| Matter of Agoglia v Benepe |
| 2011 NY Slip Op 04242 [84 AD3d 1072] |
| May 17, 2011 |
| 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. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek, MonicaWagner, Norman Spiegel, and Janice Dean of counsel), for respondents Denise M. Sheehan andNew York State Department of Environmental Conservation.
Motion by the respondents Adrian Benepe and New York City Department of Parks andRecreation for leave to reargue an appeal from an order and judgment (one paper) of the SupremeCourt, Queens County, dated March 13, 2009, which was determined by decision and order ofthis Court dated October 26, 2010, or, in the alternative, for leave to appeal to the Court ofAppeals from the decision and order of this Court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the branch of the motion which is for leave to reargue is granted; and it isfurther,
Ordered that the motion is otherwise denied; and it is further,
Ordered that, upon reargument, the decision and order of this Court dated October 26, 2010(Matter of Agoglia v Benepe, 77AD3d 927 [2010]), is recalled and vacated, and the following decision and order issubstituted therefor:
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, [*2]Queens County (Taylor, J.), dated March13, 2009, as granted the motion of Adrian Benepe and the New York City Department of Parksand Recreation to dismiss the petition pursuant to CPLR 3211 (a) and dismissed the proceeding.Presiding Justice Prudenti has been substituted for former Justice Santucci (see 22 NYCRR670.1 [c]).
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 oneyear and 90 days prior to the commencement of this proceeding, and (3) by deleting theprovision thereof granting that branch of the motion which was to dismiss so much of the firstcause of action as sought mandamus to review a determination of the New York City Departmentof Parks pursuant to CPLR 3211 (a) (3), and substituting therefor a provision granting thatbranch of the motion which was to dismiss so much of that cause of action as premature; as somodified, the order and judgment is affirmed insofar as appealed from, with costs to theappellant, and the matter is remitted to the Supreme Court, Queens County, for the entry of anorder amending the caption accordingly.
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 andRecreation (hereinafter NYC Parks) constructed dunes on the public beach at Beach 138th toBeach 142nd. In June 2006 the petitioner requested that NYC Parks remove the dunes,challenging the process by which they were initially constructed, and stating that the dunes hadgrown substantially in size such that they blocked beach access at the subject streets and hadbecome a safety hazard. In a letter dated July 12, 2006, the Commissioner of NYC Parksresponded that the New York State Department of Environmental Conservation (hereinafter theDEC) had recently inspected the dunes and was in the process of preparing a report. The letteralso advised that NYC Parks planned to meet with the DEC after the report was issued and, untila resolution was reached between the agencies, no action would be taken on the dunes. In a letterdated August 9, 2006, NYC Parks informed the petitioner that the DEC report was expectedwithin weeks, and that it would be imprudent to act without an understanding of the DEC'sposition 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 the[*3]petition on the further grounds of untimeliness, laches, andfailure to state a cause of action. That branch of NYC Parks' motion which was to dismiss thefifth through eighth causes of action for failure to state a cause of action should have beengranted, since the petitioners failed to oppose that branch of the motion (see Sanchez vVillage of Ossining, 271 AD2d 674 [2000]; Rivera v Pocono WhitewatersAdventures, 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 date which the determination is "final and binding upon the petitioner" (CPLR 217[1]; see CPLR 7801 [1]; Matter of Carter v State of N.Y., Exec. Dept., Div. ofParole, 95 NY2d 267, 270 [2000]). The Court of Appeals has identified two requirements forfixing the time when agency action is final and binding upon the petitioner. "First, the agencymust have reached a definitive position on the issue that inflicts actual, concrete injury andsecond, the injury inflicted may not be prevented or significantly ameliorated by furtheradministrative 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 one year and 90 days 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 (see 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 [*4]nuisance.
Further, a public nuisance is a continuing harm and damages are recoverable against amunicipal defendant to the extent they are incurred during the one year and 90 days prior to thecommencement of the action (see General Municipal Law § 50-i [1] [c]; §50-k [6]; Baumler v Town of Newstead, 198 AD2d 777 [1993]; see also State of NewYork v General Elec. Co., 199 AD2d 595 [1993]). Although, in support of its motion in theSupreme Court, NYC Parks, relying on CPLR 214 (4), argued that any recovery on the publicnuisance cause of action should be limited to the three years preceding the commencement of thisproceeding, the statute of limitations that actually applies is one year and 90 days (seeGeneral Municipal Law § 50-i [1] [c]; § 50-k [6]). Accordingly, while that cause ofaction should not have been dismissed in its entirety, it must be dismissed to the extent that itseeks to recover damages incurred more than one year and 90 days prior to the commencement ofthis proceeding.
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]). Prudenti, P.J.,Balkin, Leventhal and Austin, JJ., concur.