| Matter of Town of Olive v City of New York |
| 2009 NY Slip Op 05061 [63 AD3d 1416] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Town of Olive et al., Appellants, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel),for respondents.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered February29, 2008 in Ulster County, which, among other things, converted an action for declaratoryjudgment into an application pursuant to CPLR article 78 and granted respondents' cross motionfor, among other things, summary judgment dismissing the petition.
Pursuant to the Water Supply Act of 1905, respondent New York City Department ofEnvironmental Protection (hereinafter DEP) maintains and controls an infrastructure of 19reservoirs located in a 1,969-square-mile radius both north and west of respondent City of NewYork (hereinafter City) that supply water to approximately nine million residents of the state(see Environmental Protection and Utilities Law [Adminitrative Code of City of NY]§ 24-356; L 1905, chs 724, 314). One of these reservoirs—the AshokanReservoir—is located in the Towns of Olive and Hurley, Ulster County and is transversedby Monument Road.[FN1]Monument Road was constructed to replace the roadways lost as a result of the construction ofthe Ashokan Reservoir and the City is responsible for its maintenance, upkeep and control(see Environmental Protection and Utilities Law [Adminitrative Code of City of NY]§§ 24-302, 24-356; L 1905, ch 724, § 35).[*2]
In response to the events of September 11, 2001,Monument Road was closed for public use. In January 2002, it was reopened and remainedaccessible to all vehicular traffic until March 2003 when, as the result of a confidential riskassessment performed by the U.S. Army Corps of Engineers, DEP determined that it wasnecessary to permanently close Monument Road to all non-emergency traffic to insure theintegrity of the water in the reservoir and to safeguard it from possible sabotage.[FN2]The public was notified of the closure of Monument Road on March 20, 2003, and traffic in thearea was rerouted to State Route 28A, which essentially runs parallel to Monument Road.
Four years after the closure of the road—in March 2007—petitionerscommenced this lawsuit as an action seeking a declaration that the closure of Monument Roadwas in violation of the Water Supply Act of 1905, an order directing the immediate reopening ofMonument Road to all vehicular traffic and/or a judgment in the amount of $5,000,000 to pay forthe costs that would be incurred to restructure Route 28A to guarantee that it would be safe forvehicular traffic.[FN3]Petitioners moved for summary judgment on the amended complaint.[FN4]Respondents cross-moved for leave to amend the answer to include a defense that the action isbarred by the statute of limitations and, upon conversion of the action to a CPLR article 78proceeding, sought summary judgment dismissing the amended complaint as untimely.Petitioners opposed the relief sought by respondents and cross-moved for leave to further amendthe complaint to add a new cause of action.[FN5]Supreme Court granted respondents' motion for leave to amend the [*3]answer, converted the action to a CPLR article 78 proceeding andgranted respondents' motion for summary judgment dismissing the petition. Petitioners nowappeal.
Petitioners assert that Supreme Court erred by converting the action to a CPLR article 78proceeding and applying a four-month statute of limitations. We disagree. While a declaratoryjudgment action typically enjoys a six-year statute of limitations (see CPLR 213 [1];Trager v Town of Clifton Park, 303 AD2d 875, 876-877 [2003]), if a claim "could havebeen made in a form other than an action for a declaratory judgment and the limitations periodfor an action in that form has already expired, the time for asserting the claim cannot be extendedthrough the simple expedient of denominating the action one for declaratory relief" (NewYork City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]; see Solnickv Whalen, 49 NY2d 224, 229-230 [1980]). Looking at the substance of petitioners' claims,we agree with Supreme Court that "the relationship out of which the claim arises and the reliefsought" by petitioners more properly arises within the context of a CPLR article 78 proceeding(Solnick v Whalen, 49 NY2d at 229). In that regard, the amended complaint alleges thatrespondents' closure of Monument Road was arbitrary and capricious and a decision that did nothave a rational or legitimate basis (see CPLR 7803; Matter of Newton v Town of Middletown, 31 AD3d 1004, 1007[2006]; Schulz v Town Bd. of Town of Queensbury, 253 AD2d 956, 956-957 [1998],appeal dismissed 93 NY2d 847 [1999], lv denied 93 NY2d 808[1999]). In fact,petitioners acknowledge within the amended complaint that their claim "combines aspects of an[a]rticle 78 proceeding," inasmuch as it constitutes a challenge to respondents' administrativeactions resulting in the closure of Monument Road to vehicular traffic. As such, Supreme Courtproperly concluded that this matter should have been brought pursuant to CPLR article 78(see CPLR 217 [1]; Walton vNew York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]).
A CPLR article 78 proceeding must be commenced within four months after the challengeddetermination has become "final and binding" (CPLR 217 [1]) or, put another way, when itinflicts an " 'actual, concrete injury' " upon the petitioner (Walton v New York State Dept. ofCorrectional Servs., 8 NY3d at 194, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. ofCity of N.Y., 5 NY3d 30, 34 [2005]; see Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957, 960[2006]). There is no question that respondents' determination to close Monument Road becamefinal and binding on March 20, 2003, when it publicly announced on DEP's Web site thatMonument Road would be closed. As of that date, petitioners suffered a concrete injury as thedirect result of this decision, and this proceeding was properly dismissed because it wascommenced well after the four-month period allowed by the statute of limitations had expired.
Petitioners' remaining contentions not specifically addressed herein have been consideredand are without merit.
Cardona, P.J., Mercure, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: The Ashokan Reservoir suppliesapproximately 40% of the City's drinking water each day.
Footnote 2: The U.S. Army Corps ofEngineers determined that access to the Olive Bridge Dam and Ashokan Reservoir viaMonument Road left the Dam and Reservoir "particularly vulnerable" to a terrorist attack.
Footnote 3: As an alternative to thereopening of the road, petitioners suggested the implementation of an "EZ Pass system" forresidents of both towns so that they could have regular access and use of Monument Road.Petitioners assert that Route 28A is an unacceptable alternative to Monument Road because of itsconfiguration and because it substantially increases the time it takes local residents to travel inthe relevant area. In this regard, the record indicates that DEP has sought to reconstruct andimprove Route 28A so as to shorten the extended travel time caused by the closure of MonumentRoad, as well as address the construction and safety concerns raised by petitioners.
Footnote 4: Petitioners had filed, but notserved, an original complaint.
Footnote 5: Curiously, petitioners'amendment claims that if respondents' representations are true as to the threat of an attackpresented by the Ashokan Reservoir, the entire Reservoir should be immediately closed "so as toavert a terrorist attack." It also sought a judgment requiring the City to implement an evacuationplan in the event of such an attack on the Reservoir. However, the City, pursuant to its statutoryobligation, already has in place such a plan entitled "The Olive Bridge Dam of AshokanReservoir Emergency Action Plan" (ECL 15-0507 [1]).