.Y.S.2d 943, 512 N.E.2d 526). Here the plaintiff seeks to have Local Law No. 24 declared invalid insofar as the pertinent notice requirements were not met, thus substantively invalidating the law (see, Alscot Investing Corp. v. Laibach, 65 N.Y.2d 1042, 494 N.Y.S.2d 295, 484 N.E.2d 658; 41 Kew Gardens Rd. Assoc. v. Tyburski, 124 A.D.2d 553, 507 N.Y.S.2d 698). Assuming the truth of the plaintiff's allegations as we must on a motion to dismiss (see, Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 510 N.Y.S.2d 172), we agree that the alleged failure to comply with the statutory notice...