| Greece Town Mall, LP v Mullen |
| 2011 NY Slip Op 06803 [87 AD3d 1408] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| Greece Town Mall, LP, Appellant, v Dennis M. Mullen,Commissioner, New York State Department of Economic Development, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), fordefendant-respondent-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (David Michael Barry, J.),entered September 2, 2010 in a declaratory judgment action and CPLR article 78 proceeding. Thejudgment granted the motion of defendant-respondent to dismiss the complaint/petition.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby denying the motion in part, reinstating the first cause of action and severing that cause ofaction, and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff-petitioner (plaintiff) commenced this hybrid declaratory judgmentaction/CPLR article 78 proceeding seeking, inter alia, to annul the determination decertifyingplaintiff as an "Empire Zone" business pursuant to the Empire Zones Act (General MunicipalLaw § 955 et seq.). We conclude at the outset that plaintiff correctly concedes thatthe third and fourth causes of action seek relief pursuant to CPLR article 78, and we furtherconclude that the second and fifth causes of action also seek such relief. Those causes of actionconstitute challenges to the specific action of an administrative agency (see Matter of Aubin vState of New York, 282 AD2d 919, 921-922 [2001], lv denied 97 NY2d 606 [2001];see also Matter of Peckham Materials Corp. v Westchester County, 303 AD2d 511,511-512 [2003]; Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557, 558-560[2000]). Consequently, only the first cause of action properly seeks a declaration inasmuch asplaintiff thereby challenges certain regulations promulgated by defendant-respondent (defendant)as inconsistent with General Municipal Law § 959, rather than a particular agencydetermination or procedure (see Matterof Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66AD3d 678, 681 [2009]).
We reject the contention of plaintiff that Supreme Court erred in granting that part ofdefendant's motion to dismiss the CPLR article 78 proceeding, i.e., the second through fifthcauses of action. "[A] proceeding under [CPLR article 78] shall not be used to challenge adetermination . . . [that] is not final or can be adequately reviewed by appeal to acourt or to some [*2]other body or officer" (CPLR 7801 [1]). "Inorder to determine whether an agency determination is final, a two-part test is applied. 'First, theagency must have reached a definitive position on the issue that inflicts actual, concrete injuryand[,] second, the injury inflicted may not be prevented or significantly ameliorated by furtheradministrative action or by steps available to the complaining party' " (Matter of County of Niagara v Daines,79 AD3d 1702, 1704 [2010], lv denied 17 NY3d 703 [2011], quoting Matter of Best Payphones, Inc. vDepartment of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005], reargdenied 5 NY3d 824 [2005]; seeWalton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007];Stop-The-Barge v Cahill, 1 NY3d218, 223 [2003]).
Here, plaintiff challenges defendant's determination rendered June 29, 2009, but the injuryinherent in that determination could have been ameliorated by further administrative actionthrough an appeal to the Empire Zone Designation Board (hereafter, EZDB) (see GeneralMunicipal Law § 959 [w]; 5 NYCRR 14.2). Indeed, plaintiff challenged defendant'sdetermination in an administrative appeal to the EZDB, and the EZDB subsequently ruled on thatappeal. Consequently, the determination challenged by plaintiff is nonfinal (see generallyBest Payphones, Inc., 5 NY3d at 34; County of Niagara, 79 AD3d at 1704), and thecourt properly dismissed the CPLR article 78 proceeding (see CPLR 7801 [1]).
We further conclude, however, that the court erred in granting that part of the motion todismiss the declaratory judgment action, i.e., the first cause of action. That cause ofaction is governed by the six-year statute of limitations pursuant to CPLR 213 (1) (seeSolnick v Whalen, 49 NY2d 224, 229-230 [1980]), and thus the court erred to the extent thatit concluded that the first cause of action is time-barred. We therefore modify the judgment bydenying that part of the motion to dismiss the declaratory judgment action, and the first cause ofaction is reinstated and severed (seegenerally Matter of Coalition to Save Cedar Hill v Planning Bd. of Inc. Vil. of Port Jefferson,51 AD3d 666, 668 [2008], lv denied 11 NY3d 702 [2008]). Present—Fahey,J.P., Peradotto, Lindley, Sconiers and Green, JJ.