| Matter of Lagin v Village of Kings Point Comm. of ArchitecturalReview |
| 2009 NY Slip Op 03734 [62 AD3d 709] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of Herbert Lagin, Respondent, v Village ofKings Point Committee of Architectural Review, Appellant. |
—[*1] R. Kenneth Jewel, New York, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Village ofKings Point Committee of Architectural Review dated December 13, 2006, which approved thebuilding design of nonparties Dario Zar and Esther Zar, the Village of Kings Point Committee ofArchitectural Review appeals, as limited by its brief, from so much of an order and judgment(one paper) of the Supreme Court, Nassau County (Parga, J.), entered September 21, 2007, asgranted the petitioner's cross motion to withdraw the petition as premature, without prejudice, onthe ground that the determination was not final.
Ordered that the order and judgment is reversed insofar as appealed from, on the law, withcosts, and the petitioner's cross motion to withdraw the petition as premature, without prejudice,is denied.
The petitioner commenced this proceeding pursuant to CPLR article 78 to challenge adetermination of the Village of Kings Point Committee of Architectural Review (hereinafter theARC), which approved a building design for a single-family dwelling to be constructed onproperty adjacent to property owned by the petitioner. The ARC moved to dismiss theproceeding for failure to join the property owners as necessary parties, and the petitionercross-moved to withdraw the petition as premature, without prejudice, on the ground that theARC determination was not final. The Supreme Court [*2]granted the ARC's motion and the petitioner's cross motion. TheARC appeals from so much of the order and judgment as granted the petitioner's cross motion.
Contrary to the Supreme Court's holding, the ARC's approval of the building design was afinal determination. "An agency action is final when the decisionmaker has arrived at a definitiveposition on the issue that inflicts an actual, concrete injury" (Matter of Jones v Amicone, 27 AD3d 465, 468 [2006] [internalquotation marks omitted]) which could not have been "prevented, significantly ameliorated, orrendered moot by further administrative action or by steps available to the complaining party"(id. at 468 [2006] [internal quotation marks omitted]; see Stop-The-Barge v Cahill, 1 NY3d 218, 223 [2003]; Matterof Essex County v Zagata, 91 NY2d 447, 453 [1998]; Church of St. Paul & St. Andrew vBarwick, 67 NY2d 510, 519 [1986]). Pursuant to applicable provisions of the Kings PointVillage Code in effect at the time of the ARC determination under consideration here, the ARChad exclusive authority to issue architectural approval of the plans for a proposed building, andno avenue of appeal was provided for aggrieved persons other than the applicant to review adetermination of the ARC (see Kings Point Village Code §§ 161-56,161-57, 161-59 [A]; § 161-61). Since the petitioner was precluded from other avenues ofreview, and because any subsequent determinations by other Village agencies with respect to thebuilding project would not have affected the ARC's approval of the building design, the ARCdetermination was final for the purposes of CPLR article 78 review and established the pointfrom which the applicable four-month statute of limitations began to run (see CPLR 217[a]; Matter of Sagaponack Homeowners Assn. v Chief Bldg. Inspector of Town ofSouthampton, 279 AD2d 579, 581 [2001]; see also Matter of Long Is. Pine BarrensSocy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608, 613 [1991]; Matter ofJones v Amicone, 27 AD3d at 467-469). Accordingly, the petitioner's cross motion shouldhave been denied. Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.