William Court-White Hill Road Homeowners Ass'n., Inc. v. New York State Com'r of Mental Retardation and Developmental Disabilities

• Decision Date: 02 May 1994
• Docket Number: COURT-WHITE
• Citation: 161 Misc.2d 552,613 N.Y.S.2d 322
• Parties: WILLIAMHILL ROAD HOMEOWNERS ASSOCIATION, INC., Petitioner, v. NEW YORK STATE COMMISSIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Office of Mental Retardation and Developmental Disabilities, Westchester Developmental Disabilities Services Office, Comptroller of the State of New York, Trilliam Corp. and Frank Cimino, Respondents.
• Court: New York Supreme Court

Page 322

613 N.Y.S.2d 322

161 Misc.2d 552

WILLIAM COURT-WHITE HILL ROAD HOMEOWNERS ASSOCIATION, INC., Petitioner, v. NEW YORK STATE COMMISSIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Office of Mental Retardation and Developmental Disabilities, Westchester Developmental Disabilities Services Office, Comptroller of the State of New York, Trilliam Corp. and Frank Cimino, Respondents.

Supreme Court, Westchester County.

May 2, 1994.

John C. Wirth, Jr., White Plains, for petitioner.

G. Oliver Koppell, Atty. Gen., Edward J. Curtis, Jr., Asst. Atty. Gen., New York City, for Government respondents.

Gary A. Friedman, Oxman Geiger Natale & Tulis, Hawthorne, for respondents Trilliam and Cimino.

JOAN B. LEFKOWITZ, Justice.

Facts And Procedural Background

Petitioner, a not-for-profit corporation and homeowners' association, objects to the lease of residential facilities at William Court in the Town of Yorktown for use by eight mentally retarded persons. Members of the petitioner participated in public hearings on site selection for the subject community residence. One contention advanced by petitioner's members and others at the hearing and here is that in considering whether there was an overconcentration of community residential facilities in the area (Mental Hygiene Law § 41.34[c][1][C], [c][4], [c][5] the government respondents had to consider an existing community facility located on Stoney Street. The government respondents' position is that since the proposal for William Court was temporary and in lieu of the Stoney Street facility, which was to be demolished and rebuilt, the latter facility was not an existing facility within the meaning of section 41.34 of the Mental Hygiene Law.

Westchester Development Disabilities Services Office ("WDDSO") purchased residential premises on Stoney Street in the Town of Yorktown in 1990 to continue the use of the premises as a community residential facility under section 41.34 of the Mental Hygiene Law and to continue occupancy there of ten mentally disabled residents. A community residential facility for a one-family residence can house one to fourteen developmentally disabled persons (14 NYCRR 686.99[l], [o]. Thereafter WDDSO decided that it was necessary to raze and renovate the Stoney Street facility and selected William Court, for temporary relocation of eight patients.

The William Court site was the subject of a mortgage foreclosure proceeding where a subordinate lienholder, Beneficial Homeowners Service Corporation ("Beneficial") initially submitted the highest bid at a judicially authorized auction, which bid was rejected by the referee for failure to present certified checks for the down payment, resulting in a second bidding at which respondent Frank Cimino was declared the successful purchaser. Beneficial moved to vacate that sale which motion was denied on February 14, 1993 by Justice Nastasi. Empire of America Credit Corp. v. Johnson, Supreme Ct. Westchester, Index No. 7049/92. Beneficial has appealed that determination. Apparently Mr. Cimino was acting on behalf of respondent Trilliam Corp. which took title to the William Court property on July 30, 1993, by deed from the referee. Thereafter, in September 1993 Trilliam Corp. entered into a lease with WDDSO.

WDDSO notified appropriate persons that it intended to develop a community residential facility at William Court. The Town Board of the Town of Yorktown and members of petitioner subsequently objected to the William Court site. Pursuant to statute (Mental Hygiene Law § 41.34) respondent Office of Mental Retardation and Developmental Disabilities ("OMRDD") scheduled and conducted a hearing on the Town's objections. On January 18, 1994, the respondent Commissioner of Mental Retardation and Developmental Disabilities rendered a written decision, rejecting the Town's objections and upholding WDDSO's site selection of William Court. The commissioner ruled that the statute did not require him to consider the to be abandoned Stoney Street facility in determining if there was an overconcentration of facilities in the area. He also ruled in the alternative that if the Stoney Street facility were to be considered, no overconcentration existed.

On or about January 28, 1994 the Town of Yorktown commenced a CPLR Article 78 proceeding against OMRDD and WDDSO to annul the Commissioner's determination (Town of Yorktown v. State of New York, et al, Supreme Court, Westchester Index No. 1423/94), which is pending before Justice Nicolai.

By order to show cause dated and served on February 22, 1994, the petitioner commenced the instant proceeding. A temporary restraining order was denied. The petition asserts four causes of action. The first two causes of action are in the nature of a CPLR Article 78 proceeding to annul the Commissioner's determination as arbitrary and capricious and as not supported by substantial evidence. The third cause of action seeks provisional relief under section 123-e of the State Finance Law, restitution of funds spent and is in the nature of a taxpayer's action for wrongful expenditure of state funds. The fourth cause of action is a federal civil rights claim (42 U.S.C. § 1983), alleging that the aforementioned wrongful expenditures are under color of law. The order to show cause seeks a preliminary injunction against further expenditures at the William Court site.

The Commissioner, OMRDD and WDDSO cross-move to consolidate this proceeding with the Town of Yorktown proceeding and to dismiss the petition for failure to state a cause of action and, in addition, that the first and second causes of action are time barred pursuant to the thirty day period of limitation set forth in Mental Hygiene Law § 41.34(d). Petitioner does not object to a joint trial of the separate proceedings.

While this matter was pending the Court was advised at oral argument that eight of the residents formerly at the Stoney Street facility had been moved to William Court and that the Stoney Street facility was in the process of being torn down. The petitioner's renewed application for a temporary restraining order, mandatory in nature, was denied from the bench. The proceeding was adjourned until April 29, 1994 at counsel's request to afford counsel time to submit further affidavits and briefs.

Pursuant to CPLR 7804(g) where a question of substantial evidence is raised, emanating from a hearing where evidence was taken pursuant to statute (CPLR 7803[4], as here (Mental Hygiene Law § 41.34), "the court shall first dispose of such other objections as could terminate the proceeding ... without reaching the substantial evidence issue" and then, after ruling on the objections if the matter is not terminated, transfer the balance of the proceeding to the Appellate Division (CPLR 7804[g].

[The Court discussed the Statute of Limitations generally as to CPLR Article 78 proceedings and more specifically the requirement in section 41.34(d) of the Mental Hygiene Law that an Article 78 proceeding to review the Commissioner's determination must be commenced within 30 days of said determination.]

The Commissioner issued his determination on January 18, 1994. The instant proceeding was commenced on February 22, 1994, thirty-five days after the determination. Clearly, it seems that the first and second causes of action must be dismissed as untimely.

However, petitioner claims that by filing the proposed order to show cause on February 17, 1994, the proceeding is timely.

Statute of Limitations--Commencement By Filing

The question arises whether petitioner met the statute of limitations under the commencement by filing provisions of the CPLR. The Court has written on various aspects of the 1991 and 1992 amendments (L.1992, ch. 216, L.1992, ch. 55, L.1991, ch. 166) to the CPLR which essentially changed New York's commencement of an action or special proceeding procedures from service on the parties to filing first, then service within certain time frames. Kleinman v. Marshall, 158 Misc.2d 640, 601 N.Y.S.2d 665 (Supreme Ct.Rockland 1993); Slutzky v. Aron Estates, 157 Misc.2d 749, 597 N.Y.S.2d 997 (Supreme Ct.Rockland 1993); Metropolitan Ins. v. Roosevelt, 154 Misc.2d 336, 593 N.Y.S.2d 923 (Supreme Ct.Rockland 1993).

Prior to the effective date of most of the commencement by filing provisions (i.e. January 1, 1992 except for transitional phase of July 1, 1992 to December 31, 1992), CPLR 304 provided that an action is commenced by service of a summons and a special proceeding by service of a notice of petition or order to show cause. The statute of limitations ran from accrual of the cause of action until it was interposed. CPLR 203(a). The provisions governing actions (former CPLR 304 and 305[b] required service of summons with notice or with complaint (Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316 [1984], the provisions governing special proceedings in general (CPLR 403[b], [c] required the service of a notice of petition or order to show cause and a petition (Perdum v. Michael, 193 A.D.2d 440, 597 N.Y.S.2d 326 [1st Dep't 1993]; Matter of Campisi v. Scelba, 166 A.D.2d 442, 560 N.Y.S.2d 495 [2d Dep't 1990] and the provision applicable to CPLR Article 78 proceedings (CPLR 7804[c] required the service of a notice of petition or order to show cause and a petition. Long Is. Citizens v. Nassau, 165 A.D.2d 52, 565 N.Y.S.2d 852 [2d Dep't 1991]. The cited cases in each instance held that the failure to serve the required papers was jurisdictional and the statute of limitations continued to run as a claim was not interposed where only a bare summons or notice of petition were served. However, it has been held that a claim was interposed on the filing of a notice of petition under former CPLR 203 (b)(5) where the notice clearly described the administrative action contested and set forth the grounds for relief. Matter of Shumsky, 192 A.D.2d 350, 596 N.Y.S.2d 21 (1st Dep't 1993). There, the Court...