Lettko v. New York State Dept. of Health

• Decision Date: 15 July 1993
• Citation: 195 A.D.2d 781,600 N.Y.S.2d 364
• Parties: In the Matter of Helen LETTKO et al., Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 364

600 N.Y.S.2d 364

195 A.D.2d 781

In the Matter of Helen LETTKO et al., Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 15, 1993.

McGovern, Kehoe, Mitchell & Bauer (Peter R. Kehoe, of counsel), Troy, for appellants.

Pattison, Sampson, Ginsberg & Griffin, P.C. (Gerald H. Katzman, of counsel), Troy, for Upper Hudson Planned Parenthood, respondent.

Robert Abrams, Atty. Gen. (Patrick Barnett-Mulligan, of counsel), Albany, for New York State Dept. of Health and others, respondents.

Hiscock and Barclay (Theresa Atkins, of counsel), Albany, for Health Systems Agency of Northeastern NY Inc., respondent.

Before WEISS, P.J., and MIKOLL, CREW, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeal from a judgment of the Supreme Court (Travers, J.), entered May 27, 1992 in Rensselaer County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition as untimely.

In 1990, respondent Upper Hudson Planned Parenthood (hereinafter UHPP) applied to respondent Department of Health (hereinafter DOH) pursuant to Public Health Law article 28 for approval to add abortion services at its facility in the City of Troy, Rensselaer County. While various public meetings were held in connection with the application review process whereat petitioner Helen Lettko, a Troy resident, and petitioner Mary Christa Cummings, a resident of the adjacent City of Watervliet, Albany County, among others, voiced opposition, ultimately the application was approved. Conditional approval issued from DOH's central office in Albany on December 20, 1990. Thereafter, UHPP submitted the requested documentation required for final approval to both DOH's central office and the Troy regional office. By letter dated January 29, 1991, DOH's regional office advised UHPP that its submissions satisfied the required conditions and that it could "proceed to initiate the operation of abortion services at the Troy site, effective January 29, 1991". The letter further provided that pending receipt of a revised operating certificate, "this letter constitutes your authorization to provide this new service in Troy". A subsequent February 4, 1991 letter from DOH's central office confirmed that all conditions were met effective January 29, 1991.

Contending that DOH failed to comply with the procedures set forth in Public Health Law § 2803 and 10 NYCRR part 710 before issuing approval of the application, on May 29, 1991, exactly four months after issuance of the January 29, 1991 letter, petitioners delivered a copy of the notice of petition and petition for CPLR article 78 relief to the Albany County Sheriff. Respondents actually were served on May 30, 1991 and thereafter moved to dismiss the petition on grounds of untimeliness and lack of standing. Supreme Court agreed that the proceeding was untimely, reasoning that the Statute of Limitations accrued on January 29, 1991, expired on May 29, 1991 and that the 60-day extension contained in CPLR former 203(b)(5) (as amended by L.1992, ch. 55 and L.1992, ch. 216) achieved by delivering a copy of the process to the Sheriff was inapplicable to CPLR article 78 proceedings. Because of this conclusion, the court did not reach the issue of standing. Petitioners appeal. We affirm, but for reasons other than those stated by Supreme Court.

On the issue of timeliness, we agree with Supreme Court that the January 29, 1991 DOH regional office letter, not the February 4, 1991 correspondence, constituted the final and binding determination on this matter within the meaning of CPLR 217 and cases construing it (see, Bitondo v. State of New York, 182 A.D.2d 948, 951, 582 N.Y.S.2d 819; see also, Matter of Owners Comm. on Elec. Rates v. Public Serv. Commn. of State of N.Y., 76 N.Y.2d 779, 559 N.Y.S.2d 957, 559 N.E.2d 651, rev'g on dissenting op'n below 150 A.D.2d 45, 545 N.Y.S.2d 416; Matter of Edmead v. McGuire, 114 A.D.2d 758, 759, 494 N.Y.S.2d 712, affd, 67 N.Y.2d 714, 499 N.Y.S.2d 934, 490 N.E.2d 853). Accordingly, we likewise agree that the four-month limitation period began to run on January 29, 1991 and expired on May 29, 1991, thus rendering the instant proceeding untimely absent applicability of CPLR former 203(b)(5) (see, General Construction Law § 30; Beechwood Sanitarium v. Axelrod, 79 A.D.2d 1084, 435 N.Y.S.2d 819, lv. denied, 54 N.Y.2d 601, 442 N.Y.S.2d 1027, 425 N.E.2d 901, appeal dismissed, 454 U.S. 959, 102 S.Ct. 496, 70 L.Ed.2d 374). On this subject, however, we disagree with Supreme Court's finding that petitioners are not entitled to the benefit of this statutory extension.

Initially, it is to be noted that due to the recent changes in the manner of commencing civil actions and proceedings in the Supreme and County Courts (L.1992, ch. 216), the CPLR 203(b) tolls are no longer available for cases, such as CPLR article 78 proceedings, which are commenced in those courts (see generally, Alexander, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C203:2A [1993 Pocket Part], at 14). Accordingly, this issue largely is of historical interest only except in those few remaining cases such as this which were commenced prior to the effective date of the 1992 amendments. Nonetheless, following other courts which have had occasion to address this subject, including prior dictum from this court (see, Treadway v. Town Bd. of Town of Ticonderoga, 163 A.D.2d 637, 558 N.Y.S.2d 686), we find that the 60-day extension provided for in CPLR former 203(b)(5) does and should apply to CPLR article 78 proceedings in general (see, Matter of Shumsky v. New York City Loft Board, 192 A.D.2d 350, 596 N.Y.S.2d 21; Matter of Laureano v. Grimes, 179 A.D.2d 602, 603, 579 N.Y.S.2d 357; Matter of Long Is. Citizens Campaign v. County of Nassau, 165 A.D.2d 52, 565 N.Y.S.2d 852; Matter of Medina v. Perales, 138 Misc.2d 1010, 525 N.Y.S.2d 991). In so doing we note that our prior decision in Matter of Zaretski v. Tutunjian, 133 A.D.2d 928, 521 N.Y.S.2d 116, because it involved an Election Law proceeding and the brief Statutes of Limitation associated therewith, is factually and legally distinguishable (see, Matter of Long Is. Citizens Campaign v. County of Nassau, supra, 165 A.D.2d at 55, 565 N.Y.S.2d 852).

While we thus conclude that the proceeding was timely, in our view an affirmance nonetheless is in order on the ground that petitioners lack standing. Initially, we observe that contrary to petitioners' assertions, our prior decision in Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 109 A.D.2d 140,...