FOLEY 282 282 v. MASIELLO

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

Matter of Joseph FOLEY, President, Buffalo Professional Firefighters Association, Local 282, and Buffalo Professional Firefighters Association, Local 282, Petitioners-Appellants, v. Anthony MASIELLO, as Mayor of City of Buffalo, City of Buffalo and Buffalo Fiscal Stability Authority, Respondents-Respondents.

Decided: March 16, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, SMITH, LUNN, AND GREEN, JJ. The Mattacola Law Firm, Rome (Gregory A. Mattacola of Counsel), for Petitioners-Appellants. Jaeckle Fleischmann & Mugel, LLP, Buffalo (Sean P. Beiter of Counsel), for Respondents-Respondents Anthony Masiello, as Mayor of City of Buffalo, and City of Buffalo. Harris Beach PLLC, Pittsford (A. Vincent Buzard of Counsel), for Respondent-Respondent Buffalo Fiscal Stability Authority.

 Petitioners appeal from a judgment granting the cross motion of respondent Buffalo Fiscal Stability Authority (BFSA) seeking dismissal of the petition as time-barred under the four-month statute of limitations applicable to CPLR article 78 proceedings.   Petitioners contend that this is a declaratory judgment action subject to the six-year statute of limitations because they are seeking, inter alia, a declaration that the wage freeze imposed by BFSA violates various provisions of both the United States and New York State Constitutions and thus that Supreme Court erred in granting the cross motion.   We reject that contention.  “The appropriate [s]tatute of [l]imitations is determined by the substance of the action and the relief sought” (Bennett Rd. Sewer Co. v. Town Bd. of Town of Camillus, 243 A.D.2d 61, 66, 672 N.Y.S.2d 587;  see New York City Health & Hosps. Corp. v. McBarnette, 84 N.Y.2d 194, 200-201, 616 N.Y.S.2d 1, 639 N.E.2d 740, rearg. denied 84 N.Y.2d 865, 618 N.Y.S.2d 9, 642 N.E.2d 328;  Press v. County of Monroe, 50 N.Y.2d 695, 701, 431 N.Y.S.2d 394, 409 N.E.2d 870;  Solnick v. Whalen, 49 N.Y.2d 224, 229-230, 425 N.Y.S.2d 68, 401 N.E.2d 190).  “[I]f the claim could have been made in a form other than an action for a declaratory judgment and the limitations period for an action in that form has already expired, the time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief” (New York City Health & Hosps. Corp., 84 N.Y.2d at 201, 616 N.Y.S.2d 1, 639 N.E.2d 740).

 Petitioners are correct that “a proceeding under article 78 is not the proper vehicle to test the constitutionality of legislative enactments” (Matter of Kovarsky v. Housing & Dev. Admin. of City of N.Y., 31 N.Y.2d 184, 191, 335 N.Y.S.2d 383, 286 N.E.2d 882).   Here, however, petitioners challenge the constitutionality of BFSA's action as applied to their members, not the constitutionality of the underlying state legislation that created BFSA and authorized it to impose a wage freeze if necessary (see Public Authorities Law § 3858[2][c] ), and “an article 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or regulation has been applied in an unconstitutional manner” (Kovarsky, 31 N.Y.2d at 191, 335 N.Y.S.2d 383, 286 N.E.2d 882;  see e.g. DiMiero v. Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 A.D.2d 875, 877, 606 N.Y.S.2d 92, lv. denied 83 N.Y.2d 756, 613 N.Y.S.2d 128, 635 N.E.2d 297;  Goodman v. Regan, 151 A.D.2d 958, 959-960, 542 N.Y.S.2d 998).   Further, although a CPLR article 78 proceeding is not the proper vehicle to challenge a legislative act (see Matter of Frontier Ins. Co. v. Town Bd. of Town of Thompson, 252 A.D.2d 928, 929, 676 N.Y.S.2d 298), it is the customary procedural vehicle for review of administrative determinations (see Solnick, 49 N.Y.2d at 231, 425 N.Y.S.2d 68, 401 N.E.2d 190).   Here, BFSA's action in imposing the wage freeze was administrative rather than legislative given “ ‘its individualized application, limited duration, and informal adoption, [i.e.], resolution by the governing body’ ” (Bennett Rd. Sewer Co., 243 A.D.2d at 66, 672 N.Y.S.2d 587, quoting International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278, 282, 482 N.Y.S.2d 827;  see Town of Webster v. Village of Webster, 280 A.D.2d 931, 933, 720 N.Y.S.2d 664;  cf. Frontier Ins. Co., 252 A.D.2d at 930, 676 N.Y.S.2d 298).   Thus, the court properly treated the proceeding as one pursuant to CPLR article 78.

The contention of petitioners that their time to commence the proceeding should be extended in the interest of justice pursuant to CPLR 306-b is raised for the first time on appeal and is therefore not properly before us (see Moss v. McKelvey, 32 A.D.3d 1281, 1283, 822 N.Y.S.2d 198;  Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).   In any event, that contention is without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: