In the Matter of Dandomar Co. Llc v. Town of Pleasant Valley Town Bd.

• Decision Date: 31 May 2011
• Citation: 2011 N.Y. Slip Op. 04673,86 A.D.3d 83,924 N.Y.S.2d 499
• Parties: In the Matter of DANDOMAR COMPANY, LLC, appellant,v.TOWN OF PLEASANT VALLEY TOWN BOARD, et al., respondents.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 83

924 N.Y.S.2d 499

2011 N.Y. Slip Op. 04673

In the Matter of DANDOMAR COMPANY, LLC, appellant,

v.TOWN OF PLEASANT VALLEY TOWN BOARD, et al., respondents.

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

May 31, 2011.

Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Allan B. Rappleyea of counsel), for appellant.Gellert & Klein, P.C., Poughkeepsie, N.Y. (Lillian S. Weigert of counsel), for respondents.MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ.DILLON, J.P.

Petitions seeking the remedy of mandamus and prohibition under CPLR article 78 are subject to a four-month statute of limitations ( see CPLR 217; Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 568, 528 N.Y.S.2d 21, 523 N.E.2d 297; Matter of Home Depot U.S.A., Inc. v. Town Bd. of the Town of Southeast, 70 A.D.3d 824, 825, 895 N.Y.S.2d 142). Actions or proceedings involving the abandonment of highways are subject to a one-year statute of limitations ( see Highway Law § 205[2] ). Here, we address whether a petitioner seeking to annul a municipality's certificate of abandonment for a highway must commence the proceeding within four months, as directed by CPLR 217(1), or within one year, as directed by Highway Law § 205(2). Our discussion addresses the distinction between proceedings seeking relief pursuant to CPLR article 78 and actions for declaratory judgments, and the manner in which conflicts between general and specific statutes should be resolved.

This appeal involves the municipal abandonment of a segment of Tyrell Road, located in the Town of Pleasant Valley, Dutchess County. Tyrell Road is 2.65 miles long. A center 1.17–mile segment (hereinafter the center segment) is unpaved and is bordered on each side by a nature preserve owned by Rockefeller University, which also owns fee title underneath the center segment.

In 1986, Rockefeller University requested that the Town abandon the center segment, at which time no action was taken. It renewed the request in 1997, and a public hearing was conducted on April 9, 1997. Discussion at the public hearing focused upon the failure of Tyrell Road to meet State standards and the fact that local residents used Tyrell Road for recreational purposes. The issue was deferred for further research. At some other time during the 1990s, the Town erected yellow “road closed” signs near both ends of the center segment and a “dead end” sign at the south end of the road. Although the Town continued to report to the New York State Department of Transportation that the full 2.65 miles of Tyrell Road was among the Town's highway inventory through at least 1999, the Town's Highway Superintendent maintained that the center segment had not been municipally maintained since 1980.

On April 9, 2008, the Town Board of the Town of Pleasant Valley (hereinafter the Town Board), without any further public hearing, passed a resolution authorizing the execution of a certificate of abandonment for the center segment. The resolution noted that the center segment had not been traveled or used as a highway for a six-year period, and was deemed abandoned under Highway Law § 205(1). The resolution, citing 6 NYCRR 617.5(c)(19), also determined that an abandonment was a Type II action under the State Environmental Quality Review Act (ECL article 8; hereinafter SEQRA) requiring no environmental review. On April 10, 2008, a certificate of abandonment was filed with the Town Clerk, pursuant to the Town Board's resolution.

On April 25, 2008, the petitioner, Dandomar Company, LLC (hereinafter Dandomar), purchased the first of two parcels of property located at one of the paved ends of Tyrell Road. On October 2, 2008, Dandomar purchased a second parcel of property fronting the same paved portion of Tyrell Road. Neither parcel is located at the unpaved center segment. However, with the abandonment of the center segment, Dandomar's two parcels of property may only be accessed from the Taconic State Parkway.

Dandomar commenced this proceeding by filing a notice of petition and petition on April 6, 2009. The petition alleged six causes of action. The first cause of action alleged that, without a further public hearing, there was no support for the Town Board's finding that the center segment had been unused and was abandoned during the preceding six years. The second cause of action alleged that any non-use of the center segment was occasioned by the Town's placement of “road closed” and “dead end” signs, and the Town should be estopped from making a finding of abandonment based on those actions. The third cause of action alleged that the end points of the abandoned section are unclear. The fourth cause of action alleged that, since commercial vehicles are not permitted to travel on the Taconic State Parkway, they are unable to access the Dandomar properties. The fifth cause of action alleged that the Town failed to notify the New York State Department of Environmental Conservation of the abandonment and its effect upon a nearby state park. The sixth cause of action alleged that the Town failed to comply with SEQRA.

Dandomar's notice of petition sought two principal forms of relief that were “pursuant to article 78 of the Civil Practice Laws and Rules and § 205(1) of the Highway Law.” The first was for an annulment and vacatur of the certificate of abandonment for the center segment. The second was to direct the Town's Superintendent of Highways to “maintain, keep in repair and free from obstruction the entire 2.65 miles of Tyrell Road.”

The Town moved to dismiss Dandomar's petition on the ground that, inter alia, the proceeding had been commenced beyond the four-month statute of limitations of CPLR 217(1) and, therefore, was time-barred. In opposition, Dandomar argued that the proceeding was timely, as it was commenced within one year as permitted by Highway Law § 205(2).¹

In the judgment appealed from, dated June 25, 2009, the Supreme Court, Dutchess County, held that Dandomar's proceeding was brought pursuant to CPLR article 78 and, therefore, was governed exclusively by the four-month statute of limitations defined in CPLR 217. The Supreme Court further reasoned that, while the one-year statute of limitations under Highway Law § 205(2) could apply to declaratory judgment actions or other actions outside the purview of CPLR article 78, there was no authority for applying the Highway Law's one-year limitations period to a CPLR article 78 proceeding, as here.

On appeal, Dandomar argues that the main thrust of its proceeding is not pursuant to CPLR article 78, and that the Supreme Court should have treated the proceeding as one seeking a declaratory judgment subject to a longer statute of limitations. For reasons set forth below, we convert the first five causes of action asserted pursuant to CPLR article 78 into an action pursuant to Highway Law § 205 for a declaratory judgment ( see CPLR 103 [c]; Matter of Jasser v. Allstate Ins. Co., 77 A.D.3d 751, 752, 909 N.Y.S.2d 736) and, based on such conversion, we modify.

Highway Law § 205(1) provides, in pertinent part, that “every highway that shall not have been traveled or used as a highway for six years shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way” ( see Curtis v. Town of Galway, 50 A.D.3d 1370, 1371, 858 N.Y.S.2d 394). The statute directs that, upon the abandonment of highways and rights of way, the highway superintendent shall, upon the written consent of a majority of the town board, file a signed writing in the office of the town clerk describing the highway or right-of- way that has been abandoned, and upon such filing, the highway or right-of-way is thereupon discontinued ( see Highway Law § 205[1] ).

The parties do not contest the plain language of Highway Law § 205(2) and CPLR 217(1) relative to statutes of limitations.

Highway Law § 205(2) provides, in pertinent part, that “[a]ny action or proceeding involving the abandonment or qualified abandonment of a highway made pursuant to this section must, in the case of abandonment, be commenced within one year from the date of filing by the town superintendent” of a certificate of abandonment.

CPLR 217(1) provides, in pertinent part, that “[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner (CPLR 217[1] ).”

While the four-month time limitation contained in CPLR 217(1) is not applicable where the law authorizing the proceeding provides for a shorter time ( see CPLR 217[1]; see generally Sevenson Hotel Assoc. v. Stranges, 262 A.D.2d 957, 692 N.Y.S.2d 880 [pursuant to General City Law § 38, a proceeding against a city officer, department, board, or bureau must be brought within 30 days of the filing of the decision]; Matter of Lebow v. Village of Lansing Planning Bd., 151 A.D.2d 865, 866, 542 N.Y.S.2d 840 [pursuant to Village Law § 7–740, a procedure to review a planning board decision must be commenced within 30 days after it is filed with the planning board]; Matter of Save the Pine Bush v. Planning Bd. of the City of Albany, 83 A.D.2d 741, 742, 442 N.Y.S.2d 602 [the 30–day limitations period of General City Law § 38 applies only to planning board determinations]; Matter of Niegocki v. Town of Brookhaven, 5 A.D.2d 999, 173 N.Y.S.2d 323 [pursuant to Town Law § 195(2), a proceeding to review a town board determination must be commenced within 30 days from the date of the recording of a certified copy of the determination with the clerk of the county] ), the statute contains no language subordinating it to any “longer” limitations periods contained in other laws.

Nevertheless, CPLR 201 provides that “[a]n action ... must be commenced within the time specified in this article...