| Matter of Letourneau v Town of Berne |
| 2008 NY Slip Op 08395 [56 AD3d 880] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Ann Letourneau, Appellant, v Town of Berne et al.,Respondents. |
—[*1] William J. Conboy, County Attorney, Albany, for Town of Berne, respondent. Lynch & Hetman, P.L.L.C., Albany (Peter A. Lynch of counsel), for Victor Procopio,respondent.
Kane, J. Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered August 3,2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed thepetition as time-barred.
In the winter of 2001, respondent Town of Berne gave notice to the owner of a certain parcelof property that the residence upon it had collapsed and created an unsafe condition. RespondentVictor Procopio purchased the property and remedied the unsafe condition, leading the TownBoard to grant him permission to commence construction of a new residence on the property.The town building and zoning administrator issued Procopio a building permit in October 2001and renewed it several times, the last time in April 2007.
Petitioner purchased an adjacent lot in 2004. In November 2006, she noticed foundationmarkers on Procopio's property and began investigating the situation. Petitioner's counsel sent aletter to the Town in December 2006 requesting recision of the building permit on the basis thatit was issued in violation of town, county and state laws. The Town did not respond to thisdemand.[*2]
In June 2007, petitioner commenced this proceedingseeking to compel the Town to rescind the building permit and prohibit the issuance of futurebuilding permits until certain conditions were met. Procopio answered the petition and the Townfiled objections in point of law. Supreme Court determined that the Town's action was final whenpetitioner sent the letter in December 2006 and, thus, the petition was time-barred. Petitionerappeals. While we apply different reasoning than Supreme Court, we agree that the petition mustbe dismissed.
A CPLR article 78 proceeding must be commenced within four months of the time that thedetermination to be reviewed becomes final and binding—for a proceeding in the nature ofcertiorari to review—or within four months of the agency's or official's refusal of theparty's demand for the performance of a mandatory, ministerial act—for a proceeding inthe nature of mandamus (see CPLR 217 [1]; see also Matter of Bottom v Goord,96 NY2d 870, 872 [2001]; Matter ofHeck v Keane, 6 AD3d 95, 96 [2004]).[FN*]Petitioner asserts that her proceeding is in the nature of mandamus to compel the Town to rescindthe building permit. In reality, petitioner is seeking review of the issuance and renewals of thebuilding permit, alleging that it was issued and renewed in violation of town, county and statelaws. Allowing this proceeding to be couched in terms of mandamus would allow any party tobegin anew the running of the statute of limitations in a certiorari matter by demanding recisionof the original determination the party wishes to challenge. We cannot countenance this attemptto create an end run around the statute of limitations. A challenge to "the issuance [or renewal] ofa building permit accrues when the permit is issued [or renewed] and does not constitute acontinuing wrong" (Kaufman v Village of Mamaroneck, 286 AD2d 666, 667 [2001],lv denied 98 NY2d 602 [2002]; see Greco v Incorporated Vil. of Freeport, 223AD2d 674, 674 [1996]). Thus, we must dismiss, as time-barred, petitioner's challenge to all butthe April 2007 renewal of Procopio's building permit.
A proceeding to review the April 2007 determination cannot stand. The proper method tochallenge a decision of the building and zoning administrator's issuance of a building permit is anadministrative appeal to the zoning board of appeals (see Town Law § 267-a [4]).Based upon petitioner's failure to pursue this administrative remedy, she is foreclosed fromraising such a challenge in court (see Matter of Hays v Walrath, 271 AD2d 744, 745[2000]). Hence, the only timely portion of this proceeding must also be dismissed.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Petitioner's reliance onMarcus v Village of Mamaroneck (283 NY 325 [1940]) is misplaced, since that actionwas for an injunction against the property owner, not a proceeding against a municipality in thenature of mandamus or certiorari.