IN RE: Ingrid BEER (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cahill, J.), entered November 15, 2016 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motions to dismiss the petition.

In November 2015, respondent Town of New Paltz petitioned for the establishment of Water District No. 5, in order to provide potable water for its residents while its primary water source, the Catskill Aqueduct, which was operated by respondent City of New York, was being shut down for maintenance.  Following an environmental review under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), the Town Board of the Town of New Paltz adopted a negative declaration.  After a public hearing, the Town Board approved an order establishing Water District No. 5, and the order was recorded in the Ulster County Clerk's office in February 2016.

Petitioners, who own property within the area to be served by Water District No. 5, commenced this CPLR article 78 proceeding in June 2016 alleging that respondents failed to comply with the requirements of SEQRA.  Respondents separately moved to dismiss the petition on the basis that it was not timely commenced.  Supreme Court granted the motions and dismissed the petition as time-barred.  This appeal by petitioners ensued.  We affirm.

As an initial matter, we reject petitioners' assertion that respondents' motions were defective because respondents failed to specifically cite to CPLR 3211.  The notices of motion and supporting papers indicated that respondents intended to dismiss the petition on the basis that it was barred by the applicable statute of limitations.  In opposition to the motions, petitioners responded to this argument and contended that the proceeding was timely commenced.  Given that there was no misunderstanding as to respondents' ground for seeking dismissal of the petition, nor did petitioners suffer any prejudice by any failure by respondents to cite to CPLR 3211, the motions to dismiss were not fatally defective (see Matter of Blauman–Spindler v. Blauman, 68 A.D.3d 1105, 1106, 892 N.Y.S.2d 143 [2009] ).

Turning to the statute of limitations issue, the relevant time line is undisputed.  The order adopting the Town Board's resolution establishing Water District No. 5 was recorded in February 2016.  Meanwhile, petitioners did not commence this proceeding until June 2016.  Relying on CPLR 217(1), petitioners contend that the general four-month statute of limitations provided therein renders their petition timely.  Respondents counter that the four-month limitations period is inapplicable because a shorter limitations period is provided in the law authorizing petitioners' proceeding.  We agree with respondents.

Under CPLR 217(1), “[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.”  To that end, a proceeding challenging a determination or order of a town board establishing a water district must be commenced within 30 days after such determination or order is recorded in the county clerk's office (see Town Law § 195[2] ).  Our review of the petition's allegations discloses that petitioners are essentially challenging the establishment of Water District No. 5 and, therefore, the 30–day statute of limitations provided in Town Law § 195(2) controls.  Because over 30 days elapsed between the recording of the order and the commencement of this proceeding, Supreme Court correctly dismissed the petition as time-barred (see Matter of Herzog v. Town of Thompson, 251 A.D.2d 917, 919, 674 N.Y.S.2d 830 [1998], lv dismissed and denied 92 N.Y.2d 943, 681 N.Y.S.2d 471, 704 N.E.2d 224 [1998];  Matter of Niegocki v. Town of Brookhaven, 5 A.D.2d 999, 999, 173 N.Y.S.2d 323 [1958];  Matter of Evans v. Michaels, 5 A.D.2d 912, 913, 171 N.Y.S.2d 63 [1958], lv denied 4 N.Y.2d 678, 176 N.Y.S.2d 1025, 152 N.E.2d 255 [1958];  cf. Matter of J.B. Realty Enter. Corp. v. City of Saratoga Springs, 270 A.D.2d 771, 773–774, 704 N.Y.S.2d 742 [2000], lv denied 95 N.Y.2d 758, 713 N.Y.S.2d 522, 735 N.E.2d 1287 [2000] ).

Petitioners' attempt to skirt the 30–day limitations period by characterizing the proceeding as a challenge to the Town Board's SEQRA determination is unavailing (see Andzel v. Gaylord, 126 Misc.2d 406, 409, 482 N.Y.S.2d 683 [Sup. Ct., Erie County 1984];  cf. Matter of Parker v. Town of Gardiner Planning Bd., 184 A.D.2d 937, 939, 585 N.Y.S.2d 571 [1992], lv denied 80 N.Y.2d 761, 592 N.Y.S.2d 670, 607 N.E.2d 817 [1992] ).  Furthermore, inasmuch as petitioners are not challenging the Town's authority to impose special ad valorem levies for a special district, their reliance on Matter of Niagara Mohawk Power Corp. v. Town of Watertown, 6 N.Y.3d 744, 810 N.Y.S.2d 399, 843 N.E.2d 1138 (2005) and New York Tel. Co. v. Supervisor of Town of Oyster Bay, 4 N.Y.3d 387, 796 N.Y.S.2d 7, 828 N.E.2d 964 (2005) is misplaced.  Petitioners' remaining contentions have been considered and lack merit.

ORDERED that the judgment is affirmed, without costs.

Aarons, J.

Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur.