Hilburg v. N.Y. State Dep't of Transp.
| Decision Date | 27 April 2016 |
| Docket Number | 2014-07492, Index No. 3838/13. |
| Citation | 31 N.Y.S.3d 126,138 A.D.3d 1062,2016 N.Y. Slip Op. 03138 |
| Parties | Wendy HILBURG, et al., appellants, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
138 A.D.3d 1062
31 N.Y.S.3d 126
2016 N.Y. Slip Op. 03138
Wendy HILBURG, et al., appellants,
v.
NEW YORK STATE DEPARTMENT OF TRANSPORTATION, et al., respondents.
2014-07492, Index No. 3838/13.
Supreme Court, Appellate Division, Second Department, New York.
April 27, 2016.
Costantino Fragale, Mamaroneck, NY, for appellants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Anisha S. Dasgupta, Andrew Kent, and Philip V. Tisne of counsel), for respondents New York State Department of Transportation, N.A. Choubah, and Kamal Ahmed.
McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Kevin E. Staudt of counsel), for respondents Village of Mamaroneck and Richard Slingerland.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ., and FRANCESCA E. CONNOLLY.
In a hybrid action, inter alia, to recover damages pursuant to 42 U.S.C. § 1983 for a violation of constitutional rights, and proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Transportation dated May 9, 2013, repealing a prior order which had prohibited parking outside the premises of the plaintiffs/petitioners, and to direct the Village of Mamaroneck to replace certain “no parking” signs, the plaintiffs/petitioners appeal from an order of the Supreme Court, Westchester County (Zuckerman, J.), dated June 4, 2014, which granted the motion of the defendants/respondents Village of Mamaroneck and Richard Slingerland, and the separate motion of the defendants/respondents New York State Department of Transportation, N.A. Choubah, and Kamal Ahmed, pursuant to CPLR 3211(a) to dismiss the complaint/petition insofar as asserted against each of them.
ORDERED that the notice of appeal from so much of the order dated June 4, 2014, as granted those branches of the defendants/respondents' separate motions which were to dismiss the cause of action seeking relief pursuant to CPLR article 78 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order dated June 4, 2014, is modified, on the law, by deleting the provision thereof granting those branches of the defendants/respondents' separate motions which were to dismiss the cause of action seeking relief pursuant to CPLR article 78, and substituting therefor a provision denying those branches of the motions; as so modified, the order dated June 4, 2014, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs/petitioners, payable by the defendants/respondents appearing separately and filing separate briefs.
The plaintiffs/petitioners, Wendy Hilburg and Realty Guild, LLC (hereinafter the appellants), own commercial property in Mamaroneck situated on West Boston Post Road, which is a state highway. In December 2010, the defendant/respondent New York State Department of Transportation (hereinafter the
DOT) issued an...
To continue reading
Request your trial
-
Kushner v. Farina
...of New York Health and Hosps. Corp., 233 A.D.2d 224, 225, 649 N.Y.S.2d 714 (1st Dep't 1996) ; Hilburg v. New York State Dept. of Transp., 138 A.D.3d 1062, 1063–64, 31 N.Y.S.3d 126 (2d Dep't 2016). Respondents must show that they mailed the determination to petitioner via their regular maili......
-
Kaneev v. City of N.Y. Envtl. Control Bd.
...the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217[1] ; see Hilburg v. New York State Dept. of Transp., 138 A.D.3d 1062, 1063, 31 N.Y.S.3d 126 ). "There are two requirements for fixing the time when agency action is deemed final and binding. ‘First, th......