In the Matter of James Agoglia v. Benepe

• Decision Date: 17 May 2011
• Citation: 2011 N.Y. Slip Op. 04242,924 N.Y.S.2d 428,84 A.D.3d 1072
• Parties: In the Matter of James AGOGLIA, appellant, et al., petitioners,v.Adrian BENEPE, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1072

924 N.Y.S.2d 428

2011 N.Y. Slip Op. 04242

In the Matter of James AGOGLIA, appellant, et al., petitioners,

v.Adrian BENEPE, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.

King & King, LLP, Long Island City, N.Y. (Peter M. Kutil and Brendan Hennessey of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Scott Schorr of counsel), for respondents Adrian Benepe and the New York City Department of Parks and Recreation.Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek, Monica Wagner, Norman Spiegel, and Janice Dean of counsel), for respondents Denise M. Sheehan and New York State Department of Environmental Conservation.A. GAIL PRUDENTI, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

Motion by the respondents Adrian Benepe and New York City Department of Parks and Recreation for leave to reargue an appeal from an order and judgment (one paper) of the Supreme Court, Queens County, dated March 13, 2009, which was determined by decision and order of this Court dated October 26, 2010, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

ORDERED that the branch of the motion which is for leave to reargue is granted; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that, upon reargument, the decision and order of this Court dated October 26, 2010 ( Matter of Agoglia v. Benepe, 77 A.D.3d 927, 910 N.Y.S.2d 126), is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents to remove certain sand dunes from public park land and a beach in Belle Harbor, the petitioner James Agoglia appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Taylor, J.), dated March 13, 2009, as granted the motion of Adrian Benepe and the New York City Department of Parks and Recreation to dismiss the petition pursuant to CPLR 3211(a) and dismissed the proceeding. Presiding Justice Prudenti has been substituted for former Justice Santucci (see 22 NYCRR 670.1[c] ).

ORDERED that the order and judgment is modified, on the law, (1) by adding a provision thereto converting the proceeding to an action to abate and recover damages for a public nuisance, deeming the notice of petition to be the summons, and deeming the petition to be the complaint ( see CPLR 103[c] ), (2) by deleting the provision thereof granting that branch of the motion which was to dismiss the third cause of action pursuant to CPLR 3211(a) insofar as asserted by the appellant, and substituting therefor a provision granting that branch of the motion only to the extent of dismissing any claim to recover damages incurred more than one year and 90 days prior to the commencement of this proceeding, and (3) by deleting the provision thereof granting that branch of the motion which was to dismiss so much of the first cause of action as sought mandamus to review a determination of the New York City Department of Parks pursuant to CPLR 3211(a)(3), and substituting therefor a provision granting that branch of the motion which was to dismiss so much of that cause of action as premature; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Queens County, for the entry of an order amending the caption accordingly.

The petitioner James Agoglia (hereinafter the petitioner) lives adjacent to Rockaway Beach in Belle Harbor, Queens. In or around March 1997, the New York City Department of Parks and Recreation (hereinafter NYC Parks) constructed dunes on the public beach at Beach 138th to Beach 142nd. In June 2006 the petitioner requested that NYC Parks remove the dunes, challenging the process by which they were initially constructed, and stating that the dunes had grown substantially in size such that they blocked beach access at the subject streets and had become a safety hazard. In a letter dated July 12, 2006, the Commissioner of NYC Parks responded that the New York State Department of Environmental Conservation (hereinafter the DEC) had recently inspected the dunes and was in the process of preparing a report. The letter also advised that NYC Parks planned to meet with the DEC after the report was issued and, until a resolution was reached between the agencies, no action would be taken on the dunes. In a letter dated August 9, 2006, NYC Parks informed the petitioner that the DEC report was expected within weeks, and that it would be imprudent to act without an understanding of the DEC's position and recommendations.

The petitioners then commenced this proceeding, inter alia, to review NYC Parks' determination and to compel NYC Parks and the DEC to remove the dunes. The respondents moved to dismiss the petition on several grounds. The Supreme Court dismissed the petition on the ground of lack of standing. The petitioner James Agoglia appeals.

The Supreme Court erred in determining that the petitioner lacked standing to bring this proceeding ( see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 306, 890 N.Y.S.2d 405, 918 N.E.2d 917; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773–775, 570 N.Y.S.2d 778, 573 N.E.2d 1034; Matter of Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 414, 515 N.Y.S.2d 418, 508 N.E.2d 130; Matter of Duke & Benedict v. Town of Southeast, 253 A.D.2d 877, 678 N.Y.S.2d 343). However, we find that dismissal of many of the petitioner's claims was proper on alternative grounds under CPLR 3211(a) ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241).

The second cause of action, asserted against the DEC, should have been dismissed for failure to state a cause of action upon which relief may be granted. “[M]andamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial” ( New York Civ. Liberties Union v. State of New York, 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947). Enforcement of environmental permit regulations involves “questions of judgment, discretion and the allocation of the resources and priorities which are inappropriate for resolution in the judicial arena” ( Matter of Kerness v. Berle, 85 A.D.2d 695, 696, 445 N.Y.S.2d 484, affd. 57 N.Y.2d 1042, 457 N.Y.S.2d 786, 444 N.E.2d 36; see Matter of Kroll v. Village of E. Hampton, 293 A.D.2d 614, 741 N.Y.S.2d 98; Matter of Dyno v. Village of Johnson City, 261 A.D.2d 783, 690 N.Y.S.2d 325).

The remainder of the petition is asserted against NYC Parks, which moved to dismiss the petition on the further grounds of untimeliness, laches, and failure to state a cause of action. That branch of NYC Parks' motion which was to dismiss the fifth through eighth causes of action for failure to state a cause of action should have been granted, since the petitioners failed to oppose that branch of the motion ( see Sanchez v. Village of Ossining, 271 A.D.2d 674, 707 N.Y.S.2d 866; Rivera v. Pocono Whitewaters Adventures, 241 A.D.2d 381, 660 N.Y.S.2d 723).

The fourth cause of action alleging violations of the New York City Charter and permit regulations in the initial construction of the dunes in 1997 should have been dismissed as time-barred. The determination to construct the dunes in the first instance was final and binding, at the latest, when the dunes were erected. Accordingly, challenges to the procedures utilized in making that determination are time-barred ( see CPLR 217[1], 7801[1]; Matter of Douglaston & Little Neck Coalition v. Sexton, 145 A.D.2d 480, 535 N.Y.S.2d 634).

So much of the first cause of action as sought mandamus to compel NYC Parks to remove the dunes should have been dismissed for failure to state a cause of action, since “mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial” ( New York Civ. Liberties Union v. State of New York, 4 N.Y.3d at 184, 791 N.Y.S.2d 507, 824 N.E.2d 947).

So much of the first cause of action as sought mandamus to review NYC Parks' determination not to remove the dunes should have been dismissed as premature. A CPLR article 78 proceeding to review a determination of a public body or officer must be brought within four months of the date which the determination is “final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]; Matter of Carter v. State of N.Y., Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270, 716 N.Y.S.2d 364, 739 N.E.2d 730). The Court of Appeals has identified two...