IN RE: BEN-MIL ASSOCIATES (1997)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: BEN-MIL ASSOCIATES, Appellant, v. TOWN OF ISLIP, Respondent.

Decided: January 13, 1997

Before MANGANO, P.J., and O'BRIEN, PIZZUTO and GOLDSTEIN, JJ.

Siegel Fenchel & Peddy, P.C., Garden City, (Loren B. Schindler, of counsel), for appellant. Vincent J. Messina, Jr., Town Attorney, Islip, (Ernest J. Cannava, of counsel), for respondent.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondent Town of Islip to reopen Raft Avenue, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Stark, J.), dated March 16, 1995, which dismissed the petition as time-barred.

ORDERED that the judgment is affirmed, with costs.

The instant proceeding was brought more than four months after the determination to close Raft Avenue became final and binding (see, Matter of Vil. of Westbury v. Department of Transp., 75 N.Y.2d 62, 72, 550 N.Y.S.2d 604, 549 N.E.2d 1175). Accordingly, the proceeding is time-barred (see, CPLR 217). The petitioner's contention that the Statute of Limitations would not begin to run until the respondent refused to reopen Raft Avenue is unpreserved for appellate review, and, in any event, is without merit (see, Austin v. Board of Higher Educ. of City of N.Y., 5 N.Y.2d 430, 442, 186 N.Y.S.2d 1, 158 N.E.2d 681).

MEMORANDUM BY THE COURT.

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