IN RE: NORTH SHORE FARMS (2008)

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

IN RE: NORTH SHORE FARMS, appellant, v. TOWN OF RIVERHEAD, etc., et al., respondents.

Decided: September 30, 2008

REINALDO E. RIVERA, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO and CHERYL E. CHAMBERS, JJ. Arthur V. Graseck, Jr., Islip Terrace, N.Y., for appellant. Jaspan Schlesinger Hoffman LLP, Garden City, N.Y. (Maureen T. Liccione and John C. Farrell of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to compel the Town of Riverhead and the Riverhead Town Board to issue a special use permit, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated April 5, 2007, which denied the petition and dismissed the proceeding as time-barred.

ORDERED that the judgment is affirmed, with costs.

In January 2005, at a meeting with Town officials, the petitioner received notice that its property had been rezoned to preclude its use as a composting business, and that its application for a special permit for that use of the property was considered academic.   The instant proceeding to compel the issuance of the special use permit was not commenced until approximately seven months later, in August 2005.   Accordingly, the Supreme Court properly concluded that the proceeding was time-barred by the four-month statute of limitations applicable to proceedings pursuant to CPLR article 78 (see CPLR 217;  Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 316, 821 N.Y.S.2d 142, 854 N.E.2d 464;  Joseph L. Balkan, Inc. v. City of New York, 41 A.D.3d 136, 838 N.Y.S.2d 34).

The petitioner's remaining contentions are either without merit or not properly before this Court.