Astoria Landing, Inc. v. N.Y.C. Council, 2017–04196
| Decision Date | 30 September 2020 |
| Docket Number | Index No. 703002/16,2017–04196 |
| Citation | 186 A.D.3d 1593,129 N.Y.S.3d 844 (Mem) |
| Parties | ASTORIA LANDING, INC., Appellant, v. NEW YORK CITY COUNCIL, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
186 A.D.3d 1593
129 N.Y.S.3d 844 (Mem)
ASTORIA LANDING, INC., Appellant,
v.
NEW YORK CITY COUNCIL, et al., Respondents.
2017–04196
Index No. 703002/16
Supreme Court, Appellate Division, Second Department, New York.
Submitted—October 21, 2019
September 30, 2020
Leavitt & Kerson, Forest Hills, N.Y. (Paul E. Kerson of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and John Moore of counsel), for respondents.
RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action for a judgment declaring that Administrative Code of the City of New York § 25–207(a) violates the plaintiff's federal and state constitutional rights to due process, the plaintiff appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), dated March 1, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and adding a provision thereto deeming the motion to be for a judgment declaring that Administrative Code of the City of New York § 25–207(a) does not violate the plaintiff's federal and state constitutional rights to due process, and thereupon granting the motion; as so modified, the order is affirmed, with costs to the defendants,
and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that Administrative Code of the City of New York § 25–207(a) does not violate the plaintiff's federal and state constitutional rights to due process.
Prior to the instant action, the plaintiff commenced a proceeding pursuant to CPLR article 78 against the New York City Board of Standards and Appeals (hereinafter BSA) to review a determination of the BSA dated December 4, 2012, rejecting its application to register an advertising sign (hereinafter the sign) painted on the wall of its four-story apartment building in Astoria. By order dated August 28, 2013, the Supreme Court granted the BSA's motion pursuant to CPLR 3211(a)(5) and 7804 to dismiss the proceeding on the ground that the petition was time-barred under Administrative Code of the City of New York § 25–207(a), which requires an aggrieved entity to present a petition "within [30] days after the filing of the decision in the office of the board." On appeal, this Court affirmed (see Matter of Astoria Landing, Inc. v. New York City Bd. of Stds. & Appeals, 132 A.D.3d 986, 20 N.Y.S.3d 82 ).
In the instant action against the BSA and the New York City Council, the plaintiff seeks a judgment declaring that Administrative Code of the City of New York § 25–207(a) violates its federal and state constitutional rights to due process because the code provision does not require the BSA to send copies of its decision to the aggrieved entity. By order dated March 1, 2017, the Supreme Court, referencing this Court's decision and order on the prior appeal, directed dismissal on the ground that the action is barred by the doctrines of res judicata and collateral estoppel
(see CPLR 3211[a][5] ). The plaintiff...
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