Reset A A Font size: Print

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


Decided: February 24, 2009

PETER B. SKELOS, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and RANDALL T. ENG, JJ. Dawn C. Thomas, Town Attorney, Riverhead, N.Y. (Harold A. Steuerwald of counsel), for appellants. Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Stephen R. Angel and Nancy Silverman of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the adoption of an amendment to the Town of Riverhead Zoning Code is invalid and unconstitutional, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated September 10, 2007, as denied those branches of their motion which were to dismiss the complaint pursuant to CPLR 3211(a)(5) as time-barred and to dismiss the second cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

ORDERED that the order is affirmed, with costs.

The complaint challenges the validity and constitutionality of a Local Law amending the Town of Riverhead Zoning Code. The challenged Local Law is clearly legislative in nature, as evinced by its general applicability, indefinite duration, and formal adoption (see Frontier Ins. Co. v. Town Bd. of Town of Thompson, 252 A.D.2d 928, 930, 676 N.Y.S.2d 298;  International Paper Co. v. Sterling Forest Pollution Control Co., 105 A.D.2d 278, 282, 482 N.Y.S.2d 827).   Thus, a declaratory judgment action, not a CPLR article 78 proceeding, is the proper vehicle to challenge the validity of the defendants' action (see Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 271 N.E.2d 537;  Hudson Val. Oil Heat Council, Inc. v. Town of Warwick, 7 A.D.3d 572, 574, 777 N.Y.S.2d 157).   As a proceeding pursuant to CPLR article 78 is not a proper vehicle for challenging the legitimacy of the Local Law, the limitations period set forth in CPLR 217 is not applicable to this case (see Kamhi v. Town of Yorktown, 141 A.D.2d 607, 609, 529 N.Y.S.2d 528, affd. 74 N.Y.2d 423, 548 N.Y.S.2d 144, 547 N.E.2d 346), and the six-year statute of limitations set forth in CPLR 213(1) applies instead (see Solnick v. Whalen, 49 N.Y.2d 224, 229-230, 425 N.Y.S.2d 68, 401 N.E.2d 190).   Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was to dismiss the complaint as time-barred (see Caputo v. County of Suffolk, 275 A.D.2d 294, 295, 712 N.Y.S.2d 564;   Janiak v. Town of Greenville, 203 A.D.2d 329, 330, 610 N.Y.S.2d 286).

Contrary to the defendants' contention, “accept[ing] the facts as alleged in the complaint as true, accord[ing][the] plaintiffs the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Kass v. Zaslav, 55 A.D.3d 877, 865 N.Y.S.2d 577), the plaintiff presented a viable cause of action for declaratory relief (see Unanue v. Town of Gardiner, 105 A.D.2d 1025, 483 N.Y.S.2d 466).

Copied to clipboard