IN RE: Beth–Ann PERMUY (2026)

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioners/plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Melissa A. Loehr, J.), dated October 6, 2020, and (2) an order and judgment (one paper) of the same court dated March 11, 2021.  The order denied the petitioners/plaintiffs’ motion for recusal of the Justice presiding.  The order and judgment, insofar as appealed from, granted the motion of the respondent/defendant Town Board of the Town of Yorktown pursuant to CPLR 3211(a) and 7804(f) to dismiss the causes of action for relief pursuant to CPLR article 78 and for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against it, granted those branches of the motion of the respondents/defendants George Hirsch, Francine Hirsch, and G.A.H. Building Corp. which were pursuant to CPLR 3211(a) and 7804(f) to dismiss the causes of action for relief pursuant to CPLR article 78 and for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against them, denied the amended petition, and dismissed the proceeding/action as time-barred.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the order and judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents/defendants appearing separately and filing separate briefs.

The appeal from the portions of the intermediate order that concern the causes of action for relief pursuant to CPLR article 78 must be dismissed because no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 (see id. § 5701[b][1] ), and we decline to grant leave to appeal in light of the entry of the order and judgment in this matter.  The appeal from the portions of the intermediate order that concern the causes of action for declaratory relief must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment in this matter (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the intermediate order are brought up for review and have been considered on the appeal from the order and judgment (see CPLR 5501[a][1] ).

On January 20, 2020, the petitioners/plaintiffs, current and former owners of property adjacent to or near commercial premises owned by the respondents/defendants George Hirsch and Francine Hirsch (hereinafter together the Hirsches), commenced this hybrid proceeding against the respondents/defendants, Town Board of the Town of Yorktown (hereinafter the Town Board), G.A.H. Building Corp. (hereinafter collectively with the Hirsches, the Hirsch defendants), and the Hirsches, individually and doing business as Yorktown Garden Supply, pursuant to CPLR article 78 to annul a resolution of the Town Board filed with the Town Clerk of the Town of Yorktown (hereinafter the Town Clerk) on September 26, 2019, and action for declaratory relief.  The Town Board moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the causes of action for relief pursuant to CPLR article 78 and for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against it, on the ground, among others, that the proceeding/action was time-barred pursuant to Town Law § 274–a.  The Hirsch defendants moved, inter alia, pursuant to CPLR 3211(a) and 7804(f) to dismiss the causes of action for relief pursuant to CPLR article 78 and for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against them, on the ground, among others, that the proceeding/action was time-barred pursuant to Town Law § 274–a.  The petitioners/plaintiffs opposed the motions.  Thereafter, the petitioners/plaintiffs moved for recusal of the Justice presiding.  In an order dated October 6, 2020, the Supreme Court denied the petitioners/plaintiffs’ motion.  Subsequently, in an order and judgment dated March 11, 2021, the court, inter alia, granted the Town Board's motion, granted those branches of the Hirsch defendants’ motion which were pursuant to CPLR 3211(a) and 7804(f) to dismiss the causes of action for relief pursuant to CPLR article 78 and for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against them, denied the amended petition, and dismissed the proceeding/action as time-barred.  The petitioners/plaintiffs appeal.

Contrary to the petitioners/plaintiffs’ contention, the Supreme Court providently exercised its discretion in denying their motion for recusal of the Justice presiding.  “In the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience” (Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191;  see Matter of Lew v. Sobel, 192 A.D.3d 799, 800–801, 145 N.Y.S.3d 133).  Here, the petitioners/plaintiffs failed to demonstrate the existence of any basis on the part of the Justice presiding that would have warranted recusal (see Busiello v. Whelan, 240 A.D.3d 736, 738, 240 N.Y.S.3d 409;  Brandford v. Brandford, 237 A.D.3d 793, 794, 229 N.Y.S.3d 242).

The Supreme Court also properly dismissed the proceeding as time-barred.  A respondent who seeks dismissal of a petition pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Matter of Mastromonaco v. Planning Bd. of the Town of Cortlandt, 240 A.D.3d 783, 785, 238 N.Y.S.3d 539;  Matter of Coden v. Town of Huntington, 235 A.D.3d 744, 745, 227 N.Y.S.3d 655).  The burden then shifts to the petitioner to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations or raising a question of fact as to whether such an exception applies or as to whether the cause of action was interposed within the applicable statute of limitations (see Matter of Mastromonaco v. Planning Bd. of the Town of Cortlandt, 240 A.D.3d at 785, 238 N.Y.S.3d 539;  Matter of Coden v. Town of Huntington, 235 A.D.3d at 745, 227 N.Y.S.3d 655).

A proceeding pursuant to CPLR article 78 to challenge a planning board's decision on a site plan application “shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk” (Town Law § 274–a[11] ).  Here, the respondents/defendants established, prima facie, that the petitioners/plaintiffs’ time to commence a CPLR article 78 proceeding to challenge the Town Board's resolution had expired, as the petition/complaint was filed more than 30 days after the resolution was filed with the Town Clerk.  Although the 30–day limitations period applicable to review of the site plan, special permit, or other land use determination is inapplicable where a local land use agency acts without jurisdiction in approving or denying a site plan, special permit, or other land use application (see Matter of Hampshire Mgt. Co., No. 20, LLC v. Feiner, 52 A.D.3d 714, 715, 860 N.Y.S.2d 204), a petitioner/plaintiff must demonstrate the existence of a jurisdictional defect to prevent the dismissal of a proceeding/action as time-barred (see Matter of Coden v. Town of Huntington, 235 A.D.3d at 746, 227 N.Y.S.3d 655;  Matter of Hampshire Mgt. Co., No. 20, LLC v. Feiner, 52 A.D.3d at 715, 860 N.Y.S.2d 204).  Here, the petitioners/plaintiffs failed to raise a question of fact as to whether the proceeding was timely or whether the Town Board exercised power outside the scope of its jurisdiction in adopting its resolution (see Town Law § 68[1][a];  [4];  JRP Old Riverhead Ltd. v. Town of Southampton, 44 A.D.3d 905, 909, 844 N.Y.S.2d 132).  Accordingly, the Supreme Court properly dismissed the proceeding as time-barred (see Matter of Mastromonaco v. Planning Bd. of the Town of Cortlandt, 240 A.D.3d at 785, 238 N.Y.S.3d 539;  Matter of Coden v. Town of Huntington, 235 A.D.3d at 745, 227 N.Y.S.3d 655).

Contrary to the petitioners/plaintiffs’ further contention, the Supreme Court also properly granted those branches of the separate motions of the Town Board and the Hirsch defendants which were for summary judgment dismissing the causes of action for declaratory relief insofar as asserted against each of them.  “An action for a declaratory judgment is generally governed by a six-year statute of limitations.  However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period” (Matter of Coden v. Town of Huntington, 235 A.D.3d at 746, 227 N.Y.S.3d 655 [internal quotation marks omitted];  see Save the View Now v. Brooklyn Bridge Park Corp., 156 A.D.3d 928, 931, 68 N.Y.S.3d 478).  Where a declaratory judgment action seeks an adjudication of rights that could be resolved in a proceeding pursuant to CPLR article 78, the statute of limitations applicable to a CPLR article 78 proceeding applies (see Matter of Coden v. Town of Huntington, 235 A.D.3d at 746, 227 N.Y.S.3d 655).  Here, the relief sought in the causes of action for declaratory relief was available in the context of a CPLR article 78 proceeding, and thus, the 30–day statute of limitations period also applied to those causes of action (see Town Law § 274–a[11];  Matter of Coden v. Town of Huntington, 235 A.D.3d at 746, 227 N.Y.S.3d 655).

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.