IN RE: Kelly CACI (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to annul a determination of the Board of Education of the Cornwall Central School District dated May 22, 2023, and two resolutions of the Board of Education of the Cornwall Central School District, both dated July 10, 2023, the petitioners appeal from an order and judgment (one paper) of the Supreme Court, Orange County (Timothy P. McElduff, J.), dated March 11, 2024.  The order and judgment, insofar as appealed from, granted those branches of the motion of the Board of Education of the Cornwall Central School District which were pursuant to CPLR 3211(a) to dismiss those branches of the petition which were to annul the determination of the Board of Education of the Cornwall Central School District dated May 22, 2023, and two resolutions of the Board of Education of the Cornwall Central School District, both dated July 10, 2023, and dismissed those portions of the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The petitioners commenced this proceeding pursuant to CPLR article 78 alleging, inter alia, that the respondent, Board of Education of the Cornwall Central School District (hereinafter the Board), violated the State Environmental Quality Review Act (SEQRA) (ECL art 8) when reviewing a plan to construct a sports field.  The Board moved, among other things, pursuant to CPLR 3211(a) to dismiss those branches of the petition which were to annul the Board's determination dated May 22, 2023, and two resolutions of the Board, both dated July 10, 2023.  In an order and judgment dated March 11, 2024, the Supreme Court, inter alia, granted those branches of the Board's motion and dismissed those portions of the proceeding.  The petitioners appeal.

CPLR 217(1) states that “[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact.”  “Such determination is final and binding when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury” (Matter of Velardi–Ward v. New York State Dept. of Envtl. Conservation, 227 A.D.3d 1090, 1090–1091, 210 N.Y.S.3d 778 [internal quotation marks omitted]).

Although the petitioners purport to challenge the Board's determination dated May 22, 2023, and two resolutions of the Board, both dated July 10, 2023, on the ground that they violated SEQRA, the Board issued the relevant final negative declaration pursuant to SEQRA on March 14, 2022, which was updated by the Board on April 21, 2022.  The negative declaration concerned, among other things, the construction of the sports field, and the minutes from the Board's meeting on March 14, 2022, indicate that the Board did “extensive research into the artificial turfs” and that “the toxicology and overall safety of the materials” were discussed.  The Board's negative declaration constitutes the final determination in this case for the purposes of CPLR 217 (see Stop–The–Barge v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S.2d 40, 803 N.E.2d 361;  Matter of Velardi–Ward v. New York State Dept. of Envtl. Conservation, 227 A.D.3d at 1090–1091, 210 N.Y.S.3d 778).  This proceeding was not commenced until July 21, 2023.  Thus, the Supreme Court properly determined that the petitioners failed to bring this proceeding to challenge the SEQRA determination within the requisite four-month statute of limitations (see Stop–The–Barge v. Cahill, 1 N.Y.3d at 223, 771 N.Y.S.2d 40, 803 N.E.2d 361;  Matter of Velardi–Ward v. New York State Dept. of Envtl. Conservation, 227 A.D.3d at 1090–1091, 210 N.Y.S.3d 778).

The petitioners’ remaining contention is improperly raised for the first time on appeal and, in any event, without merit.

CONNOLLY, J.P., FORD, VOUTSINAS and LANDICINO, JJ., concur.