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


Decided: November 13, 2003

Before:  CREW III, J.P., SPAIN, CARPINELLO, ROSE and KANE, JJ. Walsh & Walsh, Saratoga Springs (Marian Wait Walsh of counsel), for appellant. Tabner, Ryan & Keniry, Albany (William H. Keniry of counsel), for Gene Black and others, respondents. Bartlett, Pontiff, Stewart & Rhodes P.C., Glens Falls (Karla Williams Buettner of counsel) and Stafford, Carr & McNally P.C., Lake George, for Kenneth Erminger, respondent. The Jones Firm, Saratoga Springs (Matthew Chivers of counsel), for Jean M. Rooney and another, respondents.

Appeal from a judgment of the Supreme Court (Moynihan Jr., J.), entered November 26, 2002 in Warren County, which, inter alia, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, partially granted a motion by respondents Jean M. Rooney and Michael R. Micheli to dismiss the petition/complaint.

In June 2002, petitioner commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge the 1998 approval by respondent Town of Lake George Planning Board (hereinafter the Board) to subdivide Cooper Point Island in the Town of Lake George, Warren County, and its 2002 approval which slightly altered the property lines of the previously subdivided parcels.   Petitioner also sought a declaration that the remaining respondents, the Island owners and their contract vendee, failed to comply with conditions earlier imposed by the Board.   Respondents Jean M. Rooney and Michael R. Micheli brought a preanswer motion to dismiss.   The other respondents raised affirmative defenses in their answers or cross-moved to dismiss.   Supreme Court severed the declaratory judgment cause of action (5th cause of action) and joined it with a related action.1  The court dismissed the cause of action alleging lack of notice of the 1998 and 2002 public hearings (2nd cause of action).   The court also dismissed, as time barred, the remaining causes of action to the extent that they challenged the 1998 approval, the challenge to the 2002 approval's classification as a minor subdivision, and the Board's application of a zoning classification.   Petitioner appeals.

 In determining motions to dismiss under CPLR 7804(f) or 3211, the “court may not look beyond the petition and must accept all” its allegations as true (Matter of Scott v. Commissioner of Correctional Servs., 194 A.D.2d 1042, 1043, 600 N.Y.S.2d 639 [1993];  see Matter of Mattioli v. Casscles, 50 A.D.2d 1013, 377 N.Y.S.2d 264 [1975] ).   Only affidavits submitted by petitioner and exhibits attached to the petition may be considered on such a preanswer motion (see Matter of Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v. State Educ. Dept., 116 A.D.2d 939, 941, 498 N.Y.S.2d 516 [1986] ).   Although Supreme Court improperly considered affidavits submitted by respondents, the petition, exhibits and affidavits submitted by petitioner provide sufficient support for the court's decision.

 State law and Town subdivision regulations only required notice of the Board's public hearings on the 1998 and 2002 subdivision approvals by publication in a local newspaper (see Town Law § 276[5][d][ii];  Town of Lake George Code § 150-7[E] ).   Such publication accorded petitioner with all the notice to which it was entitled.   Because petitioner did not allege that the Board's informal notice policy was motivated by an intent to discriminate on the basis of impermissible considerations, petitioner did not properly allege that the Board's failure to provide it individualized notice created a constitutional equal protection violation (see Matter of Northway 11 Communities v. Town Bd. of Town of Malta, 300 A.D.2d 786, 788-789, 751 N.Y.S.2d 658 [2002] ).   Thus, Supreme Court properly dismissed petitioner's second cause of action claiming inadequate notice.

 A 30-day statute of limitations applies to any challenges concerning the Board's decisions (see Town Law §§ 267-c, 282).   To determine when the statute of limitations began, a court must first ascertain what administrative decision is actually being presented for review, then determine when that decision became final and binding (see Matter of City of Saratoga Springs v. Zoning Bd. of Appeals of Town of Wilton, 279 A.D.2d 756, 758, 719 N.Y.S.2d 178 [2001], appeal withdrawn 96 N.Y.2d 915, 732 N.Y.S.2d 631, 758 N.E.2d 657 [2001] ).   Challenges to the Board's 1998 subdivision approval are time barred, and references or reaffirmations of that approval in the 2002 approval do not renew or revive the limitations period for the 1998 decision (see Matter of Save the Pine Bush v. Town Bd. of Town of Guilderland, 272 A.D.2d 689, 691-692, 707 N.Y.S.2d 698 [2000] ).

 Petitioner's attempts to estop respondents from asserting a statute of limitations defense is unavailing.   Although inducement “by fraud, misrepresentations or deception to refrain from filing a timely action” can result in such estoppel (Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978];  see Matter of Saferstein v. Lawyers' Fund for Client Protection, 298 A.D.2d 726, 727-728, 748 N.Y.S.2d 438 [2002], lv. denied 99 N.Y.2d 505, 755 N.Y.S.2d 711, 785 N.E.2d 733 [2003] ), that remedy “is generally unavailable against a municipality” (Matter of Platzman v. Munno, 282 A.D.2d 539, 539, 722 N.Y.S.2d 886 [2001];  see Matter of Gelbard v. Board of Zoning Appeals of Inc. Vil. of New Hyde Park, 238 A.D.2d 419, 420, 657 N.Y.S.2d 361 [1997], lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 260, 692 N.E.2d 129 [1998] ).   Additionally, here, there is no allegation that the Board engaged in any fraud, misrepresentation or deception upon which petitioner relied.   The Board cannot be estopped from raising the statute of limitations based on alleged fraud and misrepresentations by the remaining respondents.   Supreme Court properly dismissed as time barred petitioner's challenges to the 1998 approval and narrowed challenges to the 2002 approval-which merely altered the property lines of the lots involved in the 1998 subdivision approval-so as to prevent review of any matter actually decided in 1998, but mentioned or reaffirmed in the later approval.2

 Supreme Court also properly severed the fifth cause of action and paired it with the related action for trial.   Severance may be ordered “[i]n furtherance of convenience” (CPLR 603;  see CPLR 407), and the trial court's determination will not be disturbed absent abuse of discretion or prejudice to a party's substantial rights (see Finning v. Niagara Mohawk Power Corp., 281 A.D.2d 844, 844, 722 N.Y.S.2d 613 [2001] ).   Petitioner was not deprived of its day in court on its fifth cause of action, but was simply required to share that day with the companion action rather than this CPLR article 78 proceeding.   Considering the similarity of issues presented, this solution was convenient for the court and the litigants.

ORDERED that the judgment is affirmed, without costs.


1.   This Court recently addressed summary judgment motions in the related action (see Green Harbour Homeowners' Assn. v. G.H. Dev. & Constr., 307 A.D.2d 465, 763 N.Y.S.2d 114 [2003] ).

2.   Such matters include the Board's zoning classification of the area encompassing the subdivision and the characterization of the application as a “minor” subdivision approval.



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