| Becker-Manning, Inc. v Common Council of City ofUtica |
| 2014 NY Slip Op 00758 [114 AD3d 1143] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| —Becker-Manning, Inc., Appellant, v CommonCouncil of City of Utica et al., Respondents. |
—[*1] Mark Curley, Corporation Counsel, Utica (William M. Borrill of counsel), fordefendants-respondents Common Council of City of Utica, Planning Board of City ofUtica and Zoning Board of Appeals of City of Utica. Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), fordefendant-respondent Benderson Development Company, Inc.
Appeal from an order and judgment (one paper) of the Supreme Court, OneidaCounty (Bernadette T. Clark, J.), entered February 6, 2013. The order and judgmentgranted defendants' motions to dismiss the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimouslyaffirmed with costs.
Memorandum: In this action seeking a judgment declaring that plaintiff's two parcelsof property were zoned two-family residential, plaintiff appeals from an order andjudgment that dismissed the complaint. Supreme Court granted defendants' motions todismiss the complaint upon determining, inter alia, that no justiciable controversy waspresented because the municipal defendants conceded that plaintiff's parcels were indeedzoned two-family residential. "Pursuant to CPLR 3001, . . . [S]upreme[C]ourt may render a declaratory judgment . . . as to the rights and otherlegal relations of the parties to a justiciable controversy. A declaratory judgment actionthus requires an actual controversy between genuine disputants with a stake in theoutcome, and may not be used as a vehicle for an advisory opinion" (Matter of Green Thumb LawnCare, Inc. v Iwanowicz, 107 AD3d 1402, 1405 [2013] [internal quotation marksomitted]). Plaintiff in its main brief does not challenge that determination by the courtand thus, having failed to present any argument with respect to that dispositivedetermination, plaintiff is deemed to have abandoned any contentions with respect to itspropriety (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]). We notethat, insofar as plaintiff's reply brief may be read to contend that the action presents ajusticiable controversy, it is well settled that a contention raised for the first time in areply brief is not properly before us (see Stubbs v Capellini, 108 AD3d 1057, 1059 [2013]; Turner v [*2]Canale, 15 AD3d 960, 961 [2005], lv denied5 NY3d 702 [2005]).
In addition to determining that no justiciable controversy was presented, the courtalso determined that the action was time-barred, an alternative dispositive determination.Plaintiff contends that the court erred in that respect because the municipal defendantsfailed to conduct a review pursuant to the State Environmental Quality Review Act([SEQRA] ECL art 8) prior to enacting the legislation that rezoned the parcels at issue,and the statute of limitations does not begin to run in such a case until the review isundertaken. That contention is without merit. "The Court of Appeals has consistentlystated that in a proceeding alleging a SEQRA violation in the enactment of legislation,the challenge must be commenced within four months of the date of its enactment" (Beneke v Town of SantaClara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007],citing Matter of Eadie v TownBd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter ofSave the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]). Like theSecond Department, we have found "no reported case where any period longer than thefour-month statute of limitations of CPLR 217 has been applied to SEQRA challenges"(Matter of Dandomar Co., LLCv Town of Pleasant Val. Town Bd., 86 AD3d 83, 94 [2011]). Furthermore, "[t]othe extent that any of plaintiff's causes of action emanating from this issue could properlyfall under a declaratory judgment action, those issues would be time-barred as well"(Beneke, 36 AD3d at 1197).
Inasmuch as plaintiff presented no argument with respect to the court's determinationthat there was no justiciable controversy and failed to cite or discuss the law applicable tothe court's alternative determination that the action was time-barred, we affirm withcosts. Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.