| South Liberty Partners, L.P. v Town of Haverstraw |
| 2011 NY Slip Op 01995 [82 AD3d 956] |
| March 15, 2011 |
| Appellate Division, Second Department |
| South Liberty Partners, L.P., et al., Respondents, v Town ofHaverstraw et al., Appellants. |
—[*1] Joseph A. Maria, P.C., White Plains, N.Y. (Edward A. Frey of counsel), for appellant Townof Stony Point. Couch White, LLP, Albany, N.Y. (Joel M. Howard III and Donald J. Hillmann of counsel),for respondents.
In an action, inter alia, for a judgment declaring that a $135,000 sewer unit connection feeimposed pursuant to sections 137-21 and 137-22 of the Code of the Town of Haverstraw isunconstitutional and that the adoption of the sewer unit connection fee by the defendant JointRegional Sewage Board of the Town of Haverstraw and the enforcement of such fee are invalid,the defendants Town of Haverstraw and Joint Regional Sewage Board of the Town ofHaverstraw appeal, as limited by their brief, from so much of an order of the Supreme Court,Rockland County (Berliner, J.), dated October 29, 2009, as granted that branch of the plaintiffs'motion which was to strike their fourth affirmative defense based on the statute of limitations anddenied their cross motion for summary judgment dismissing the complaint insofar as assertedagainst them on the ground that it was time-barred, and the defendant Town of Stony Pointseparately appeals, as limited by its brief, from so much of the same order as granted thosebranches of the plaintiffs' motion which were to strike its second affirmative defense based onthe statute of limitations, third affirmative defense based on the failure to comply with CPLR7804, and fifth affirmative defense based on the failure to exhaust administrative remedies.
Ordered that the appeal from so much of the order as granted that branch of the plaintiffs'motion which was to strike the defendant Town of Stony Point's third and fifth affirmativedefenses is dismissed as academic, without costs or disbursements; and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the plaintiffs' motion which was to strike the fourth affirmative defense asserted bythe defendants Town of Haverstraw and Joint Regional Sewage Board of the Town ofHaverstraw insofar as it pertained to the claims for a judgment declaring that the adoption of thesewer unit connection fee by the defendant Joint Regional Sewage Board of the Town ofHaverstraw and the enforcement of such fee are invalid and substituting therefor a provisiondenying [*2]that branch of the motion, (2) by deleting theprovision thereof denying that branch of the cross motion of the defendants Town of Haverstrawand Joint Regional Sewage Board of the Town of Haverstraw which was for summary judgmentdismissing the claims for a judgment declaring that the adoption of the sewer connection fee bythe defendant Joint Regional Sewage Board of the Town of Haverstraw and the enforcement ofsuch fee are invalid, and substituting therefor a provision granting that branch of the crossmotion, and (3) by deleting the provision thereof granting that branch of the plaintiffs' motionwhich was to strike the defendant Town of Stony Point's second affirmative defense, andsubstituting therefor a provision denying that branch of the motion; as so modified, the order isaffirmed insofar as reviewed, without costs or disbursements.
To determine the limitations period applicable to a declaratory judgment action, "the courtmust 'examine the substance of that action to identify the relationship out of which the claimarises and the relief sought' " (Matter of Save the Pine Bush v City of Albany, 70 NY2d193, 202 [1987], quoting Solnick v Whalen, 49 NY2d 224, 229 [1980]). "[I]f the claimcould have been made in a form other than an action for a declaratory judgment and thelimitations period for an action in that form has already expired, the time for asserting the claimcannot be extended through the simple expedient of denominating the action one for declaratoryrelief" (New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]).Accordingly, "[i]f issues presented in a declaratory judgment action could have been raised in aproceeding pursuant to CPLR article 78, that action must be brought within four months of theact giving rise to the litigation" (SJL Realty Corp. v City of Poughkeepsie, 133 AD2d682, 683 [1987]; see Press v County of Monroe, 50 NY2d 695, 701 [1980]; Solnick vWhalen, 49 NY2d 224 [1980]).
Here, the plaintiffs could not have raised their challenge to the constitutionality andsubstance of the Code of the Town of Haverstraw §§ 137-21 and 137-22 in a CPLRarticle 78 proceeding, since it is not the proper vehicle for challenging the constitutionality of alegislative enactment (see Ames Volkswagen v State Tax Commn., 47 NY2d 345, 348[1979]; New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 254 [1976]),and is "unavailable to challenge the validity of a legislative act except where the challenge isdirected not at the substance of the ordinance but at the procedures followed in its enactment"(Annenberg v Environmental Control Bd. of Dept. of Envtl. Protection of City of N.Y.,220 AD2d 634, 635 [1995]; see New York City Health & Hosps. Corp. v McBarnette, 84NY2d at 203-204). Thus, the plaintiffs' claims challenging these sections of the Code of theTown of Haverstraw are subject to the six-year statute of limitations period set forth in CPLR213 (1) (see Solnick v Whalen, 49 NY2d at 229-230; American Ind. Paper Mills Supply Co., Inc. v County of Westchester,16 AD3d 443 [2005]). Further, contrary to the defendants' contention, those claims are nottime-barred. Although sections 137-21 and 137-22 were enacted by the Town Board of the Townof Haverstraw in 1990, the plaintiffs' claim did not accrue until July 2005 (see Aetna Life &Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Jacobus v Colgate, 217 NY 235, 245[1916]; Roldan v Allstate Ins. Co., 149 AD2d 20, 26 [1989]). Since the plaintiffscommenced this action on July 11, 2008, their claims challenging the constitutionality andvalidity of sections 137-21 and 137-22 of the Code of the Town of Haverstraw are timely.
However, the plaintiffs' claims for a judgment declaring that the adoption by the JointRegional Sewage Board of the Town of Haverstraw (hereinafter the JRSB) of the sewer unitconnection fee and the enforcement of such fee are invalid could have been resolved in a CPLRarticle 78 proceeding, since these are administrative actions (see Press v County ofMonroe, 50 NY2d at 702-704). Although the JRSB derives its authority to adopt charges andfees pursuant to sections 137-21 and 137-22 of the Code of the Town of Haverstraw, thechallenged sewer unit connection fee was adopted by means of a resolution by the Board of theJRSB and applied to the plaintiffs by contractual agreements between municipalities. The feewas of a limited duration in that, by statute, it is set and adopted annually by the JRSB(see Code of Town of Haverstraw § 137-21). These are factors characteristic ofadministrative action (see Press v County of Monroe, 50 NY2d at 703-704;International Paper Co. v Sterling Forest Pollution Control Corp., 105 AD2d 278,282-283 [1984]). Accordingly, the claims challenging these administrative actions aretime-barred, as those claims should have been brought in an article 78 proceeding (see Press vCounty of Monroe, 50 NY2d at 703-704; Matter of Frontier Ins. Co. v Town Bd. ofTown of Thompson, 252 AD2d 928, 930 [1998]; International Paper Co. v SterlingForest Pollution Control Corp., 105 AD2d at 282-283).[*3]
The appeal from so much of the order as granted thatbranch of the plaintiffs' motion which was to strike the third affirmative defense of the defendantTown of Stony Point based on the failure to comply with CPLR 7804 and the fifth affirmativedefense of that defendant based on the failure to exhaust administrative remedies must bedismissed as academic in light of our determination that the plaintiffs' claim insofar as it couldhave been raised in a CPLR article 78 proceeding is time-barred. Mastro, J.P., Rivera, Austin andRoman, JJ., concur.