| Mary K. v Levy |
| 2013 NY Slip Op 05678 [109 AD3d 587] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Mary K., Appellant, v Steve Levy, in His OfficialCapacity of Suffolk County Executive, et al., Respondents. |
—[*1] Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Rudolph A. Baptiste ofcounsel), for respondent Steve Levy. Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing andValerie Figueredo of counsel), for respondent Sean Byrne.
In an action for injunctive and declaratory relief, the plaintiff appeals (1) from anorder of the Supreme Court, Suffolk County (Pitts, J.), dated December 15, 2011, whichgranted those branches of the defendants' separate motions which were pursuant toCPLR 3211 (a) to dismiss the first, second, and third causes of action insofar as assertedagainst each of them, and (2) as limited by her brief, from so much of a judgment of thesame court entered February 16, 2012, as, upon the order, is in favor of the defendantsand against her, dismissing those causes of action.
Ordered that the appeal from the order is dismissed, without costs or disbursements;and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the first cause of action; as so modified, the judgment is affirmed insofar asappealed from, without costs or disbursements, those branches of the defendants'separate motions which were pursuant to CPLR 3211 (a) to dismiss the first cause ofaction insofar as asserted against each of them are denied, the first cause of action isreinstated and severed, and the order is modified accordingly.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff was convicted of attempted kidnapping in California in 1993. She wassentenced to time served and a period of probation, and thereafter moved to New York,where she [*2]had previously resided. In 1996, the Boardof Examiners of Sexual Offenders (hereinafter the Board) determined that, because ofher California conviction, the plaintiff was required to register under New York's SexOffender Registration Act (see Correction Law article 6-C; hereinafter SORA).The New York State Division of Criminal Justice Services (hereinafter the DCJS) thenclassified her as a level one sex offender.
In 2006, Suffolk County adopted Local Law No. 12-2006 of the County of Suffolkwhich, among other things, prohibited sex offenders, including those classified as levelone offenders, from residing within one quarter of a mile of a school or playground(see Suffolk County Code § 745-3 [A]). Based on this prohibition, SuffolkCounty, in 2009, ordered the plaintiff to be removed from the community residence inwhich she was living.
In 2011, the plaintiff commenced the instant action against the Suffolk CountyExecutive and the Acting Commissioner of the DCJS for declaratory and injunctiverelief. In the first cause of action, she sought a judgment declaring that Local Law No.12-2006 of the County of Suffolk is preempted by state law. In the second and thirdcauses of action, she sought, inter alia, a judgment declaring that the determinationrequiring her to register under SORA violated her right to procedural due process. Thedefendants filed separate pre-answer motions to dismiss the complaint insofar as assertedagainst each of them. On appeal, the plaintiff contends that the Supreme Court erred indismissing the first, second, and third causes of action.
The Supreme Court properly dismissed the second and third causes of action. Even ifthe Board's determination requiring the plaintiff to register under SORA could bechallenged in an action for declaratory relief, the second and third causes of action areuntimely, as they were asserted approximately 15 years after the challengeddetermination was rendered (see CPLR 213 [1]). Moreover, the harm allegedemanates from a distinct act of the Board, and does not constitute a "continuing harm"which would indefinitely extend the statute of limitations (see Matter of Federation ofMental Health Ctrs. v DeBuono, 275 AD2d 557, 560 [2000]; see also Solnick vWhalen, 49 NY2d 224, 233 [1980]).
However, the Supreme Court erred in dismissing the first cause of action, whichsought a judgment declaring that Local Law No. 12-2006 of the County of Suffolk ispreempted by state law. As that claim challenges the constitutionality of a legislativeenactment, and not the particular administrative conduct taken pursuant thereto, adeclaratory judgment action, and not a CPLR article 78 proceeding, is the properprocedural vehicle for asserting the claim (see Town of Brookhaven v State of NewYork, 142 AD2d 338, 340 [1988]; see also Press v County of Monroe, 50NY2d 695, 702 [1980]). Moreover, because the applicability of an invalid statute, asopposed to the discrete act of an administrative agency, does represent a continuingharm, no period of limitation is applicable (see Amerada Hess Corp. vAcampora, 109 AD2d 719, 722 [1985]). Finally, the complaint sufficiently states acause of action alleging preemption (see Matter of Chwick v Mulvey, 81 AD3d 161, 167-170[2010]).
The plaintiff's remaining contention is not properly before this Court. Mastro, J.P.,Hall, Lott and Sgroi, JJ., concur.