| Matter of Agoglia v Benepe |
| 2010 NY Slip Op 07749 [77 AD3d 927] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of James Agoglia, Appellant, et al.,Petitioners, v Adrian Benepe, Commissioner of the New York City Department of Parksand Recreation, et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and ScottSchorr of counsel), for respondents Adrian Benepe and the New York City Department of Parksand Recreation. Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek, MonicaWagner, Norman Spiegel, and Janice Dean of counsel), for respondents Denise M. Sheehan andthe New York State Department of Environmental Conservation.
In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents to removecertain sand dunes from public park land and a beach in Belle Harbor, the petitioner JamesAgoglia appeals, as limited by his brief, from so much of an order and judgment (one paper) ofthe Supreme Court, Queens County (Taylor, J.), dated March 13, 2009, as granted the motion ofAdrian Benepe and the New York City Department of Parks and Recreation to dismiss thepetition pursuant to CPLR 3211 (a) and dismissed the proceeding.
Ordered that the order and judgment is modified, on the law, (1) by adding a provisionthereto converting the proceeding to an action to abate and recover damages for a publicnuisance, deeming the notice of petition to be the summons, and deeming the petition to be thecomplaint (see CPLR 103 [c]), (2) by deleting the provision thereof granting that branchof the motion which was to dismiss the third cause of action pursuant to CPLR 3211 (a) insofaras asserted by the appellant, and substituting therefor a provision granting that branch of themotion only to the extent of dismissing any claim to recover damages incurred more than threeyears prior to the commencement of this proceeding, and (3) by deleting the provision thereofgranting that branch of the motion which was to dismiss so much of the first cause of action assought mandamus to review a determination of the New York City Department of Parks pursuantto CPLR 3211 (a) (3), and substituting therefor a provision granting that branch of the motionwhich was to dismiss so much of that cause of action as premature; as so modified, the order andjudgment is affirmed insofar as appealed from, with costs to the appellant, and the matter isremitted to the Supreme Court, Queens County, for the entry of an order amending the captionaccordingly.
The petitioner James Agoglia (hereinafter the petitioner) lives adjacent to Rockaway Beachin Belle Harbor, Queens. In or around March 1997, the New York City Department of Parks and[*2]Recreation (hereinafter NYC Parks) constructed dunes on thepublic beach at Beach 138th to Beach 142nd. In June 2006 the petitioner requested that NYCParks remove the dunes, challenging the process by which they were initially constructed, andstating that the dunes had grown substantially in size such that they blocked beach access at thesubject streets and had become a safety hazard. In a letter dated July 12, 2006, the Commissionerof NYC Parks responded that the New York State Department of Environmental Conservation(hereinafter the DEC) had recently inspected the dunes and was in the process of preparing areport. The letter also advised that NYC Parks planned to meet with the DEC after the report wasissued and, until a resolution was reached between the agencies, no action would be taken on thedunes. In a letter dated August 9, 2006, NYC Parks informed the petitioner that the DEC reportwas expected within weeks, and that it would be imprudent to act without an understanding ofthe DEC's position and recommendations.
The petitioners then commenced this proceeding, inter alia, to review NYC Parks'determination and to compel NYC Parks and the DEC to remove the dunes. The respondentsmoved to dismiss the petition on several grounds. The Supreme Court dismissed the petition onthe ground of lack of standing. The petitioner James Agoglia appeals.
The Supreme Court erred in determining that the petitioner lacked standing to bring thisproceeding (see Matter of Save the PineBush, Inc. v Common Council of City of Albany, 13 NY3d 297, 306 [2009]; Societyof Plastics Indus. v County of Suffolk, 77 NY2d 761, 773-775 [1991]; Matter ofSun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406,414 [1987]; Matter of Duke & Benedict v Town of Southeast, 253 AD2d 877 [1998]).However, we find that dismissal of many of the petitioner's claims was proper on alternativegrounds under CPLR 3211 (a) (see Parochial Bus Sys. v Board of Educ. of City of N.Y.,60 NY2d 539 [1983]).
The second cause of action, asserted against the DEC, should have been dismissed for failureto state a cause of action upon which relief may be granted. "[M]andamus does not lie to enforcethe performance of a duty that is discretionary, as opposed to ministerial" (New York Civ. Liberties Union v State ofNew York, 4 NY3d 175, 184 [2005]). Enforcement of environmental permit regulationsinvolves "questions of judgment, discretion and the allocation of the resources and prioritieswhich are inappropriate for resolution in the judicial arena" (Matter of Kerness v Berle,85 AD2d 695, 696 [1981], affd 57 NY2d 1042 [1982]; see Matter of Kroll v Villageof E. Hampton, 293 AD2d 614 [2002]; Matter of Dyno v Village of Johnson City,261 AD2d 783 [1999]).
The remainder of the petition is asserted against NYC Parks, which moved to dismiss thepetition on the further grounds of untimeliness, laches, and failure to state a cause of action. Thatbranch of NYC Parks' motion which was to dismiss the fifth through eighth causes of action forfailure to state a cause of action should have been granted, since the petitioners failed to opposethat branch of the motion (see Sanchez v Village of Ossining, 271 AD2d 674 [2000];Rivera v Pocono Whitewaters Adventures, 241 AD2d 381 [1997]).
The fourth cause of action alleging violations of the New York City Charter and permitregulations in the initial construction of the dunes in 1997 should have been dismissed astime-barred. The determination to construct the dunes in the first instance was final and binding,at the latest, when the dunes were erected. Accordingly, challenges to the procedures utilized inmaking that determination are time-barred (see CPLR 217 [1]; 7801 [1]; Matter ofDouglaston & Little Neck Coalition v Sexton, 145 AD2d 480 [1988]).
So much of the first cause of action as sought mandamus to compel NYC Parks to removethe dunes should have been dismissed for failure to state a cause of action, since "mandamusdoes not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial"(New York Civ. Liberties Union v State of New York, 4 NY3d at 184).
So much of the first cause of action as sought mandamus to review NYC Parks'determination not to remove the dunes should have been dismissed as premature. A CPLR article78 proceeding to review a determination of a public body or officer must be brought within fourmonths of the [*3]date which the determination is "final andbinding upon the petitioner" (CPLR 217 [1]; see CPLR 7801 [1]; Matter of Carter vState of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). The Court of Appealshas identified two requirements for fixing the time when agency action is final and binding uponthe petitioner. "First, the agency must have reached a definitive position on the issue that inflictsactual, concrete injury and second, the injury inflicted may not be prevented or significantlyameliorated by further administrative action or by steps available to the complaining party" (Matter of Best Payphones, Inc. vDepartment of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]; seeMatter of Essex County v Zagata, 91 NY2d 447, 454 [1998]; Matter of Putnam v City ofWatertown, 213 AD2d 974 [1995]). Here, neither the July 12, 2006, or August 9, 2006,letters from NYC Parks constitutes final agency action subject to judicial review. NYC Parks hadnot reached a definitive position on the issue of whether the dunes would be removed and theletters indicated that further agency action would be forthcoming. Accordingly, the requirementof finality was not met and the claim should have been dismissed as not ripe for judicial review(see CPLR 7801 [1]; Matter of Best Payphones, Inc. v Department of Info. Tech. &Telecom. of City of N.Y., 5 NY3d at 34; Matter of Essex County v Zagata, 91 NY2dat 454; Matter of Putnam v City of Watertown, 213 AD2d 974 [1995]). We note thatripeness is a matter pertaining to subject matter jurisdiction which may be raised at any time,including sua sponte (see 333 CherryLLC v Northern Resorts, Inc., 66 AD3d 1176, 1178 n 3 [2009]).
However, the third cause of action should not have been dismissed except insofar as it soughtto recover damages incurred more than three years prior to the commencement of thisproceeding. Contrary to NYC Parks' contention, the petitioner sufficiently pleaded a cause ofaction to abate and recover damages for a public nuisance. "A public nuisance exists for conductthat amounts to a substantial interference with the exercise of a common right of the public,thereby offending public morals, interfering with the use by the public of a public place orendangering or injuring the property, health, safety or comfort of a considerable number ofpersons" (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292[2001]). A private action to abate a public nuisance exists only if it is shown that the personseeking relief suffered special injury beyond that suffered by the community at large. The injurymust be different in kind than that suffered by the entire community, not simply different indegree (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d at 292-294;Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334 [1983]; Booth v Hanson Aggregates N.Y., Inc.,16 AD3d 1137 [2005]; Wheeler v Lebanon Val. Auto Racing Corp., 303 AD2d 791[2003]). Here, in addition to the alleged environmental injuries, the petition alleged that thedunes adversely affected property values on the subject streets, a harm not suffered by thecommunity at large (see Ackerman v True, 175 NY 353, 360 [1903]). Accepting, as wemust, this allegation as true (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman,Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]), the petitioner adequately stated acause of action to abate a public nuisance. Further, a public nuisance is a continuing harm anddamages are recoverable to the extent they are incurred during the three years prior to thecommencement of the action (see CPLR 214 [4]; 7806; State of New York v GeneralElec. Co., 199 AD2d 595 [1993]).
We note that although the petitioner commenced this proceeding as one pursuant to CPLRarticle 78, he sought certain relief that is cognizable only in an action at law. Since the third causeof action is the only one to survive, we convert the proceeding to an action to abate and recoverdamages for a public nuisance, and we remit the matter to the Supreme Court, Queens County,for the entry of an order amending the caption accordingly (see CPLR 103 [c]; Matterof Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 5 [1976];Matter of Steve's Star Serv. v County of Rockland, 278 AD2d 498 [2000]). Santucci,J.P., Balkin, Leventhal and Austin, JJ., concur.
[Recalled and vacated, see 84 AD3d 1072.]